# NCDENR North Carolina Department of Environment and Natural Resources

Division of Waste Management Beverly Eaves Perdue Dexter R. Matthews Dee Freeman Governor Director Secretary November 17, 2010

Honorable Lisa Jackson, Administrator United States Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Ave., N.W. MC 1101A Washington, DC 20460 Hazardous Waste Management System Identification and Listing of Special Wastes Disposal of Coal Combustion Residuals From Electric Utilities Docket Attention Docket ID No., EPA-HQ_RCRA-2009-0640 Environmental Protection Agency Mailcode:5305T 1200 Pennsylvania Ave., NW Washington, DC 20460 Dear Administrator Jackson, I am writing to provide an overview of concerns regarding the June 21 , 2010, proposed rule entitled Hazardous and Solid Waste Management System ; Identification and Listing of Special Waste; Disposal of Coal Combustion Residuals (CCRs) From Electric Utilities. I have also enclosed more technical comments on the alternative rule proposals for submission in the rulemaking docket

. Comments represent input from three divisions within the Department of Environment and Natural Resources , which include the Division of Waste Management, the Division of Water Quality, and the Division of Land Resources. The proposed rule details an option for regulating disposal of coal combustion residuals under Subtitle C of RCRA, and an alternative of regulating disposal of those materials under Subtitle D of RCRA. The two alternatives include many of the same proposed technical requirements for disposal of coal combustion residuals in surface impoundments or landfills . The North Carolina Division of Waste Management, Department of Environment and Natural Resources (NCDWM) believes that the core requirements shared by the two alternatives take appropriate steps toward addressing the risks from the disposal of CCRs.

1646 Mail Service Center. Raleigh, North Carolina 27699-1646 Phone: 919-508-8400 \ FAX: 919-715-4061 1 Internet : www.wastenotnc.org An Equal Opportunity \ Affirmative Acton Employer 

## North Carolina 

# naturallyThe Division does not believe, however, that either of the alternatives proposed is

completely satisfactory. We have two primary concerns; 1. the potential negative consequences of regulation under Subtitle C of RCRA; and 2. the absence of certain specific requirements under Subtitle D that would ensure responsible use or disposal of these materials. As a result, the Division recommends that these materials should be addressed through an enhanced regulatory scheme under Subtitle D of RCRA. North Carolina, along with EPA and other states across the country, promotes the reuse and recycling of solid waste. A significant percentage of coal combustion residuals generated in North Carolina are reused or recycled. Regulation of CCRs destined for disposal as a hazardous waste under RCRA will have a chilling effect on an important industry that is reducing the volume of CCRs disposed. There are options available to address risks from the disposal of CCRs that avoid this undesired effect. NCDWM proposes that EPA regulate CCRs under Subtitle D of RCRA with modifications to the current proposal. Rule changes -- and if necessary statutory changes -- should be made to make federally approved state permitting programs the foundation for regulating CCR disposal. EPA should also provide financial incentives for states to implement federal criteria through state solid waste programs. A system of prior approval exists in most, if not all, states that will ensure greater consistency across the country than the current self-implementing proposal under Subtitle D. Regulation under Subtitle D should embrace the existing state permitting programs. A federal approval role would ensure that those permitting programs meet or exceed minimum national criteria for CCR disposal. The implementation schedule for a final rule under Subtitle D would need to allow time for states to make necessary changes in existing state rules and statutes to incorporate federal criteria. One element that should be added to regulation under Subtitle D is a requirement for financial assurance. Financial assurance for closure, post closure care, and corrective action should be included in the final rule as a mechanism to ensure that funds will be provided by owner and operators to carry out these activities. With an enhanced regulatory system under Subtitle D that recognizes state permitting programs and provides financial incentives for states to implement federal criteria, EPA can address the risks of disposal of CCRs without risk of damaging existing reuse and recycling markets. Since ly,

Dexter R. Matthews

cc: Robin Smith, NC DENR Coleen Sullins , NC DENR DWQ Jim Simons, NC DENR DLR

Enclosure