### MEMORANDUM

_____________________________________________________________________________ 19 November 2010

To: United States Environmental Protec tion Agency (sent via email to rcradocket@epa.gov)
cc: Mr. Peter Dunbar

From: Mr. Paul Petzrick and Mr. Shawn Se aman of the Maryland Department of Natural Resources Power Plant Research Program

Subject: Docket ID No. EPA-HQ-RCRA-2009-0640, Comments to Hazardous and Solid Waste Management System: Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities; Proposed Rule (21 June 2010)

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The Maryland Power Plant Research Program (PPRP) has reviewed the Environmental Protection Agency’s (EPA) Docket ID No. EPA-HQ-RCRA-2009-0640 dated 21 June 2010 detailing the Agency’s two proposed approaches for regulating the disposal and
beneficial use of coal combustion residuals (CCRs): regulation under Subtitle C as a special waste, or regulation under Subtitle D as a nonhazardous waste. In response to EPA’s requests for comment on several issues within this document, PPRP has prepared the following comments.

I) Regarding the two regulatory approaches and interaction with existing state

programs.

PPRP supports regulating the disposal of CCRs under Subtitle D as a non-hazardous waste. PPRP notes that the vast majority of damage cases reported by EPA regarding the dry disposal of CCRs (i.e. not surface impoundments) are related to unlined landfills or unlined structural fill projects. It is reasonable to assume that the inclusion of liners and leachate collection systems at these facilities would have dramaticallyMaryland Department of Natural Resources Power Plant Research Program Page 2 of 5

decreased or prevented impacts to ground water. Under the two approaches proposed by EPA, the engineering and construction re quirements for CCR landfills would be the same as for municipal solid waste landfills, which are regulated under Subtitle D (Section VI of the proposed rule). Thus, regulation under Subtitle C would not provide additional protection against damage from unlined CCR landfills and would only impose burdensome and costly reco rdkeeping and administrative requirements.

II) Regarding the regulation of beneficial uses of CCRs (encapsulated and unencapsulated).

PPRP strongly supports the continued use of the Bevill exemption for the beneficial use of CCRs in encapsulated applications, su ch as wallboard, concrete, and bricks. The use of CCRs in these types of applications reduces the use of raw materials; in some cases, reduces greenhouse gas emissions; and reduces volume of CCRs that must be placed into landfills. Furthermore, the use of CCRs in these applications has not been shown to pose a risk to human health or the environment.

EPA has also requested comments regarding un encapsulated beneficial uses of CCRs, such as structural fill, road base, traction control, and agricultural amendments. PPRP notes that some of the damage cases and potential damage cases cited by EPA resulted from large quantities of CCRs used as struct ural fill material for sand and gravel pits or large scale landscaping (specifically the BBSS Sand and Gravel Quarry in Maryland, and the Battlefield Golf Course in Virginia).

PPRP notes that EPA has excluded the following from its definition of “beneficial use”: backfill of sand and gravel pits, large scale land recontouring, and agricultural application in excess of scientifically shown crop requirements. PPRP concurs that the use of CCRs in large quantities in poorly engineered applications can cause negative impacts to ground water and surface water.

III) Regarding the status of state regulations and potential impacts of new federal regulations.

EPA’s proposed rule acknowledges that some states have improved their regulation of CCR disposal since the 2000 (Section IV.B.a of the proposed rule). Maryland is one of these states. Recent improvements to Maryland’s regulation of the disposal and
beneficial use of CCRs are as follows:Maryland Department of Natural Resources Power Plant Research Program Page 3 of 5

 In 2008, the state of Maryland passed regulations on the disposal of CCRs. These regulations require permitting of new CCR disposal facilities under the same regulations as industrial solid waste facilities including:

 Landfill siting requirements;

 Landfill design including: a liner of 1 foot of clay at 1x10-7 cm/sec permeability or a synthetic liner; landfill operation and maintenance; and closure and monitoring;

 CCRs may not be stored in unlined surfaces, impoundments or pits; and

 Annual reporting of the generators of CCRs received at the landfill; a description of the processes used to generate the CCRs, the volume of CCRs received, laboratory reports of chemical characterization of the CCRs.

 In addition, in 2009, the state of Maryland also proposed regulations on the beneficial use of CCRs. Although the final form of these regulations has not yet been passed, the following considerations were included in the draft:

 CCRs that are beneficially used or the products that are made from the CCRs must be shown to be not significantly leachable materials. Although the required leaching procedure has not yet be specified, the parameters that must be tested are identified in the draft regulation.

 Solidified (encapsulated) beneficial uses of CCRs (concrete, asphalt, wallboard, and filler in plastic) are approved beneficial uses so long as the resultant product is shown to be not a significantly leachable material.

 Certain unconsolidated (unencapsulated ) beneficial uses of CCRs (bottom ash as aggregate beneath pavement, pipe bedding, and winter traction control) are permitted with restrictions. Restrictions include:

 Total thicknesses or amounts of material that may be used for a given project;

 Written notification of the Maryland Department of the Environment if amounts of material over a certain tonnage are to be used;Maryland Department of Natural Resources Power Plant Research Program Page 4 of 5

 A minimum vertical separation between placed CCRs and the ground water table, and proof that the ash to be used is not a significantly leachable material; and

 In cases of large scale use of CCRs in unconsolidated form, the regulation allows the Maryland Department of the Environment to require public notification and opportunity to comment as well as post-construction monitoring.

Notwithstanding Maryland’s new regulations, PPRP agrees that establishing a national minimum standard for the proper disposal of CCRs will ensure that these materials are handled in a safe and consistent manner throughout the country.

IV) Regarding Beneficial Use

PPRP agrees with many of the commenters th at regulating CCRs under Subtitle C will carry a stigma that will curtail the beneficial use of these materials. PPRP’s concern is heightened by the fact that Maryland benefi cially uses greater than 50% of the fly ash produced by its power plants, surpassing th e national average. Use in cement and concrete production in Maryland tops the list of beneficial use applications, followed by structural fills and waste stabilization.

PPRP’s concern is consistent with, for example, with the opinions expressed to EPA by the American Concrete Institute (ACI) an d the American Society for Testing and Materials (ASTM). ASTM, in particular, stated in its letter to EPA’s Administrator that “A hazardous waste designation, even with an exclusion for beneficial use would cause the ASTM standard for fly ash to be removed from project specifications due to concerns over legal exposure, product liability, and public perception.”

Summary

In summary, PPRP supports the following future actions by EPA:

 Regulation of the disposal of CCRs unde r Subtitle D as non-hazardous wastes and not under a Subtitle D prime or Subtitle C regulation; and

 Continued allowance of encapsulated beneficial uses of CCRs.Maryland Department of Natural Resources Power Plant Research Program Page 5 of 5

References

American Concrete Institute. Letter from Jenny Hitch and Anthony E. Fioranto, ASTM, to Ms. Lisa Jackson, EPA Administrator, 23 December 2009.

American Society for Testing and Materials. Letter from Florian G. Barth and William R. Tolley, ACI , to Ms. Lisa Jackson, EPA Administrator, 22 September 2009.

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Please call us at 410-260-8660 if questions arise or if you would like additional
information from PPRP.

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