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

(Dockets # EPA-HQ-RCRA-2009-0640, EPA-HQRCRA-2011-0392, and EPA-HQ-RCRA-2012-0028)

Volume 8: Operating Criteria: Air Criteria

December 2014
Background

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 and 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 

subject to hazardous waste regulations 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 comments 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.

EPA-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 available 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 OSWER 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 subtitle 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 the 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 the 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/Inspections/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

Organization1: Arizona Department of Environmental Quality (ADEQ)

Commenter1: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 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 included 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 

requirements, 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. 

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 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. 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. 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

Organization1: Constellation Energy

Commenter1: 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 at 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’ 

Implementation 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 implementation 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.

Comment Number: EPA-HQ-RCRA-2009-0640-00358-5

Organization1: Citizens for Clean Power (CCP)

Commenter1: John Austin

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

The proposed subtitle C approach would require that surface impoundments 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 proposing 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 otherwise 
managing CCRs to control 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 limitations 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 CCR 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 requirements 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 details 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 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 

included 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 requirements, 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. 

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 measured 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 who looks horizontally along the 
source’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 certification, 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 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 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

Organization1: Environment Maryland Research & Policy Center

Commenter1: 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 which 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 Environmental 

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 local 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 content 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 reclamation 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 emissions 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: Evidence 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 

public hearings and documented reports on fugitive dust issues provided by citizen groups. The 
stakeholders 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 dust 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 available statutory authorities, this rule is selfimplementing 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 professional 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 fugitive 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 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 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 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. 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. All these requirements should significantly reduce the particulate inhalation risk to 

communities adjacent to sites of CCR management. 

Comment Number: EPA-HQ-RCRA-2009-0640-04041-12

Organization1: Environment Maryland Research & Policy Center

Commenter1: 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 

water 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 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. 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 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. 

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 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 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-2009-0640-06068-11

Organization1: Utah Physicians for a Healthy Environment

Commenter1: 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 emphasize 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 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 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 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-2009-0640-06203-4

Organization1: Arizona Public Service Company (APS)

Commenter1: Scott Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

B. Potential for Continual Non-Compliance

The Subtitle C option would impose 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 tons 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-fits-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 early 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 CCRs 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 CCRs 
would be 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 relating 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 subsequent 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 stateof-the art CCR handling, conveyance, 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. In 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 boilers 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 of 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 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. APS strives for full compliance with all applicable 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 continual 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 Administer 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 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-2009-0640-06252-8

Organization1: Minnkota Power Cooperative, Inc. (Minnkota)

Commenter1: 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 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 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 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-2009-0640-06254-10

Organization1: Sunflower Electric Power Corporation

Commenter1: 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 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 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-2009-0640-06275-32

Organization1: Lansing Board of Water and Light (BWL) and Michigan State University 

(MSU)

Commenter1: 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 LBWL’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. Such 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 pressures 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 amounts 

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 routine 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., beams, 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 

that 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 

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-2009-0640-06299-7

Organization1: MidAmerican Energy Holdings Company (MidAmerican)

Commenter1: Cathy 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 inevitably 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 waste 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 entities, 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 effectively 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 extent 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 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-2009-0640-06300-48

Organization1: Southern Company on behalf of itself and its four subsidiaries: Alabama 

Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power 

Company

Commenter1: Chris M. Hobson
Commenter 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-diameter 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, available 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 dust 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 Response 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 final rule’s 

preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06325-4

Organization1: Commonwealth of Pennsylvania House of Representatives

Commenter1: Jessica R. Guyer on behalf of Scott E. Hutchinson

Commenter Type: State Elected Official

Classification: Substantive

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 states, 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 best 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

Organization1: Kansas City Power & Light Company

Commenter1: Paul M. Ling
Commenter 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 

regulation, 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 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 40 C.F.R. § 

261.3(c)(2).

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 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 inevitable 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

Organization1: Titan America LLC

Commenter1: 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 only 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 for 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 standards 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 enforcement 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 exemption. 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 

conduct 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 projects. 

NOTE TO LAUREL: Considering that this response is incompatible with the 2nd 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

Organization1: Dynegy Inc

Commenter1: 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 substantially 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 rule’s preamble.
Comment Number: EPA-HQ-RCRA-2009-0640-06422-18

Organization1: Dynegy Inc

Commenter1: 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 minimis 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 equivalent 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

Organization1: NiSource Corporate Services

Commenter1: 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 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 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 NAAQS. 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. 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 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 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 emissions are 

regulated 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’ 

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 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 included 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 

requirements, 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 lacked 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-toimplement 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 flexibility 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 dust 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 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. Examples of control measures that may be appropriate 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 vegetative 
covers; establishing and enforcing reduced vehicle 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 all 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 measures 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

Organization1: Southern Illinois Power Cooperative

Commenter1: Leonard F. Hopkins

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 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 

promulgated 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 NAAQS. 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. Furthermore, 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 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 Title V Clean Air Act Permit. These 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 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-2009-0640-06722-12

Organization1: Arkansas Electric Cooperative Corporation (AECC)

Commenter1: 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., 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 essentially be a 

perpetual state of RCRA non-compliance. 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. 

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

Organization1: Dominion Resources Services, Inc.

Commenter1: 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 operations. 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 of 
even the most sophisticated CCR handling, conveyance, and storage equipment; de minimis 

releases 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 disposal, subjecting electric utility 

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

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 disposal 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 CCRs 

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 waste" 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 has 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 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-2009-0640-06863-19

Organization1: Avista Corp.

Commenter1: 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 recognition 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). 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 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 40 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, flowing 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

Organization1: Entergy Services, Inc.

Commenter1: 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 “special 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 noncompliance. 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 Number: EPA-HQ-RCRA-2009-0640-07001-17

Organization1: Vectren Corporation

Commenter1: 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 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-2009-0640-07047-12

Organization1: Great River Energy

Commenter1: 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 require 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

Organization1: PowerSouth Energy Cooperative

Commenter1: 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 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 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 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-2009-0640-08690-4

Organization1:

Commenter1: 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. 
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 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 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 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

Organization1: Deseret Generation and Transmission Co-operative

Commenter1: 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 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 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 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-2009-0640-08865-11

Organization1: Geosyntec Consultants

Commenter1: John Seymour

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

Based on our experience with permitting Subtitle C facilities and our experience at 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 of 
generation, whether it is Subtitle C or to be beneficially 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 plant 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 point 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 either 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 comments 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

Organization1: Prairie State Generating Company, LLC (PSGC)

Commenter1: 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 and 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 from 

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 under 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). Given 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

Organization1: Prairie State Generating Company, LLC (PSGC)

Commenter1: 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 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 NAAQS. 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.

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 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 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 emissions 

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

Organization1: San Miguel Electric Cooperative, Inc. (San Miguel)

Commenter1: 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, 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 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 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-2009-0640-09880-8

Organization1: FirstEnergy Corporation

Commenter1: 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 loading 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 unpermitted 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

Organization1: Public Service Company of New Hampshire (PSNH)

Commenter1: William H. Smagula

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Even de releases of ash during normal operations would constitute improper hazardous waste 

disposal, subjecting our plants to liability for what would likely be a perpetual state of RCRA 
non-compliance. This is because RCRA Subtitle C contains no exemption for listed wastes; 

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)].

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.