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

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North Carolina

naturally
The 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