THE 

ENVIRONMENTAL 

COUNCIL OF 

THE STATES 

---------------------------- 

444 North Capitol Street, N.W. 

Suite 445 

Washington, D.C. 20001 

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Tel: (202) 624-3660 

Fax: (202) 624-3666 

Email: ecos@ecos.org

Webpage: www.ecos.org

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Richard Opper 

 Director, Montana Department of 

 Environmental Quality 

 PRESIDENT 

Thomas Burack 

 Commissioner, New Hampshire 

 Department of Environmental Services 

 VICE PRESIDENT 

Doug Scott 

 Director, Illinois Environmental 

 Protection Agency 

 SECRETARY-TREASURER 

Michael J. Linder 

 Director, Nebraska Department of 

 Environmental Quality 

 PAST PRESIDENT 

 

_____________ 

R. Steven Brown 

Executive Director 

 

 November 19, 2010 

U.S. Environmental Protection Agency 

Mailcode: 28221T 

1200 Pennsylvania Avenue, NW 

Washington, DC 20460 

Re: Docket No. EPA-HQ-RCRA-2009-0640 

Proposed Rulemaking – Hazardous and Solid Waste Management System; Identification 

and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric 

Utilities 

Dear Sir/Madam: 

On behalf of the Environmental Council of the States (ECOS), I am pleased to submit this 

comment letter on the “Proposed Rulemaking – Hazardous and Solid Waste Management 

System; Identification and Listing of Special Wastes; Disposal of Coal Combustion 

Residuals (CCR) from Electric Utilities,” published on June 21, 2010 in the Federal 

Register. 

ECOS is the non-profit, non-partisan association of state and territorial environmental 

commissioners. The association’s position on the regulation of CCR is articulated in 

Resolution 08-14, adopted on September 22, 2008 and revised on March 23, 2010, entitled, 

“The Regulation of Coal Combustion Products” (see Appendix 1). 

In the resolution, ECOS calls upon the U.S. Environmental Protection Agency (EPA) to 

conclude that additional federal CCR regulations would be duplicative of most state 

programs, are unnecessary, and should not be adopted, but if adopted must be developed 

under Subtitle D rather than Subtitle C of the Resource Conservation and Recovery Act 

(RCRA). ECOS believes that designating CCR a hazardous waste under RCRA Subtitle C 

could create stigma and liability concerns that could impact the beneficial use of CCR. 

ECOS thus urges the agency to begin a collaborative dialogue with the states to develop and 

promote a national framework for beneficial use of CCR including use principles and 

guidelines, and to accelerate the development of markets for this material. 

The ECOS resolution cites EPA’s repeated assessments in 1988, 1993, 1999, 2000, and 

2005 that CCR disposal does not warrant regulation as hazardous wastes under RCRA. 

Moreover, ECOS agrees with EPA’s finding in a 2005 study that “the regulatory 

infrastructure is generally in place at the state level to ensure adequate management of these 

wastes.” 

ECOS would draw to EPA’s attention the separate comment letter being submitted by its 

sister association, the Association of State and Territorial Solid Waste Management 

Officials, which contains key information collected from the state environmental agencies 

through an extensive survey effort. ECOS also wishes to recognize the individual comments 

on CCR being submitted by many of its member agencies. 

ECOS asks that EPA consider carefully the potential regulatory implications and state fiscal 

impacts of its rule on CCR. 
ECOS and state environmental agencies have discussed with the EPA Office of Policy a number of 

categories of state implementation costs as a result of implementing new rules. For each new EPA rule, 

states may incur slightly different implementation costs. Cost categories may differ from state to state 

depending on legislative and regulated community differences. States ask that EPA consider as 

appropriate state costs for a wide range of implementation start-up and recurring activities in its 

implementation cost estimation for this rule, as well as for other rules, using the attached checklist (see 

Appendix 2). ECOS requests that EPA consider this full range of implementation cost items in its 

estimations for this rule before the final rule takes effect. ECOS also requests that EPA seek to secure 

federal funding for the states to cover the customary portion of the costs associated with the state 

implementation of this federal rule and consider the availability of funding support in its planning for new 

rule adoption schedules and other implementation activities following new rule issuance. 

Start-up and recurring implementation costs to the states as a result of this rule are detailed in the 

attachment to this letter and may include, for example: obtaining additional delegated authority; attending 

EPA training; developing a system for monitoring affected entities; purchasing new equipment to enforce 

the new regulation; providing compliance assistance; conducting ongoing public outreach and education 

programs (to the regulated communities) on how to comply with the state agency’s implementation of the 

rule; collecting and reviewing data from monitoring, recording, and storing data; and conducting 

enforcement inspections and follow-up actions. 

We seek to ensure here that all pertinent costs are included in any estimate the agency produces. Failure 

to include an accurate assessment of the implementation costs may result in a rule that is not implemented 

properly or in a timely manner, which may adversely affect human health. 

ECOS requests that EPA concurrently publish implementation guidance for this rule to states at the time 

of new rule issuance. Timely issuance of implementation guidance would facilitate state adoption of the 

new rule as well as increase state and EPA staff resource efficiency in completing activities related to new 

rule adoption. 

We appreciate the opportunity to offer these comments. 

 Sincerely, 

 

 R. Steven Brown 

 Executive Director 

Attachments 
Appendix 1 

Resolution Number 08-14 

Approved September 22, 2008 

Branson, Missouri 

Revised March 23, 2010 

Sausalito, California 

As certified by 

R. Steven Brown 

Executive Director

THE REGULATION OF COAL COMBUSTION PRODUCTS 

WHEREAS, The 1980 Bevill Amendment to the Resource Conservation and Recovery Act 

(RCRA) requires the U.S. Environmental Protection Agency (U.S. EPA) to "conduct a detailed 

and comprehensive study and submit a report" to U.S. Congress on the "adverse effects on 

human health and the environment, if any, of the disposal and utilization" of fly ash, bottom ash, 

slag, flue gas emission control wastes, and other byproducts from the combustion of coal and 

other fossil fuels and “to consider actions of state and other federal agencies with a view to 

avoiding duplication of effort;” and 

WHEREAS, U.S. EPA conducted the comprehensive study required by the Bevill Amendment and 

reported its findings to U.S. Congress on March 8, 1988 and on March 31, 1999, and in both Reports that 

recommended that coal combustion wastes (CCW) not be regulated as hazardous waste under RCRA 

Subtitle C; and 

WHEREAS, on August 9, 1993, U.S. EPA published a regulatory determination that regulation of the 

four large volume coal combustion wastes (fly ash, bottom ash, boiler slag, and flue gas emission control 

waste) as hazardous waste under RCRA Subtitle C is "unwarranted;" and 

WHEREAS, on May 22, 2000, U.S. EPA published a final regulatory determination that fossil fuel 

combustion wastes, including coal combustion wastes, “do not warrant regulation [as hazardous waste] 

under Subtitle C of RCRA,” and that “the regulatory infrastructure is generally in place at the state level 

to ensure adequate management of these wastes;” and 

WHEREAS, U.S. EPA is under no statutory obligation to promulgate federal regulations applicable to 

CCW disposal following the regulatory determination that hazardous waste regulation of CCW disposal is 

not warranted, and throughout the entire Bevill regulatory process, CCW disposal has remained a state 

regulatory responsibility and the states have developed and implemented robust regulatory programs 

tailored to the wide-ranging circumstances of CCW management throughout the country; and 
WHEREAS, in 2005, U.S. EPA and the U.S. Department of Energy published a study of CCW disposal 

facilities constructed or expanded since 1994 and evolving state regulatory programs that found: state 

CCW regulatory requirements have become more stringent in recent years, the vast majority of new and 

expanded CCW disposal facilities have state-of-the-art environmental controls, and deviations from state 

regulatory requirements were being granted only on the basis of sound technical criteria; and 

WHEREAS, the states have demonstrated a continuing commitment to ensure proper management of 

CCWs and several states have announced proposals for revising and upgrading their state CCW 

regulatory programs. 

NOW, THEREFORE BE IT RESOLVED THAT THE ENVIRONMENTAL COUNCIL OF THE 

STATES: 

Agrees with U.S. EPA’s repeated assessments in 1988, 1993, 1999, 2000, and 2005 that CCW disposal 

does not warrant regulation as hazardous wastes under RCRA Subtitle C; 

Agrees with U.S. EPA’s finding in the 2005 study previously cited that “the regulatory infrastructure is 

generally in place at the state level to ensure adequate management of these wastes” and believes that 

states should continue to be the principal regulatory authority for regulating CCW as they are best suited 

to develop and implement CCW regulatory programs tailored to specific climate and geological 

conditions designed to protect human health and the environment; 

Supports safe, beneficial reuse of CCW, including for geotechnical and civil engineering purposes; 

Believes that the adoption and implementation of a federal CCW regulatory program would create an 

additional level of oversight that is not warranted, duplicate existing state regulatory programs, and 

require additional resources to revise or amend existing state programs to conform to new federal 

regulatory programs and to seek U.S. EPA program approval; 

Believes that if U.S. EPA promulgates a federal regulatory program for state CCW waste management 

programs, the regulations must be developed under RCRA Subtitle D rather than RCRA Subtitle C; 

Believes that designating CCW a hazardous waste under RCRA Subtitle C could create stigma and 

liability concerns that could impact the beneficial use of CCW; and 

Therefore calls upon U.S. EPA to conclude that additional federal CCW regulations would be duplicative 

of most state programs, are unnecessary, and should not be adopted, but if adopted must be developed 

under RCRA Subtitle D rather than RCRA Subtitle C, and in addition, urges U.S. EPA to make a timely 

decision, and calls upon U.S. EPA to begin a collaborative dialogue with the states to develop and 

promote a national framework for beneficial use of CCW including use principles and guidelines, and to 

accelerate the development of markets for this material. 
Appendix 2 

Excerpt from "White Paper Recommendations for Enhancing EPA’s State Administrative Cost Analyses, 

WORKING DRAFT, August 20, 2009" 

Table 3: Revised State Administrative Activity Cost Framework 

Start-Up Activity Categories Specific Activities 

1. Tracking EPA’s Rulemaking 

Progress 

Review the Federal Register notices and/or other documents in order to decide 

whether to apply for delegated authority. 

Attend EPA-sponsored meetings/conferences on the rulemaking 

Attend other non-EPA meetings/conferences on the rulemaking 

Provide EPA directly with comments on the proposed rule. 

Provide EPA with comments on the proposed rule through a third party (e.g., 

ECOS). 

Conducted other start-up activities associated with tracking EPA’s rulemaking 

process. 

2. Obtaining Additional Delegated 

Authority 

Work with EPA to obtain delegated authority 

Amend state law to incorporate the requirements of the new regulation. 

Issue new regulations in accordance with the requirements of state law1

Incur litigation costs associated with the change in state laws. 

Conduct other start-up activities associated with obtaining additional delegated 

authority or the decision whether or not to obtain that authority. 

3. Designing Implementation Plan 

Design alternative standards to those in the federal regulation 

Perform activities related to obtaining EPA approval for the state implementation 

plan 

Meet with stakeholders and respond to concerns 

Conduct other start-up activities associated with designing implementation plans 

4. General Start-Up Activities 

Develop internal guidance and procedures for implementing the new regulation 

Hire additional staff because of this rule 

Attend EPA training or other non-EPA sponsored training for implementing the new 

regulations 

Conduct internal training 

Conduct other start-up activities 

5. Compliance Assistance 

Conduct outreach programs for affected entities 

Conduct public outreach and education programs to create awareness 

Develop training programs to help affected entities comply with the new regulation 

Conduct other start-up activities associated with compliance assistance 

6. Permit Administration 

Develop additional infrastructure for permit administration because of this rule 

Develop specific permit requirements 

Conduct other start-up activities associated with permit administration 

7. Monitoring 

Develop a system for monitoring affected entities 

Purchase new equipment for monitoring purposes 

Develop new infrastructure for carrying out monitoring 

Conduct other start-up activities associated with monitoring 

8. Inspection and Enforcement 

Establish new procedures for enforcing the new regulation 

Purchase new equipment for enforcing the new regulation 

Conduct other start-up activities associated with enforcement 

Recurring Activity Categories Specific Activities 

9. Compliance Assistance 

Conduct ongoing training (in addition to the initial start-up period) 

Respond regularly to letters, phone calls, emails or other inquiries in order to assist 

affected entities; respond to inquiries by the media and the public 

Conduct ongoing public outreach and education programs to create awareness 

Conducted other recurring activities associated with compliance assistance 

10. Permit Administration 

Conduct regular reviews of submitted documents and supporting materials 

Verify data sources on a regular basis 

Consult with facilities regularly about permitting process 

Issue notifications to affected entities about permits 

Provide opportunities for the public and/or stakeholders to comment on ongoing 

permitting processes 

Issue/review permits to affected entities 

Conduct other recurring activities associated with permit administration 
Table 3: Revised State Administrative Activity Cost Framework 

11. Monitoring 

Collect data from monitoring on a continuous basis 

Review collected data on a regular basis 

Record and store monitoring data 

Report monitoring data 

Provide notifications of monitoring requirements and schedule 

Conducted other recurring activities associated with monitoring. 

12. Inspection and Enforcement 

Conduct and review regular inspections for regulatory enforcement purposes 

If a national inspection priority, conduct additional inspections as per state-region 

negotiated workplan 

Respond to citizen complaints 

Issue warnings and/or citations for violations 

Take legal action to enforce regulation 

Collect fines for violations 

Provide notifications of enforcement actions 

Keep records for enforcement actions 

Report enforcement activities to EPA 

Conducted other recurring activities associated with enforcement 

Incur additional recurring costs associated with enforcement activities 

13. Other Any other types of recurring activities not categorized above 1

While some states may simply incorporate federal rules by reference, others must undergo an in-depth rulemaking process involving 

public notice, impact statements, rulemaking hearings, recordkeeping and various other steps