# Comment Summary and Response Document

Hazardous and Solid Waste Management System;
Identification and Listing of Special Wastes; Disposal of
Coal Combustion Residuals from Electric Utilities;

Proposed Rule

(Docket s # EPA

- HQ

- RCRA

- 2009

- 0640

, EPA

- HQ

RCRA

- 2011

- 0392, and EPA

- HQ

- RCRA

- 2012

- 0028 )

Volume 8: Operating Criteria: Air Criteria

December 2014Background

The U.S. Environmental Protection Agency (Agency or EPA) proposed regulations for
the management of coal combustion residuals (CCRs) which was published in the Federal
Register on June 21, 2010. This proposal, under the Resource Conservation and Recovery Act
(RCRA), addressed the risks from disposal of CCRs generated from the combustion of coal at

electric utilities an d from independent power producers. Two regulatory options were proposed.
Under the first option, EPA proposed to reverse its August 1993 Bevill Regulatory and May
2000 Bevill Regulatory Determinations regarding CCR and to list CCRs as special wastes
subj ect to hazardous waste regulation s under subtitle C of RCRA when destined for disposal in
landfill or surface impoundments. Under the second option, EPA proposed to leave the Bevill
determination in place and regulate the disposal of CCR as non

- hazardous solid waste under
subtitle D of RCRA by issuing minimum national criteria. Both options would require
composite liners, groundwater monitoring, structural stability requirements, corrective action,
and closure/post closure care.

EPA also solicited comme nts on all aspects of both proposed options. The Agency
received over 450,000 comments on the proposed rule. The majority of the comments focused on which regulatory path the Agency should pursue for regulating CCRs, i.e., RCRA’s subtitle C or

subtitle D. EPA also conducted eight public hearings and took additional comments on the
proposed rule. EPA has established three dockets for this regulatory action under Docket ID No.

EPA

- HQ

- RCRA

- 2009

- 0640, Docket ID No. EPA

- HQ

- RCRA

- 2011

- 0392, and Docket ID No.

EP A

- HQ

- RCRA

- 2012

- 0028. All documents in these dockets are available at
http://www.regulations.gov . Although listed in the index, some information is not publicly
available, e.g., Confidential Business Information (CBI) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy form. Publicly available docket

materials are avail able either electronically in http://www.regulations.gov or in hard copy at the
OSWER Docket, EPA/DC, WJC West Building, Room 3334, 1301 Constitution Ave., NW,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202) 566

– 1744, and the telephone number for the OSW ER Docket is 202

– 566

– 0276.After reviewing all of the comments and additional data received, EPA is promulgating a

final rule to regulate the disposal of CCR as solid waste under s ubtitle D of RCRA. This rule

addresses the risks from structural failures of CCR surface impoundments, groundwater
contamination from the improper management of CCR in landfills and surface impoundments
and fugitive dust emissions.
The Agency has developed seventeen volumes of summarizing comments on major
topics covered in t he proposed rule (see table below) and the Agency’s responses to those
comments, as well as a separate volume summarizing comments provided during public
hearings. Since EPA is finalizing a rule under subtitle D of RCRA, only those comments

submitted on t he proposed subtitle C rule that are also applicable to the final rule are addressed
in the comment and response documents.

Volume Topic

1 General Comments

2 RCRA Subtitle D Regulatory Approach (Legal issues/Self

- implementing
Design/Reliance on Certifications by an Independent Professional
Engineer/Recordkeeping, State Submissions, Posting to the
Internet/Finance Assurance/Alternative Approaches)

3 Scope and Purpose/Effective Dates/Applicability/Off

- site
Disposal/Definitions

4 Location Restrictions

5 Design Criteria: Liners and Leachate Collection Systems

6 Design Criteria: Structural Integrity

7 Operating Criteria: Endangered species/Surface water/Ins pections/Run

- on

Run

- off

8 Operating Criteria: Air Criteria

9 Groundwater and Corrective Action

10 Closure and Post

- Closure Care

11 Additional Comments including Overfills/ Harmonization with ELG.Volume Topic

12 Beneficial Use

13 Risk Assessment

14 State Authorities, Programs and Regulations

15 Compendium of Damage Cases

16 Regulatory Impact Analysis (RIA)

17 EPA’s Assessment Program

This volume summarizes comments received on the proposed operating criteria: air

criteria.

_________________ _____________________________________________________________


### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 6 

### Organization 1 

### : Arizona Department of Environmental Quality (ADEQ) 

### Commenter 1 : Benjamin H. Grumbles Commenter Type: State Government Classification: Substantive



### Comment Excerpt Text: Furthermore, all coal

- fired power plants in Arizona have Title V permits issued by ADEQ under the Clean Air Act that include fugitive dust emission control requirements.

Response: EPA received several comments arguing that the proposed numeric particulates standard was incompatible with the air quality requirements established under the States’ Implementation Plans (SIPs) or with provisions set up by the States in their Title V Clean Air Permits to the power producers. In light of these comments, EPA reevaluated the existing CAA standards applicable to these units; 40 CFR § 70.2 identifies fossil

- fuel

- fired steam electric plants of more than 250 million BTU/hour heat input as potential sources of fugitive dust (PM source s) that must be covered by state permitting, and 40 CFR part § 70.3 stipulates that “Fugitive emissions from a part 70 source shall be included in the permit application and the part 70 permit in the same manner as stack emissions, regardless of whether th e source category is included in the list of sources contained in the definition of major source.” Based on these applicable CAA requirements, the Agency agrees that the adoption of a PM standard under the final rule would entail a potential for duplicati on or inconsistency with applicable state

- established standards in SIP permits.

EPA is introducing instead a requirement for the implementation of fugitive dust control measures (Best Management Practices, BMPs). The BMPs adopted by a power plant will be captured in a “CCR fugitive dust control plan” (herein referred to as “plan”)

. The plan must be certified by a qualified professional engineer and placed in the operating record and on the owner or operators publicly accessible internet site. The plan req uires owners or operators to elaborateon the types of activities applicable and appropriate for the conditions at the facility that will be

employed to minimize CCR from becoming airborne at the facility. The Agency also requires that the CCR fugitive dus t control plan include a description of the procedures the owner or operator will follow to periodically assess the effectiveness of the control plan. The owner or operator may amend the written CCR fugitive dust control plan at any time. However, the own er or operator must amend the written plan whenever there is a change in conditions that would substantially affect the written plan in effect, such as the construction and operation of a new CCR unit. Finally, EPA requires owners and operators of all CCR units to develop and implement formal procedures to log citizen complaints involving CCR fugitive dust events, and to address these complaints.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06865

- 23 

### Organization 1 

### : Constellation Energy 

### Commenter 1 : Charlene Zaruba on behalf of Paul Allen Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text: Comments Specific to the Proposed Regulations:

257.80 Air Criteria: The fugitive dust limit should be defined as a value measured a t the property limits and stated as a weighted average not a maximum.

Response: EPA received several comments arguing that the proposed numeric particulates standard was incompatible with the air quality requirements established under the States’ Implement ation Plans (SIPs) or with provisions set up by the States in their Title V Clean Air Permits to the power producers. EPA reevaluated the existing CAA standards applicable to these units, and decided instead to introduce a requirement for the implementatio n of fugitive dust control measures (Best Management Practices, BMPs). For the specific requirements associated with the implementation of these measures, the commenter is referred to the Air Quality section in Unit VI of the preamble to this rule.



### Comme nt Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 00358

- 5 

### Organization 1 

### : Citizens for Clean Power (CCP) 

### Commenter 1 : John Austin Commenter Type: Advocacy Group Classification: Substantive



### Comment Excerpt Text: The proposed subtitle C approach would require that surface imp oundments and landfills be managed in a manner that controls fugitive dust consistent with any applicable requirements developed under a State Implementation Plan (SIP) or issued by EPA under section 110 of the Clean Air Act (CAA). Specifically, EPA is pro posing to adopt as a standard the 35 μg/m3 level established as the level of the 24

- hour NAAQS for fine particulate matter (PM

- 2.5). In addition, CCR facilities would be required to control fugitive dust by either covering or otherwisemanaging CCRs to con trol wind dispersal of dust, emplacement as wet conditioned CCRs to

control wind dispersal, when stored in piles, or storage in tanks or buildings.

CCP strongly supports mandatory fugitive dust controls. However, the proposal fails to establish emission l imitations that address the hazards associated specifically with arsenic mercury, and other metals in the particulates. Given documented cancer clusters and other clusters of adverse health impacts down wind of coal powered plants, numerical limitation of the arsenic emissions is sought such that facility emissions do not raise lung cancer risks in the surrounding area.

Minnesota state law sets an ambient air limit standard of 0.002 micrograms per cubic meter for arsenic. There is reason to believe that CC R wastes may violate the Chronic Health Risk Value for arsenic and arsenic compounds, which ought to be measured at the property line. With growing recognition of arsenic’s extreme carcinogenicity, lower and lower fugitive emissions can be tolerated.

264. 1308 and 265.1308 requirements do not detail the number and placement of facility air monitors. A minimum of 4 sites should be monitored surrounding each site.

Existing State SIPs have proven to be ineffective in monitoring plant emissions. While the IRPP is Delaware’s largest emission source and surrounded by a known cancer cluster, no state air monitoring of particulates is conducted in the downwind communities or those adjacent to the active ash disposal mound. Specific air network monitoring requiremen ts are needed for the disposal sites.

Response: Many commenters argued that the proposed numeric particulates standard ( 35 μg/m3 level established as the level of the 24

- hour NAAQS for fine particulate matter (PM

- 2.5) was incompatible with the air quality requirements established under the States’ Implementation Plans (SIPs) or with provisions set up by the States in their Title V Clean Air Permits to the power producers. In addition, the commenters argued that the proposed standard lacked technical detail s to facilitate effective implementation, and that implementation of the standard required specialized equipment and advanced training to carry out a judicious reading and interpretation of opacity, a proxy measure for the level of fugitive dust emissions. In light of these comments, EPA reevaluated the existing CAA standards applicable to these units; 40 CFR § 70.2 identifies fossil

- fuel

- fired steam electric plants of more than 250 million BTU/hour heat input as potential sources of fugitive dust (PM sourc es) that must be covered by state permitting, and 40 CFR part § 70.3 stipulates that “Fugitive emissions from a part 70 source shall be included in the permit application and the part 70 permit in the same manner as stack emissions, regardless of whether t he source category is included in the list of sources contained in the definition of major source.” Based on these applicable CAA requirements, the Agency agrees that the adoption of a PM standard under the final rule would entail a potential for duplicati on or inconsistency with applicable state

- established standards in SIP permits.

EPA also acknowledges the challenges involved in measuring the proposed compliance standard. Because fugitive dust is emitted from non

- point sources, it cannot be easily mea sured by conventional methods. Usually, regulations developed by the states to control fugitive dust stipulate that no person or source shall cause or allow, from any activity, any emissions of fugitive particulate matter that are visible to an observer wh o looks horizontally along thesource’s property line. A quantitative measurement of fugitive dust levels (EPA’s Reference

Method 9) would require measuring opacity, which, as the commenters noted, necessitates specialized technical training, trainee certi fication, and judicious application of instrumentation. Therefore, rather than requiring a potentially redundant and challenging

- to

- implement quantitative standard, EPA is substituting a performance standard for fugitive dust control. This standard requir es owners or operators of a CCR unit to adopt measures that will effectively minimize CCR from becoming airborne at the facility, including CCR fugitive dust originating from CCR units, CCR piles, roads, and other CCR management activities. The Agency considers this standard to be consistent with the intent of the proposed rule, with the added advantage of allowing facilities the flexibility to determine the appropriate measures to achieving regulatory compliance at their individual site. This standard and the accompanying regulatory requirements supporting its implementation, will achieve the statutory obligation of “ no reasonable adverse effects on human health and the environment .”



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 04041

- 11 

### Organization 1 

### : Env ironment Maryland Research & Policy Center 

### Commenter 1 : Brad Heavner Commenter Type: Advocacy Group Classification: Substantive



### Comment Excerpt Text: Finally, controls need to be in place, through an enforceable permit, to prevent fugitive emissions, for w hich evidence of the need for controls is documented. For example, in an analysis of the impacts of the Tennessee coal ash spill, the high probability of atmospheric resuspension of fine fly ash particulates is identified. (“Survey of the Potential Environ mental and Health Impacts in the Immediate Aftermath of the Coal Ash Spill in Kingston, Tennessee,” 43 Environ. Sci. Technol. pp. 6326

- 6333 (2009)). These fine particulates are enriched in toxic metals and radioactivity, and could have a severe impact on l ocal populations, particularly children and other vulnerable sub

- groups, as fine particulates can be inhaled deep into the lungs. In fact, the smaller the coal ash particle, the more concentrated with toxic metals they are. Put differently, toxic metal con tent is even higher for those coal ash particles that represent the greatest inhalation risk.

In December, 2007, Environmental Maryland also documented the impacts of resuspended CCRs on a Maryland residential community adjacent to the Gambrills mine rec lamation site in a study that showed that CCR fugitive dust, emanating from the disposal site, was present in 12 out of 12 collected samples throughout the community. Fugitive dust control requirements should include a mandated methodology to prevent CCR e missions from any site, including but not limited to thick site caps and/or earthen covers, monitoring and compliance with air quality regulations at all stages of the handling, transport and placement of the CCRs.

Response: E vidence concerning the risk and nuisance caused by CCR fugitive dust that was already available to EPA at the trime of the proposal was since bolstered. The new lines of evidence comprise stakeholder testimonies presented during eight 2010 CCR proposed rule’s pub lic hearings and documented reports on fugitive dust issues provided by citizen groups. Thestakeholders called for federal oversight to address those instances where complaints were

seemingly ignored by state regulators and/or where state administrative enforcement measures failed to compel the utilities to effectively amend their dust emission control management practices. The Agency followed up on the complaints with state agencies and compiled a preliminary database on documented and alleged fugitive d ust damage cases. One of the documented cases is that associated with the Gambrills sand and gravel pit reclamation activities.

The EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. However, given a vailable statutory authorities, this rule is self

implementing with no direct federal oversight nor a mandate for state

- issued permits. EPA seeks to enhance the protectiveness of the final rule by requiring certified demonstrations by a registered professi onal engineer to provide verification that the regulatory requirements are being adhered to. In addition, the rule provides for state and public notification of the certifications, as well as requires posting of certain information (e.g., the annual fugiti ve dust control plan and its amendments) on a website maintained by the facility and in the operating record. Indeed, the public disclosure of information is an increasingly common and important regulatory tool, as evidenced by the 2010 guidance issued by the Office of Management and Budget (OMB), with principles to assist agencies in using information disclosure to achieve regulatory objectives.

In this rule, EPA is introducing a performance standard for fugitive dust control. This standard requires owner s or operators of a CCR unit to adopt measures that will effectively minimize CCR from becoming airborne at the facility , including CCR fugitive dust originating from CCR units, CCR piles, roads, and other CCR management activities. These Best Management P ractices shall be documented in an annual CCR fugitive dust control plan. The plan must be certified by a qualified professional engineer and placed in the operating record and on the owner or operators publicly accessible internet site. The plan requires owners or operators to elaborate on the types of activities applicable and appropriate for the conditions at the facility that will be employed to minimize CCR from becoming airborne at the facility.

The Agency also requires that the CCR fugitive dust control plan include a description of the procedures the owner or operator will follow to periodically assess the effectiveness of the control plan. Consistent with other plans required in this rule, the owner or operator may amend the written CCR fugitiv e dust control plan at any time. However, the owner or operator must amend the written plan whenever there is a change in conditions that would substantially affect the written plan in effect, such as the construction and operation of a new CCR unit. Fina lly, EPA requires owners and operators of all CCR units to develop and implement formal procedures to log citizen complaints involving CCR fugitive dust events, and to address these complaints. All t hese requirements should significantly reduce the particu late inhalation risk to communities adjacent to sites of CCR management.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 04041

- 12 

### Organization 1 

### : Environment Maryland Research & Policy Center 

### Commenter 1 : Brad Heavner Commenter Type: Advocacy Group Classification: Substantive

### Comment Excerpt Text:

For the above reasons, Environment Maryland supports a regulatory regime that adheres to the following: (i) all use, handling , transport and placement of CCRs, other than in a process that binds, i.e., encapsulates, the CCRs with another product (e.g., cement, concrete, asphalt, gypsum), should be regulated as a special waste under Subtitle C of RCRA and in a manner that fully prevents any contamination of ground and surface waters; (ii) uses that are likely to lead to

w ater contamination or toxic releases should be prohibited (e.g., placement of significant quantities of CCRs on the ground without liners and leachate collection systems consistent with hazardous metals management); and (iii) air pollution impacts analysis must be included in any regulatory regime to prevent exposure to high levels of contaminated dust, including fine particulate matter, a known contributor to respiratory and cardio

- vascular illnesses.

Response: In this rule, EPA is introducing a performa nce standard for fugitive dust control. This standard requires owners or operators of a CCR unit to adopt measures that will effectively minimize CCR from becoming airborne at the facility , including CCR fugitive dust originating from CCR units, CCR piles, roads, and other CCR management activities. These Best Management Practices shall be documented in an annual CCR fugitive dust control plan. The plan must be certified by a qualified professional engineer and placed in the operating record and on the owne r or operators publicly accessible internet site. The plan requires owners or operators to elaborate on the types of activities applicable and appropriate for the conditions at the facility that will be employed to minimize CCR from becoming airborne at t he facility.

EPA updated the screening analysis of fugitive dust. EPA agrees that there are potential risks posed by fugitive emissions from sources beyond wind and revised the analysis to consider emissions from a range of activities, such as vehicular activity, unloa ding operations and spreading/compacting operations. Model inputs were selected to be representative of current landfills, environmental settings (e.g., meteorological conditions) and common dust management practices. Estimated air concentrations were used to screen acute and chronic health risks from inhalation, as well as the potential to exceed NAAQS standards. Furthermore, EPA considered exposures that may result from the offsite deposition on and accumulation in downgradient media. Further discussion o f this screening analysis is presented in Section 3 and Appendix F of the revised risk assessment in the docket of this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06068

- 11 

### Organization 1 

### : Utah Physicians for a Healthy Environment 

### Commenter 1 : John Veranth Commenter Type: Advocacy Group Classification: Substantive



### Comment Excerpt Text: Fugitive air emissions of CCR’s are addressed on FR page 35175. The EPA under the Subtitle C proposal is considering using a 35 ug/m3 level based on the NAAQS. Again, I emph asize that research has shown that different components of ambient PM differ in potency. Relying on the generic NAAQS risk assumptions may not be appropriate for fly ash. Although not part of this rulemaking the EPA needs to ultimately conduct for CCRs the type of detailed residual risk analysis mandated by the HAPs rules for air toxics.Response: EPA updated the screening analysis of fugitive dust. EPA agrees that there are

potential risks posed by fugitive emissions from sources beyond wind and revised th e analysis to consider emissions from a range of activities, such as vehicular activity, unloading operations and spreading/compacting operations. Model inputs were selected to be representative of current landfills, environmental settings (e.g., meteorolo gical conditions) and common dust management practices. Estimated air concentrations were used to screen acute and chronic health risks from inhalation, as well as the potential to exceed NAAQS standards. Furthermore, EPA considered exposures that may resu lt from the offsite deposition on and accumulation in downgradient media. Further discussion of this screening analysis is presented in Section 3 and Appendix F of the revised risk assessment in the docket of this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0 640

- 06203

- 4 

### Organization 1 

### : Arizona Public Service Company (APS) 

### Commenter 1 : Scott Davis Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text: B. Potential for Continual Non

- Compliance

The Subtitle C option would impo se serious and often intractable compliance problems for electric utilities given the physical nature of CCRs and the volume of CCRs generated by the industry in the course of the electric utility operations (e.g., APS generates approximately 2.6 million t ons of ash each year at its two coal

- fired power plants). One of the fundamental premises EPA cited for deciding not to regulate CCRs in its final Regulatory Determination for the four large

- volume CCRs was the recognition that the inflexible, one

- size

- fit s

- all nature of the Subtitle C hazardous waste program simply was not appropriate for the diverse nature of CCR disposal facilities.

Complying with RCRA Subtitle C hazardous waste regulations at all points of operation of a coal fired power plant would be virtually impossible to achieve. Under existing hazardous waste regulations compliance begins at the point of generation of a waste. Depending on the configuration and operations of a coal fired power plant, the point of generation of CCRs could be as ear ly as the boiler where coal is combusted and ash is generated. Effectively managing CCRs in compliance with all RCRA requirements from that point downstream through all of the handling processes required to accumulate and transport the CCRs to the point of disposal would require an existing coal

- fired power plant to be converted into a zero discharge facility, which is an absurd and totally unreasonable expectation. Short of this, however, continual compliance with RCRA Subtitle C requirements imposed on CC Rs would not be possible.

As a listed hazardous waste, CCRs would be subject to the mixture and derived from rules which apply to materials which come in contact with a listed waste. Since RCRA Subtitle C contains no de minimis exemption for listed wastes ; any material, no matter how small or inconsequential, derived from a listed hazardous waste remains subject to full Subtitle C regulation. 40 C.F.R. § 261.3(c)(2). As a result, virtually all material and equipment which comes in contact with CCRswould b e required to be disposed of as a hazardous waste or decontaminated on a regular basis.

This would apply to equipment such as conveyor belts, bins, vehicles, etc., all of which would be subject to full hazardous waste regulation under the proposed Subtitle C rule. All temporary accumulation and storage points of CCRs prior to reaching the final disposal site would also require retrofitting or replacement to meet the storage requirements found in the hazardous waste regulations, including all requirements re lating to tank systems, surface impoundments and waste piles. See generally 40 C.F.R. Parts 264 and 265.

Due to the sheer volume and the physical composition of CCRs, de minimis volumes of CCRs are inevitably released during normal operations and subseque nt CCR handling operations (e.g., fugitive and de minimis emissions from ash conveyor equipment, loading equipment or during the transport/handling of CCRs for beneficial use). This holds true despite the utilization of state

of

- the art CCR handling, conve yance, and storage equipment designed to limit fugitive emissions. Even a facility's Clean Air Act Title V permit recognizes that small amounts of fugitive dust are emitted from these activities and expressly set limits for these emissions in the permit. I n other words, de minimis releases of these materials are an expected part of coal

- fired generation and virtually impossible to prevent.

Nonetheless, if CCRs are regulated as a listed "special waste" subject to full hazardous waste regulation, even these de minimis releases would constitute improper hazardous waste disposal, subjecting APS' coal

- fired power plants to liability for what would potentially be a continual state of RCRA non

- compliance because, as noted previously RCRA Subtitle C contains no de minimis exemption for listed wastes and any material, no matter how small or inconsequential, derived from a listed hazardous waste remains subject to full Subtitle C regulation.

For example, at APS' Four Corners Power Plant two of the facilities five boi lers are super critical, positive pressure units, as opposed to negative pressure units. This is significant because in a positive pressure system small holes, cracks, openings, etc., in the duct work downstream from the boilers allow de minimis releases o f flue gas containing ash to occur despite having a thorough inspection and maintenance program in

- place to prevent such fugitive emissions.

Clearly, the prospect of Subtitle C liability for any de minimis release or spill of CCRs during handling operatio ns prior to their placement into a disposal unit constituting improper hazardous waste disposal is a significant compliance concern, even though there is very little risk associated with such de minimis releases. APS strives for full compliance with all ap plicable environmental laws, regulations and permit conditions, but the Subtitle C option would make this objective impossible to achieve. Moreover, the fact that such inevitable releases would constitute improper disposal would expose APS' facilities to c ontinual and harassing citizen suits based solely on these de minimis and inconsequential releases.

In response to a letter from members of the House Energy and Commerce Committee, [FN 2: Letter from Reps. Upton, Boucher, Space and Rodgers to EPA Administ er Lisa Jackson dated April 27, 2010 attached to comments.] EPA confirmed its position that even such de minimis releases would be subject to full hazardous waste regulation, and that such releases would be addressed through the Subtitle C hazardous waste regulations that "address responses to unplanned releases, such as accidental spills or leaks." In effect, under the Subtitle C Option,EPA would be promulgating a rule with which utilities would not be able to comply.

Response: The commenter’s concerns a bout de

- minimis CCR fugitive dust are laid to rest considering that this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06252

- 8 

### Organization 1 

### : Minnkota Power Cooperative, Inc. (Minnkota) 

### Commenter 1 : John T. Graves Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text: It is important to note that, due to the sheer volume and physical composition of CCRs, de minimis v olumes of CCRs are inevitably released during normal power generation and subsequent CCR handling operations (e.g., fugitive and de minimis emissions from ash conveyor equipment or loading equipment; during the transport/handling of CCRs for beneficial use ). These de minimis releases are virtually impossible to prevent, even with the most sophisticated CCR handling, conveyance, and storage equipment. It would be unjustified and unreasonable to subject electric utility coal

- fired power plants to liability fo r what would essentially be a perpetual state of RCRA non

- compliance, but this is exactly what would happen under the current proposal, which contains no de minimis exemption for listed wastes and would therefore render even the de minimis releases describ ed above improper hazardous waste disposal.

Response: The commenter’s concerns about de

- minimis CCR fugitive dust are laid to rest considering that this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s p reamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06254

- 10 

### Organization 1 

### : Sunflower Electric Power Corporation 

### Commenter 1 : Paul E. Reynolds Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text: It is important to note that, due to the sheer volume and physical composition of CCRs, de minimis volumes of CCRs are inevitably released during normal power generation and subsequent CCR handling operations (e.g., fugitive and de minimis emissions from ash conveyor equipment or loading equipment; during the transport/handling of CCRs for beneficial use). These de minimis releases are virtually impossible to prevent, even with the most sophisticated CCR handling, conveyance, and storage equipment. It would be unjustified and unre asonable to subject electric utility coal

- fired power plants to liability for what would essentially be a perpetual state of RCRA non

- compliance, but this is exactly what would happen under the current proposal, which contains no de minimis exemption for l isted wastes and would thereforerender even the de minimis releases described above improper hazardous waste disposal.

Response: The commenter’s concerns about de

- minimis CCR fugitive dust are laid to rest considering that this rule will regulate CCRs u nder RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06275

- 32 

### Organization 1 

### : Lansing Board of Water and Light (BWL) and Michigan State University (MSU) 

### Commenter 1 : Jeffrey L. Woolstrum Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text: Power Plants Have Not Been Designed To Manage CCRs Consistent With Hazardous Waste Generator Regulations.

Coal

- fired power plants across the nation, including LBW L’s and MSU’s plants, have been designed and constructed to manage fugitive in

- plant CCRs accumulations using routine housekeeping and maintenance. These plants have not been designed to prevent de minimis accumulations of CCRs during normal operations. Su ch minor accumulations can result from a variety of sources. For example, boilers have multiple openings for inspection, maintenance, CCR removal, and other purposes. The seals on these openings are not designed to be air

- tight and, due to differential pre ssures inside the boilers during normal operations, these openings were not designed to contain all CCRs within the unit, or to prevent insignificant in

- plant accumulations of CCRs. Rather, the boilers’ design anticipated that these minor CCR accumulations would be addressed through routine housekeeping. As another example, the pneumatic CCR conveyance systems are susceptible to internal erosion caused by the abrasive properties of the fast

- moving CCRs. This erosion is anticipated and can result in small am ounts of CCRs to accumulate in the plant. Power plant operators address these minor in

- plant accumulations using routine housekeeping and maintenance practices developed in accordance with industry standards. The development of power plants and these routi ne operational practices never anticipated that, one day, CCRs might become a listed hazardous waste.

Preventing these de minimis in

- plant accumulations, as well as addressing potential historic accumulations on inaccessible horizontal surfaces (e.g., bea ms, pipes and duct work), will add significant construction and operating costs to all power plants without any associated benefit. RCRA’s hazardous waste regulations require generators to containerize all hazardous waste and prohibit any spill, even minor inplant accumulations that have historically been addressed through routine housekeeping and that present no real risk. Although EPA stated in the preamble to the 37 75 Fed. Reg. at 35,133. Further, proposed rule 40 C.F.R. § 261.50(a) expressly states tha t the special waste code S001 is “subject to regulation under Parts 262 through 268,” which includes the standards applicable to generators under 40 C.F.R. Part 262.Response: The commenter’s concerns about de

- minimis CCR fugitive dust are laid to rest

con sidering that this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06299

- 7 

### Organization 1 

### : MidAmerican Energy Holdings Company (MidAmerican) 

### Commenter 1 : Ca thy S. Woollums Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text: 4. Release Reporting and “Improper Disposal”

– Given the sheer volume and physical composition of CCR, small, de minimis quantities of CCR are inevi tably released during power generation. Subsequent CCR handling operations, including fugitive emissions from ash conveyer equipment and/or loading equipment during the transport and handling of CCR for beneficial use applications are also likely to result in the release of small quantities of CCR. If CCR is regulated as a listed “special waste” subject to full Subtitle C hazardous waste regulation, even these de minimis releases may constitute a release of hazardous materials (potentially triggering agency notification requirements) and subject a facility to claims of improper hazardous waste disposal as well as remedial action requirements. The determination of the point of generation of “waste” could be anywhere CCR exit the generation process or process

- related equipment vessel, subjecting coal

- fueled power plants to liability for continual non

- compliance due to the fact that RCRA Subtitle C does not contain any “de minimis” exemptions for “listed wastes.” Any material derived from a listed hazardous wast e remains subject to full Subtitle C regulation. [FN 4: See 40 CFR Section 261.3(c)(2).] For all regulated electric utilities, the prospect of Subtitle C liability for continual non

- compliance is a significant concern. MidAmerican and its operating entitie s, similar to all utilities, take environmental compliance very seriously. Environmental compliance is an integral component of all of our daily work practices and operations. Any potential non

- compliance issues, especially non

- compliance that cannot be ef

fectively addressed and or mitigated, is a major concern for MidAmerican and other utilities. This consequence is also directly contrary to the Bevill Amendment’s directive that EPA avoid the imposition of Subtitle C regulations on CCR to the greatest exte nt possible so as to not impose undue regulatory burdens on utilities and discourage the use of coal. [FN 5: See 126 Congressional Record at 3361.]

Response: The commenter’s concerns about de

- minimis CCR fugitive dust are laid to rest considering that thi s rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 48 

### Organization 1 

### : Southern Company on behalf of itself and its four subsidiaries: Alabama Power Co mpany, Georgia Power Company, Gulf Power Company, and Mississippi Power Company 

### Commenter 1 : Chris M. HobsonCommenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: J. EPA Has Provided Insufficient Information and Analysis to Support Findings Regarding Fugitive Dust.

EPA solicited comment on the question of impacts associated with fugitive dust, particularly the potential health effects associated with small

- diamete r or “respirable” particulate matter. [Footnote 161: 75 Fed. Reg. 35128, 35171 (June 21, 2010). ] The modeling analysis provided by EPA is flawed and does not support the listing of CCBs under Subtitle C. Further, EPA has failed to consider the actual, ava ilable air monitoring data associated with the spill at TVA’s Kingston facility. EPA has failed to demonstrate that risks associated with fugitive dust support application of RCRA Subtitle C regulation. Southern Company supports the comments on fugitive du st issues provided at Part VI.E of the USWAG Comments and hereby incorporates that portion of the USWAG Comments as if reproduced fully herein.

Response: For responses to the issue of fugitive dust risk assessment modeling analysis, see Volume 13 of the Re sponse to Comments document. Concerning the failure to demonstrate that risks associated with fugitive dust supports application of RCRA Subtitle C regulation, this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the fina l rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06325

- 4 

### Organization 1 

### : Commonwealth of Pennsylvania House of Representatives 

### Commenter 1 : Jessica R. Guyer on behalf of Scott E. Hutchinson Commenter Type: State Elected Official Classification: Sub stantive



### Comment Excerpt Text: • EPA's waste management regulation governing coal combustion ash should not include performance criteria related to air impacts from fugitive dust emissions. Such airborne constituents are effectively regulated by the state s, in accordance with State Implementation Plans approved by EPA under the Clean Air Act. To the extent that EPA nonetheless includes fugitive dust standards in this waste management regulation, those performance criteria should require implementation of b est management practices, consistent with existing air quality regulations, and not require compliance with ambient air quality standards.

Response: EPA has essentially adopted the commenter’s suggested approach for regulating fugitive dust. For the rationale for this decision and implementation details, the commenter is referred to the response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 26.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06357

- 15 

### Organization 1 

### : Kansas City Power & Light Company 

### Commenter 1 : Paul M. LingCommenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Most significantly, due to the sheer volume and the physical composition of CCRs, de minimis volumes of CCBs are inevitably released during normal power generation and subsequent CCB handling operations (e.g., fugitive and de minimis emissions from ash conveyor equipment or loading equipment and during the transport/handling of CCBs for beneficial use). This holds true notwithstanding utilization of even the most sophisticated CCR handling, conveyance, and storage equipment; de minimis releases of these materials are virtually impossible to prevent. Nonetheless, if CCRs are regulated as a listed “special waste” subject to full hazardous waste regulati on, even these de minimis releases would constitute improper hazardous waste disposal, subjecting electric utility coal

- fired power plants to liability for what would likely be a perpetual state of RCRA non

- compliance. This is because RCRA Subtitle C conta ins no de minimis exemption for listed wastes; any material, no matter how small or inconsequential, derived from a listed hazardous waste remains subject to full Subtitle C regulation. See 40 C.F.R. § 261.3(c)(2).

Clearly, the prospect of Subtitle C liab ility for any de minimis release or spill of CCRs during handling operations prior to their placement into a disposal unit constituting improper hazardous waste disposal is a significant compliance concern, even though there is very little risk associated with such de minimis releases. Electric utilities strive for full compliance with all applicable environmental laws and regulations, but the Subtitle C option would make this objective virtually impossible to achieve. Moreover, the fact that such inevitabl e releases would constitute improper disposal would expose facilities to continual and potential citizen suits based solely on these de minimis and inconsequential releases. This illogical result, flowing from overly stringent and unnecessary regulation of precisely the type that Congress directed EPA to avoid when issuing any final CCR regulations under RCRA, would be both an unjustifiable burden on the regulated community and wasteful of agency and judicial resources. See 126 Cong. Rec. at 3361.

Response: The commenter’s concerns about de

- minimis CCR fugitive dust are laid to rest considering that this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06358

- 17 

### Organization 1 

### : Titan America LLC 

### Commenter 1 : James S. Willis Commenter Type: Beneficial User Classification: Substantive



### Comment Excerpt Text: 4. The EPA must be absolutely clear that the proposed limits for fugitive dust under either option applies on ly to the disposal facilities (impoundment or landfill) for disposed CCRs and that such standards are not applicable to storage of CCRs at any other facility or beneficial use.a. Under both options, the EPA proposes a fugitive dust standard of 35 mg/m3 f or CCR impoundments or landfills, and proposes control methods to manage wind dispersal of dust, including wet conditioning of piles, storage in tanks or buildings, and covered trucks for transporting. The EPA needs to be absolutely clear that these standa rds and control methods only apply to disposal facilities for CCRs and do not apply to any other facilities or beneficial use of CCRs.

b. The EPA must ensure that these fugitive dust standards cannot be construed to be the basis for fugitive dust enforcem ent at other facilities that may store or beneficially use CCRs such as cement plants and concrete manufacturers that are subject to other regulations on visible or fugitive dust emissions.

Response: In this rule EPA is deferring a decision on the Bevil e xemption. As long as the Bevil exemption still applies, the requirements for fugitive dust control included in this rule apply only CCR disposal. The regulation is clear that it does not apply to cement plants or concrete manufacturers that do not dispose of (or otherwise conduct solid waste management practices with) CCRs. The regulatory text at [257.50] specifies that “this subpart applies to owners and operators of landfills, including any lateral expansions of such units that dispose or otherwise conduc t solid waste management of CCR...” However, EPA is providing guidance to the practitioners of CCR applications in large scale engineering fill projects to ensure that fugitive dust control is in place in the course of executing such CCR beneficial use proje cts.

NOTE TO LAUREL: Considering that this response is incompatible with the 2 nd paragraph of the response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 04041

- 11 above ( and that response is extracted from the preamble ) , your help in reconciling these two responses would be appreciated here!!



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06422

- 17 

### Organization 1 

### : Dynegy Inc 

### Commenter 1 : Ben C. Trammell Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text : Subtitle C regulation would also raise problematic issues regarding site

- specific determinations of when CCRs become subject to regulation. Many operations at a power plant involved in the generation or handling of ash potentially may be subject to RCRA Subtitle C regulation without any exemption for de minimis CCR releases (e.g. fugitive emissions) that inevitably occur in the process. Collectively, these new regulatory requirements would impose huge demands on personnel and station operations substanti ally and significantly increasing operating costs.

Response: The commenter’s concerns about de

- minimis CCR fugitive dust are laid to rest considering that this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final ru le’s preamble.

### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06422

- 18



### Organization 1 

### : Dynegy Inc 

### Commenter 1 : Ben C. Trammell Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text: Given the volume of CCRs, Subtitle C regulation would also create numerous other practical problems, including artificially creating a severe scarcity of commercial hazardous waste landfill disposal capacity and CCR transport issues. For example, in Illinois, there currently are no hazardous waste landfills that are accepting hazardous waste for disposal. The nearest hazardous waste landfill that could accept coal ash from our Illinois facilities is located near Indianapolis, Indiana. As a result, to dispose CCRs in accordance with Subtitle C regulation, Dynegy would have to transport all CCRs from our Illinois coal

- fired power plants hundreds of miles to out

- of state hazardous waste landfills, causing increased emissions from transport vehicles and practical compliance concerns as any de minim is release of CCRs during the increased handling and transport activities would constitute unauthorized disposal of a hazardous waste. Based on a recent price quote from the nearest out

- of

- state hazardous waste landfill, the annual cost of transporting and disposing coal ash from our Illinois facilities to meet Subtitle C requirements alone would be expected to exceed $74 million. Such excessive increased costs are not justified where Subtitle D regulation of CCRs as a non

- hazardous waste provides equivalen t controls.

Response: The commenter’s concerns about de

- minimis CCR fugitive dust are laid to rest considering that this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 26 

### Organization 1 

### : NiSource Corporate Services 

### Commenter 1 : Dale A. Helmers Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text: Air Requirements (40 C.F.R. §§ 264.1308 and 265.1308)

EPA’s attempt to regulate air emissions under RCRA is arbitrary and capricious. Most electric generating facilities have operating permits issued under 40 C.F.R. Part 70 (“Title V Clean Air Act Permits”) that address fugitive dust from CCR management units, including C CR surface impoundments and CCR landfills. Furthermore, most State Implementation Plans approved or promulgated by the EPA Administrator pursuant to section 110 of the Clean Air Act regulate fugitive dust emission limits.

EPA has wrongfully included an e mission limit without providing any information on how that limit is to be complied with. For example, EPA has provided no information on the particle size, the form of the standard, whether an averaging period is available, the point of compliance, orhow one considers upwind sources. The proposed standard appears to have been lifted from the

24 hr PM2.5 NAAQS. However, the proposal fails to properly incorporate all of the compliance standards set forth in the NAAQS and, therefore, conflicts with the requi rements promulgated under the Clean Air Act. Therefore, the requirement is arbitrary and capricious. Any attempt to regulate fugitive dust emissions from CCR units should contain an alternative standard if (a) one has been established pursuant to applicabl e requirements developed under a State Implementation Plan approved or promulgated by the Administrator pursuant to section 110 of the Clean Air Act, as amended, (which is provided for in the Subtitle D proposal) or (b) one is contained in an applicable Ti tle V Clean Air Act Permit. Such alternatives include the entire spectrum of existing requirements that regulate fugitive dust emissions, avoid confusion on how the standard is to be implemented and avoid conflicts with how fugitive dust emissions are
regu lated under the Clean Air Act and approved State Implementation Plans.

Response: EPA received several comments arguing that the proposed numeric particulates standard was incompatible with the air quality requirements established under the States’ Implemen tation Plans (SIPs) or with provisions set up by the States in their Title V Clean Air Permits to the power producers. In light of these comments, EPA reevaluated the existing CAA standards applicable to these units; 40 CFR § 70.2 identifies fossil

- fuel

- fi red steam electric plants of more than 250 million BTU/hour heat input as potential sources of fugitive dust (PM sources) that must be covered by state permitting, and 40 CFR part § 70.3 stipulates that “Fugitive emissions from a part 70 source shall be in cluded in the permit application and the part 70 permit in the same manner as stack emissions, regardless of whether the source category is included in the list of sources contained in the definition of major source.” Based on these applicable CAA requirem ents, the Agency agrees that the adoption of a PM standard under the final rule would entail a potential for duplication or inconsistency with applicable state

- established standards in SIP permits.

In response to comments that the proposed standard lacke d technical details to facilitate effective implementation, EPA acknowledges the challenges involved in measuring the proposed compliance standard. Therefore, rather than requiring a potentially redundant and challenging

- to

implement quantitative standard, EPA is substituting a performance standard for fugitive dust control. This standard requires owners or operators of a CCR unit to adopt measures that will effectively minimize CCR from becoming airborne at the facility, including CCR fugitive dust originating from CCR units, CCR piles, roads, and other CCR management activities. The Agency considers this standard to be consistent with the intent of the proposed rule, with the added advantage of allowing facilities the fl exibility to determine the appropriate measures to achieving regulatory compliance at their individual site.

As in the proposal, the Agency is also requiring documentation of the measures taken to comply with the technical standard in a “CCR fugitive du st control plan” (herein referred to as “plan”). Consistent with the proposal, the plan must be certified by a qualified professional engineer and placed in the operating record and on the owner or operators publicly accessible internet site. The plan re quires owners or operators to elaborate on the types of activities applicable and appropriate for the conditions at the facility that will be employed to minimize CCR from becoming airborne at the facility. Examples of control measures that may be appropri ate include: locating CCR inside an enclosure or partial enclosure; operating a water spray or fogging system; reducing fall distances at material drop points; using wind barriers, compaction, or vegetativecovers; establishing and enforcing reduced vehicl e speed limits; paving and sweeping roads;

covering trucks transporting CCR; reducing or halting operations during high wind events; or applying a daily cover.

The Agency also requires that the CCR fugitive dust control plan include a description of the procedures the owner or operator will follow to periodically assess the effectiveness of the control plan. Consistent with other plans required in this rule, the owner or operator may amend the written CCR fugitive dust control plan at any time. However, the owner or operator must amend the written plan whenever there is a change in conditions that would substantially affect the written plan in effect, such as the construction and operation of a new CCR unit. The plan and any subsequent amendments must be certified by a qualified professional engineer. In addition, the Agency is promulgating with a slight modification the requirement for owners and operators of al l CCR landfills and any lateral expansion to emplace CCR as conditioned CCR, using either water or an appropriate chemical dust suppression agent. In order to ensure that the provisions of the fugitive dust criteria are maintained throughout the operating life of the CCR unit, the Agency is requiring that the owner or operator prepare an annual CCR fugitive dust control report, describing the actions taken to control CCR fugitive dust, a record of all citizen complaints, and a summary of any corrective meas ures taken in response to citizen’s complaints. The annual report has to be placed in the facility’s operating record.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06532

- 23 

### Organization 1 

### : Southern Illinois Power Cooperative 

### Commenter 1 : Leonard F. Hopkins Comm enter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text: Air Requirements (40 C.F.R. §§ 264.1308 and 265.1308)

EPA’s attempt to regulate air emissions under RCRA is arbitrary and capricious. Most electric generating faciliti es have operating permits issued under 40 CFR Part 70 (“Title V Clean Air Act Permits”) that address fugitive dust from CCR management units, including CCR surface impoundments and CCR landfills. Furthermore, most State Implementation Plans approved or
pro mulgated by the EPA Administrator pursuant to section 110 of the Clean Air Act regulate fugitive dust emission limits.

EPA has wrongfully included an emission limit without providing any information on how that limit is to be complied with. For example, EPA has provided no information on the particle size, the form of the standard, whether an averaging period is available, the point of compliance, or how one considers upwind sources. The proposed standard appears to have been lifted from the 24 hr PM2.5 N AAQS. However, the proposal fails to properly incorporate all of the compliance standards set forth in the NAAQS and, therefore, conflicts with the requirements promulgated under the Clean Air Act. Therefore, the requirement is arbitrary and capricious. Fu rthermore, any attempt to regulate fugitive dust emissions from CCR units should contain an alternative standard if (a) one has been established pursuant to applicable requirements developed under aState Implementation Plan approved or promulgated by the Administrator pursuant to section

110 of the Clean Air Act, as amended, (which is provided for in the Subtitle D proposal) or (b) one is contained in an applicable Title V Clean Air Act Permit. These alternatives include the entire spectrum of existing req uirements that regulate fugitive dust emissions, avoid confusion on how the standard is to be implemented and avoid conflicts with how fugitive dust emissions are regulated under the Clean Air Act and approved State Implementation Plans.

Response: See resp onse to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 26.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06722

- 12 

### Organization 1 

### : Arkansas Electric Cooperative Corporation (AECC) 

### Commenter 1 : Jonathan Oliver Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text: It is important to note that, due to the sheer volume and physical composition of CCRs, de minimis volumes of CCRs are inevitably released during normal power generation and subsequent CCR handling operations (e.g., fugi tive and de minimis emissions from ash conveyor equipment or loading equipment; during the transport/handling of CCRs for beneficial use). These de minimis releases are virtually impossible to prevent, even with the most sophisticated CCR handling, conveya nce, and storage equipment. It would be unjustified and unreasonable to subject electric utility coal

- fired power plants to liability for what would essentially be a perpetual state of RCRA non

- compliance. This is exactly what would happen under the curren t proposal, which contains no de minimis exemption for listed wastes and would therefore render even the de minimis releases described above improper hazardous waste disposal.

Response: The commenter’s concerns about de

- minimis CCR fugitive dust are laid to rest considering that this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06833

- 25 

### Organization 1 

### : Dominion Resources Services, Inc. 

### Commenter 1 : Lisa J. Keck on behalf of Pamela Faggert Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text: EPA's proposed Subtitle C option would present serious practical and compliance concerns for Dominion's coal

- fired power plant o perations. Most significantly, due to the large volume and the physical composition of CCRs, de minimis volumes of CCRs are inevitably released during normal power generation and subsequent CCR handling operations, such as fugitive and de minimis emissions from ash conveyor equipment or loading equipment and during the transport/handling of CCRs for disposal or beneficial use. This holds true despite utilization ofeven the most sophisticated CCR handling, conveyance, and storage equipment; de minimis

relea ses of these materials are virtually impossible to prevent. However, if non· hazardous CCRs are regulated as a listed "special waste" subject to full hazardous waste regulation, even these de minimis releases would constitute improper hazardous waste dispo sal, subjecting electric utility coal

- fired power plants lo liability for what would likely be a perpetual state of RCRA non

compliance. This is because RCRA Subtitle C contains no de minimis exemption for listed wastes; any material, no matter how small o r inconsequential, derived from a listed hazardous waste remains subject to full Subtitle C regulation.

Clearly, the prospect of Subtitle C liability for any de minimis release or spill of CCRs during handling operations prior to their placement into a d isposal unit is a significant compliance concern, even though there is no measureable environmental risk associated with such de minimis releases. Dominion strives for full compliance with all applicable environmental laws and regulations, but the Subtitle C option would make this objective virtually impossible to achieve. Moreover, the fact that such inevitable releases would constitute improper disposal would expose facilities to continual citizen suits based solely on these de minimis and inconsequential releases. This result, which comes from overly stringent regulation of CCRs, would be both an unjustifiable burden on the regulated community and wasteful of agency and judicial resources. In addition, Dominion is very concerned with EPA's proposal that C CRs destined for disposal be managed as a listed "special waste" under Subtitle C while CCRs destined for beneficial use are exempt from this requirement. At Dominion facilities, we often do not know at the point of generation whether or not the CCRs will be disposed or beneficially used. Under EPA's proposed Subtitle C option, we would be required to manage CCRs as hazardous until such time that they are designated for beneficial use. At that time, the CCRs would no longer be considered a listed "special w aste" under Subtitle C. This poses a logistical and operational dilemma at Dominion facilities since CCRs could be designated for beneficial usc at any point in thc process, including after being disposed in a CCR disposal facility. For example, Dominion h as a facility where we arc able to remove CCRs from the disposal facility, process them appropriately, and then beneficially use the material. Under the proposed Subtitle C option, we would be required to handle and dispose of the CCRs as a listed "special waste" until the time that the CCRs arc removed and processed for beneficial use. At that time, the same CCRs that were disposed as a listed "special waste" would now be exempt from regulation under Subtitle C, but may become subject to other regulations. This type of scenario makes it extremely difficult to effectively manage and control the CCRs and ensure compliance with different regulations that may apply at different points in the process.

Response: The commenter’s concerns about de

- minimis CCR fugi tive dust are laid to rest considering that this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 19 

### Organization 1 

### : Avista Corp. 

### Commenter 1 : Darrell Soyars Commenter Type: Electric Utility Company Classification: Substantive

### Comment Excerpt Text:

One of the fundamental reasons EPA cited for deciding not to regulate CCRs in its final Regulatory Determination for the four large

- volume CCRs was the recog nition that the inflexible, one

- size

- fits

- all nature of the Subtitle C hazardous waste program simply was not appropriate for the diverse nature of CCR disposal facilities. This conclusion remains true today; the Subtitle C hazardous waste program remains inappropriate for CCRs as this option will present serious practical and compliance concerns for coal

- fired power plant operations. Most significantly, due to the sheer volume and the physical composition of CCRs, de minimis volumes of CCRs are inevitably released during normal power generation and subsequent CCR handling operations ( e.g. , fugitive and de minimis emissions from ash or synthetic gypsum conveyor equipment or loading equipment and during the transport/handling of CCRs for beneficial use). Thi s holds true notwithstanding utilization of even the most sophisticated CCR handling, conveyance, and storage equipment; de minimis releases of these materials are virtually impossible to prevent. Nonetheless, if CCRs are regulated as a listed “special was te” subject to full hazardous waste regulation, even these de minimis releases might constitute improper hazardous waste disposal, subjecting electric utility coal

- fired power plants to potential liability for what would likely be a perpetual state of RCRA

non

- compliance. This is because RCRA Subtitle C apparently contains no de minimis exemption for listed wastes; any material, no matter how small or inconsequential, derived from a listed hazardous waste remains subject to full Subtitle C regulation. See 4 0 C.F.R. § 261.3(c)(2). The prospect that Subtitle C liability would exist for any de minimis release or spill of CCRs during handling operations, and prior to their placement into a disposal unit, is a significant compliance concern, even though there is very little risk associated with such de minimis releases. Colstrip strives for full compliance with all applicable environmental laws and regulations, as do other coal

- fired plants, but the Subtitle C option would make this objective virtually impossible to achieve. Moreover, the fact that such inevitable releases would constitute improper disposal would expose facilities to continual costly and harassing legal suits based solely on these de minimis and inconsequential releases. This illogical result, flo wing from overly stringent and unnecessary regulation is precisely the type that Congress directed EPA to avoid when issuing any final CCR regulations under RCRA. Such regulation would be both an unjustifiable burden on the regulated community and wasteful of agency and judicial resources. See 126 Cong. Rec. at 3361.

Response: The commenter’s concerns about de

- minimis CCR fugitive dust are laid to rest considering that this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06987

- 20 

### Organization 1 

### : Entergy Services, Inc. 

### Commenter 1 : Joseph Hantz Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text:The Subtitle C hazardous waste program is not appropriate for CCRs as it presents serious

practical and compliance concerns for coal

- fired power plant operations. Most significantly, due to the sheer volume and the physical composition of CCRs, de minimis volumes of CCRs are inevitably released during normal power generation and subsequent CCR handling operations (e.g., fugitive and de minimis emissions from ash conveyor equipment or loading equipment and during the transport/handling of CCRs for beneficial use). This holds true notwithstanding utilization of even the most sophisticated CCR handling, conveyance, and storage equipment; de minimis releases of these materials are virtually impossible to prevent. Nonetheless, if CCRs are regulated as a listed “s pecial waste” subject to full hazardous waste regulation, even these de minimis releases would constitute improper hazardous waste disposal, subjecting electric utility coalfired power plants to liability for what would likely be a perpetual state of RCRA non

compliance. This is because RCRA Subtitle C contains no de minimis exemption for listed wastes; any material, no matter how small or inconsequential, derived from a listed hazardous waste remains subject to full Subtitle C regulation. [Footnote 6: 40 C .F.R. § 261.3(c)(2).].

Response: The commenter’s concerns about de

- minimis CCR fugitive dust are laid to rest considering that this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.



### Comment Num ber: EPA

- HQ

- RCRA

- 2009

- 0640

- 07001

- 17 

### Organization 1 

### : Vectren Corporation 

### Commenter 1 : Angila M. Reinerford Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text: Fly

- ash, by its nature is ubiquitous. It is extremely fine " dust," and despite a facility's best efforts ash residue can collect throughout the facility. Thus, classification of ash as a Subtitle C hazardous waste is likely to have additional unintended consequences on maintenance of plant systems which contain ash residue. Current maintenance activities that effectively protect the health and safety of the Vectren plant personnel may require unnecessary and burdensome protective equipment that does nothing to improve overall employee safety.

Response: The comment er’s concerns about de

- minimis CCR fugitive dust are laid to rest considering that this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07047

- 12 

### Organizat ion 1 

### : Great River Energy 

### Commenter 1 : Erik Silvola Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text:The Subtitle C option has significant compliance issues and effects on power plant operations.

This option would r equire enormously expensive retrofits of many plant systems to achieve compliance. Since there is no de minimis amount for any release or spill under Subtitle C any occurrence would constitute illegal disposal. Entire ash handling systems would need to be reconfigured to prevent any releases. New methods of transporting CCRs to the landfill would need to be invested in and it would be virtually impossible to stop all wind

- blown materials from leaving a landfill.

Response: The commenter’s concerns about de

- minimis CCR fugitive dust are laid to rest considering that this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08220

- 8 

### Organization 1 

### : PowerSouth Energy Cooperative 

### Commenter 1 : Dr. Keith Stephens Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text: It is important to note that, due to the sheer volume and physical composition of CCRs, de minimis volumes of CCR s are inevitably released during normal power generation and subsequent CCR handling operations (e.g., fugitive and de minimis emissions from ash conveyor equipment or loading equipment; during the transport/handling of CCRs for beneficial use). These de m inimis releases are virtually impossible to prevent, even with the most sophisticated CCR handling, conveyance, and storage equipment. It would be unjustified and unreasonable to subject electric utility coal

- fired power plants to liability for what would essentially be a perpetual state of RCRA non

- compliance, but this is exactly what would happen under the current proposal, which contains no de minimis exemption for listed wastes and would therefore render even the de minimis releases described above impr oper hazardous waste disposal.

Response: The commenter’s concerns about de

- minimis CCR fugitive dust are laid to rest considering that this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.



### Co mment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08690

- 4 

### Organization 1 

### : Commenter 1 : Greg A. VanDerwerker Commenter Type: Private Citizen Classification: Substantive



### Comment Excerpt Text: Coal ash is also dangerous if inhaled; the tiny toxic particles enter the lungs and can pass into the blood stream. Enforceable and monitored regulations are needed to prevent the ash becoming aerosolized during its manufacture handling and disposal.Res

ponse: EPA updated the screening analysis of fugitive dust. EPA agrees that there are potential risks posed by fugitive emissions from sources beyond wind and revised the analysis to consider emissions from a range of activities, such as vehicular activity , unloading operations and spreading/compacting operations. Model inputs were selected to be representative of current landfills, environmental settings (e.g., meteorological conditions) and common dust management practices. Estimated air concentrations we re used to screen acute and chronic health risks from inhalation, as well as the potential to exceed NAAQS standards. Furthermore, EPA considered exposures that may result from the offsite deposition on and accumulation in downgradient media. Further discu ssion of this screening analysis is presented in Section 3 and Appendix F of the revised risk assessment in the docket of this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08841

- 24 

### Organization 1 

### : Deseret Generation and Transmission Co

- operative 

### Commenter 1 : Howard Vickers Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text: It is important to note that, due to the sheer volume and physical composition of CCRs, de minimis volumes of CCRs are inevitably released during n ormal power generation and subsequent CCR handling operations (e.g., fugitive and de minimis emissions from ash conveyor equipment or loading equipment; during the transport/handling of CCRs for beneficial use). These de minimis releases are virtually impo ssible to prevent, even with the most sophisticated CCR handling, conveyance, and storage equipment. It would be unjustified and unreasonable to subject electric utility coal

- fired power plants to liability for what would essentially be a perpetual state o f RCRA non

- compliance, but this is exactly what would happen under the current proposal, which contains no de minimis exemption for listed wastes and would therefore render even the de minimis releases described above improper hazardous waste disposal.

R esponse: The commenter’s concerns about de

- minimis CCR fugitive dust are laid to rest considering that this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08865

- 11 

### Organization 1 

### : Geosyntec Consultants 

### Commenter 1 : John Seymour Commenter Type: Other Company Classification: Substantive



### Comment Excerpt Text: Based on our experience with permitting Subtitle C facilities and our experience a t power plants, the level of waste management that will be imposed by a Subtitle C regulation will be confusing, burdensome, and inconsistent by trying to decide how to manage the materials from the point ofgeneration, whether it is Subtitle C or to be be neficially reused. On any day, the same dry CCR

may be sent for disposal or sent to a reuse company; whether it can be reused may be dependent simply upon the weather or the commercial user’s need. But that wouldn’t be known until that day. Therefore, the management procedures must fall back to a Subtitle C default which would require all of the waste tracking, manifesting, and other Subtitle C requirements for all of the CCRs.

What is not discussed in the proposed rule is that at a coal fueled power plan t there is fly ash and other CCRs all over the plant and property because of the dusty nature of the materials. Will all dust be required to be controlled under Subtitle C? If so, rigorous containment and air filtration systems could be required at the poi nt of generation at each plant for a material that has historically not demonstrated significant human health risks for plant workers when following appropriate health and safety personnel protective equipment protocols. This control approach may be forced on the plants because of the stigma that workers are not being protected from the “hazardous” nature of the waste unless the control systems are in place. In contrast, the additional dust controls from the point of generation would not be required under e ither Subtitle D proposal making the Agencies approach to regulate under Subtitle C inconsistent.

The basic technical containment and monitoring approach to the Subtitle D proposals and Subtitle C proposal are the same. Consequently, many technical comme nts are that are provided under the Subtitle D portion of this comment letter also apply to the Subtitle C proposal.

Response: The commenter’s concerns about de

- minimis CCR fugitive dust are laid to rest considering that this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 12 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC) 

### Commenter 1 : Keith Bastian Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text: In addition to the legal hurdles posed by CCR regulation under Subtitle C, the Subtitle C option would impose serious and often intractable compliance problems for PSGC given the physical nature of CCRs a nd the volume of CCRs generated. Due to the sheer volume and the physical composition of CCRs, de minimis volumes of CCRs are inevitably released during normal power generation and subsequent handling operations (e.g. , fugitive and de minimis emissions fr om ash conveyor equipment or loading equipment and during the transport/handling of CCBs for beneficial use). Despite PSGC's extensive CCR management practices, de minimis releases are virtually impossible to prevent. Nonetheless, if CCRs are regulated und er Subtitle C, these de minimis releases would likely constitute unproper hazardous waste disposal subjecting PSGC to potential liability. This is because RCRA Subtitle C contains no de minimis exemption for listed wastes. See 40 C.F.R. § 261.3(c)(2). Give n the fact that there is very little, if any, risk associated with such de minimis releases (as demonstrated by the lack of damages cases) such an approach creates an unjustifiable burden on PSGC and is wasteful of agency and judicial resources.Response: The commenter’s concerns about de

- minimis CCR fugitive dust are laid to rest

considering that this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 47 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC) 

### Commenter 1 : Keith Bastian Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text: Air Requirements (40 C.F.R. §§ 264.1308 and 265.1308) EPA's attempt to regulate air emissions under RCRA is arbitrary and capricious. Most electric generating facilities have operating permits issued under 40 C.F.R. Part 70 ("Title V Clean Air Act Permits") that address fugitive dust from CCR management units , including CCR surface impoundments and CCR landfills. Furthermore, most State Implementation Plans approved or promulgated by the EPA Administrator pursuant to section 110 of the Clean Air Act regulate fugitive dust emission limits. EPA has wrongfully in cluded an emission limit without providing any information on how that limit is to be complied with. For example, EPA has provided no information on the particle size, the form of the standard, whether an averaging period is available, the point of complia nce, or how one considers upwind sources. The proposed standard appears to have been lifted from the 24 hr PM2.5 NAAQS. However, the proposal fails to properly incorporate all of the compliance standards set forth in the NAAQS and, therefore, conflicts wit h the requirements promulgated under the Clean Air Act. Therefore, the requirement is arbitrary and capricious. Any attempt to regulate fugitive dust emissions from CCR units should contain an alternative standard if (a) one has been established pursuant t o applicable requirements developed under a State Implementation Plan approved or promulgated by the Administrator pursuant to section 110 of the Clean Air Act, as amended, (which is provided for in the Subtitle D proposal) or (b) one is contained in an ap plicable Title V Clean Air Act Permit. Such alternatives include the entire spectrum of existing requirements that regulate fugitive dust emissions, avoid confusion on how the standard is to be implemented and avoid conflicts with how fugitive dust emissio ns are regulated under the Clean Air Act and approved State Implementation Plans.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 26.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09427

- 11 

### Organization 1 

### : San Miguel Electric Cooperative, In c. (San Miguel) 

### Commenter 1 : Joseph G. Eutizi Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text: It is important to note that, due to the sheer volume and physical composition of CCRs, deminimis volumes of CCRs are inevitably released during normal power generation and

subsequent CCR handling operations (e.g., fugitive and de minimis emissions from ash conveyor equipment or loading equipment; during the transport/handling of CCRs for beneficial use). These de minimis releases are virtually impossible to prevent, even with the most sophisticated CCR handling, conveyance, and storage equipment. It would be unjustified and unreasonable to subject electric utility coal

- fired power plants to liability for what would essent ially be a perpetual state of RCRA non

- compliance, but this is exactly what would happen under the current proposal, which contains no de minimis exemption for listed wastes and would therefore render even the de minimis releases described above improper h azardous waste disposal.

Response: The commenter’s concerns about de

- minimis CCR fugitive dust are laid to rest considering that this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09880

- 8 

### Organization 1 

### : FirstEnergy Corporation 

### Commenter 1 : Michael L. Horvath Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text: Fugitive dust emissions of CCR wastes should not be regulated as a RCRA C waste. Fugitive emissions are covered by a separate regulation, which will be in conflict with RCRA C regulation of CCRs. Fugitive dust emissions could happen during operation of the dry ash systems at generating plants, during loadin g of trucks for disposal, or in route to the disposal facility. However, fugitive dust emissions from coal ash have not been demonstrated to present environmental concerns or a mass release such as the Kingston Plant release, and there is no evidence that fugitive dust emissions have ever resulted in ground water contamination. Fugitive dust emissions of CCR wastes at the generating facilities and in transport should remain regulated under existing fugitive dust regulations and not be considered an unpermit ted release of a hazardous waste.

Response: The commenter’s concerns about de

- minimis CCR fugitive dust are laid to rest considering that this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10324

- 8 

### Organization 1 

### : Public Service Company of New Hampshire (PSNH) 

### Commenter 1 : William H. Smagula Commenter Type: Electric Utility Company Classification: Substantive



### Comment Excerpt Text: Even de releases of ash d uring normal operations would constitute improper hazardous waste disposal, subjecting our plants to liability for what would likely be a perpetual state of RCRAnon

- compliance. This is because RCRA Subtitle C contains no exemption for listed wastes;

mater ial, no matter how small or inconsequential, derived from a listed hazardous waste remains subject to full Subtitle C regulation. [40 C.F.R. § 261.3(c)(2)].

Response: The commenter’s concerns about de

- minimis CCR fugitive dust are laid to rest considering that this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.