1

Comment Summary and Response Document

Hazardous and Solid Waste Management System;

Identification and Listing of Special Wastes; Disposal of 

Coal Combustion Residuals from Electric Utilities; 

Proposed Rule

(Docket # EPA-HQ-RCRA-2009-0640)

Volume 18

Public Hearings

December 2014
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Background

The U.S. Environmental Protection Agency (Agency or EPA) proposed regulations for 

the management of coal combustion residuals (CCR) 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 CCR 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 CCR as a special waste 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 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 CCR, i.e., under RCRA’s subtitle 

C or subtitle D provisions. EPA also conducted eight public hearings and took additional 

comments on the proposed rule. EPA has established three dockets for this regulatory action: 

EPA-HQ-RCRA-2009-0640; EPA-HQ-2011-0392; and EPA-HQ-RCRA-2012-0028. All of 

these dockets can be accessed through regulations.gov.

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 a comment summary and response 

document 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 (i.e., volume 18)

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 summary and response document.
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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) 

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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 

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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. 

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 

18 Public Hearings

This volume summarizes the comments received during the public hearings, as well as 

providing specific excerpts from the individual testimonies. Each comment excerpt in presented 

by topic area and includes: (1) the location of the public hearing (i.e., comment number); (2) the 

organization represented by the individual;(3) the commenter’s name; (4) the commenter type; 

(5) the classification of the comment; (6) other sections of the comprehensive CommentWorks 
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outline that the comment may relate to; and (7) the comment excerpt text itself. It is important to 

note that within each section, the CommentWorks program also identifies the total number of 

submisions and the total number of comments. These numbers represent the total number of 

comments received on each section of the outline, including both comments received from the 

public hearings and comments received from the proposed rule and the additional three notices 

of data availability (NODA).

Public Hearing Comment Summary

EPA held eight public hearings across the United States to provide interested persons the 

opportunity to present their views on the proposed rule. Transcripts of the public hearings from 

Arlington, VA, Denver, CO, Dallas TX, Charlotte, NC, Chicago, IL, Pittsburgh, PA, Louisville, 

KY, and Knoxville, TN are available on EPA’s Coal Combustion Residuals website.

Support for Subtitle D

A large proportion of the commenters at the public hearings supported regulation of CCR

under the subtitle D option. Many commenters, including beneficial users of coal ash, electric 

utility companies, labor unions, trade associations, State governments, and others, argued that:

 CCRs are nontoxic and nonhazardous; 

 in the past (most recently in the 2000 Bevill determination), EPA stated that coal ash did 

not warrant regulation as a hazardous waste and no new scientific information supports a 

different conclusion now;

 regulation under subtitle D is fully protective of human health and the environment;

 regulation under subtitle D can be more easily tailored to individual circumstances in 

each State; 

 beneficial use of CCRs such as fly ash and boiler slag saves landfill space, reduces the 

use of raw materials, and reduces greenhouse gas emissions from producing materials 

such as cement for concrete; 

 beneficial use of FGD gypsum provides soil nutrients and helps reduce soil erosion; and

 many States and Members of Congress support a nonhazardous waste designation for 

CCRs.

The commenters suggested that the requirements for location standards, liners, monitoring,

and post-closure care under proposed subtitle D option would be an effective means of ensuring 
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safe disposal of CCR, They warned that EPA should not overreact to the spill at TVA’s 

Kingston, TN plant, which was the result of a disposal problem, not a problem with the material 

itself. 

Many of these commenters opposed regulation under Subtitle C because the program would 

impose unnecessary requirements and costs on coal-fired facilities, threaten jobs, increase 

electricity rates, require additional hazardous waste landfills, and have a significant adverse 

effect on small businesses in the recycling and beneficial use industry. For example, because of 

the increased expense of handling hazardous wastes, producers of coal ash would be reluctant to 

continue providing it to concrete manufacturers, and concrete would become more expensive and 

less durable. Commenters also provided examples from their personal experience of CCR 

products being stigmatized and uncertainty about potential liability for product users under the 

Subtitle C approach. Some beneficial users stated that they have lost customers because of a fear 

liability caused by the proliferation of news coverage referring to coal ash as a hazardous or toxic 

material, and other customers have banned the use of fly ash until EPA finalizes this rule. 

Furthermore, commenters warned that the stigma prevents development of innovative usage of 

CCRs.

According to the commenters, the subtitle D and subtitle C approaches have the same 

engineering controls and would be expected to provide the same increased level of protection, so 

the quicker and lower cost approach under subtitle D, which supports beneficial use, should be 

adopted. This quicker implementation of the rule would help remove uncertainty and confusion. 

Several commenters who work in the coal ash recycling industry expressed the view that subtitle 

C would eliminate one of the nation’s most successful recycling programs.

Support for Subtitle C

Many large and small environmental and public health advocacy groups, their individual 

members, and other commenters supported regulation of CCRs under subtitle C. The 

commenters asserted that:

 effective coal ash regulations must require basic protections such as composite liners, 

runoff controls, groundwater monitoring, regular inspections, and financial assurance 

that companies pay to clean up what they pollute;

 federally enforceable regulations are needed because States have failed to adopt and 

enforce safeguards;
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 current management practices vary from State to State and coal ash is sometimes 

transported to States where dumping is less strongly regulated;

 disproportionately poor communities are often at risk from high-hazard dams and 

leaking dumps;

 the growing number of proven and potential damage cases shows that coal ash is a threat 

to human health and the environment;

 for the health of communities located near coal ash disposal sites, EPA should use the 

strictest regulatory framework at its disposal;

 Subtitle C is expected to achieve far greater compliance and requires a cradle-to-grave 

approach throughout the nation, which is lacking under Subtitle D;

 regulation under subtitle C will increase disposal costs and thus provide an incentive for 

greater recycling; and

 the subtitle C option should reduce future cleanup costs and healthcare costs.

Commenters argued that the threat to public health from coal ash is serious and widespread. 

They reasoned that CCR is becoming increasingly hazardous as toxicants such as arsenic and 

selenium become part of the waste streams and adversely affect drinking water supplies and fish 

populations. Commenters suggested that coal ash waste also contains lead, mercury, and other 

toxic heavy metals that represent health hazards, particularly when there is simultaneous 

exposure to multiple toxicants. Commenters familiar with conditions in individual States 

expressed concern about contamination from particular disposal sites and the lack of effective 

State monitoring programs.

Commenters remarked that the subtitle D option merely establishes unenforceable and 

optional suggestions for regulation. They warned that subtitle D would allow many coal ash 

dumps and waste ponds to go on uncleaned. The commenters favored subtitle C because it is 

federally enforceable. They argued that subtitle D is only enforceable by State or citizen suits, 

but State enforcement has been spotty or limited by State law and citizens often lack the 

resources to fight wealthy corporations.
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Beneficial use

A large number of the commenters at the public hearings expressed an opinion about 

beneficial use of CCR. Many of these commenters, including trade associations, small beneficial 

user entities, and electric utility companies, supported CCR beneficial use and stated that:

 coal ash helps produce concrete for transportation improvement and other construction 

projects, saves money, reduces greenhouse gas emissions by replacing Portland cement, 

and increases the strength and durability of the concrete;

 coal ash used for backfill and mine reclamation has not caused water quality degradation;

 CCRs are also used in the enhancement of engineering properties of soils, in the 

production of gypsum wallboard, and in the manufacture of paving stones, and millions 

of homes and other buildings contain materials made from recycled CCRs;

 beneficial use of CCRs contributes billions of dollars a year to the U.S. economy and 

greatly reduces the amount of waste materials sent to landfills; and

 keeping the Bevill exemption in place creates incentives for beneficial use.

A few commenters addressing beneficial use were concerned about unencapsulated uses of 

CCRs on land and favored regulation under subtitle C. Most commenters, however, did not agree 

that such uses should be regulated under subtitle C.

A few commenters supported the suggestion in the proposal that beneficial use might expand 

with subtitle C listing, but many commenters warned that beneficial use would diminish. The 

latter group expressed their concern that:

 placing CCRs under subtitle C would greatly set back, if not destroy altogether, 

beneficial use efforts;

 regulation under subtitle C would harm one of our oldest and best recycling industries;

 the economic fallout if fly ash is considered a hazardous waste would include the loss of 

jobs, higher utility costs, and increasing landfill size;

 businesses are already feeling the chilling effect of a potential hazardous labeling on their 

ability to reuse CCR;

 some people claim that making CCR a hazardous waste would actually increase the 

beneficial use program, but all ash marketing groups at the hearings disagree, and they 

are strongly opposed to a subtitle C designation;
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 customers would be confused and concerned about purchasing products that are seen to 

be essentially the same as a subtitle C hazardous waste, even with a “special waste” 

designation; and

 even if beneficially used CCRs would be exempted, the threat of legal liability would 

affect utility companies, concrete producers, and the user community.

Stigma

Many commenters at the public hearings responded to EPA’s request for instances where 

“stigma” has adversely affected beneficial use of CCR. Companies that market products 

made from CCR said they have already felt a negative impact, simply with EPA’s decision to 

consider the issue. For example:

 potential clients for fly ash bricks have expressed concern that the public may think 

the bricks are unsafe;

 several customers who use concrete have moved away fly ash because of liability 

concerns;

 some suppliers have suspended operation of their sites until EPA issues a final ruling 

and CCR is not classified as hazardous waste;

 some electric utility companies have delayed or cancelled beneficial use projects 

because of the uncertainty created by EPA’s proposed rule;

 research into new beneficial uses has stalled, as well as investment and job growth in 

the industry;

 some commenters have spoken to their customers who are involved in recycling, and 

the customers have said that a subtitle C ruling would be extremely detrimental to 

continued recycling;

 companies are removing coal ash from their manufacturing processes just because of 

the public debate and the potential EPA ruling;

 advertising materials from a concrete block producer (who was apparently concerned 

about liability) warrants all concrete masonry units to be free of any coal ash, which 

is under investigation by EPA to be classified as hazardous waste; and

 the Los Angeles Unified School District has stopped using fly ash in all construction 

projects until EPA confirms fly ash to be nonhazardous. 
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One commenter concluded that at the public hearings EPA has heard from hundreds 

of people involved in the recycling of coal ash, and they have unanimously agreed that 

designating coal ash as hazardous waste would create a stigma that ruins recycling efforts 

in this country and abroad. According to this commenter, the few speakers who pointed 

to other hazardous materials that have increased their recycling are using examples of 

materials that are reprocessed before they are reused. Recycled coal ash, however, is the 

same as coal ash that is disposed, and users would conclude that if coal ash is hazardous 

when disposed, then it must be hazardous when reused. In addition, coal ash competes 

with alternative products, and some manufacturers of competitive products are already 

using the prospect of a hazardous waste designation for coal ash to attempt to gain market 

share with users. These competitors are touting their products as nonhazardous.

Damage cases

A smaller number of commenters addressed reports of damage cases, and they 

disagreed about the significance of such reports. Regarding the TVA Kingston ash spill, a 

few commenters who opposed regulation under subtitle C suggested that the spill was a 

dam safety issue, not a product issue. They cited Tennessee Department of Health 

findings that no harm to the community’s health is expected from touching the coal ash 

and no evidence was found for groundwater contamination by coal ash. One commenter 

suggested that if CCR is regulated under subtitle C, then larger fill structures will be 

needed and the risk of a large ash spill may actually increase.

Other commenters, however, argued that damage cases are substantial and 

increasing. They asserted that coal ash contains multiple toxins, that drinking water wells 

have been contaminated by CCR, that State requirements are inadequate, and that public 

health would be better protected under Subtitle C. They cited data from the TVA 

Kingston ash spill which showed that the spill sludge contained high levels of arsenic and 

other contaminants.

Minefilling

Only a few commenters addressed CCR minefills. Representatives from mining 

associations and coal companies supported deferring CCR regulation to the Department 

of the Interior and requested that EPA make it clear in the preamble and final regulatory 

text that placement of CCRs at underground and surface coal mines is excluded from the 
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rule’s requirements. Advocacy groups, however, urged that minefills should be regulated 

as stringently as other CCR disposal sites.

The reader of this document is referred to the preamble discussion which 

addresses these public hearing comments. In particular, Unit IV of the preamble

discusses the Agency’s decision to defer its Bevill Determination and to issue technical 

requirements under subtitle D of RCRA. Unit V discusses the regulatory approach for 

subtitle D including the statutory authorities, certifications by a qualified professional 

engineer and recordkeeping and reporting requirements to ensure transparency. Unit VI 

discusses the rationale behind the technical requirements of the rule.
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CommentWorks®Issue Report

Section 3.1.1 - Support Subtitle C proposal

Total Number of Submissions: 333

Total Number of Comments: 457

Comment Number: TRANS-ARL-0006-1

Organization1:

Commenter1:Michael Jackson

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 9.2.3

Comment Excerpt Text:

Recently, I received an e-mail from a priest who talked about illegal discharge and the leaching from a 

tanker truck. And, certainly, I believe that priest would be telling the truth. These dumping grounds are 

often in minority areas. You never see that in a rich area. We have some very wealthy counties in 

Alabama, but they picked one of the poorest areas, the Black Belt. Some areas in the Black Belt are like a 

Third World country, and you really, you can't find 10 people in that area of Uniontown that wanted that 

ash dumped there. It has one of the poorest health systems around. There's no hospital, there's no nothing. 

People talked about their water being dirty now and that type of thing, and we need help. I'm being 

bombarded now about going out to the landfill people, people that are dumping things. And as a 

prosecutor, again, I prosecute the normal criminal that you think of. But it's getting to the point where 

there needs to be stronger laws to deal with this situation. Poor people need a voice, and I've been trying 

to be that voice, but I do need help. And I'd ask EPA again to regulate this material as a hazardous waste. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0008-1

Organization1:

Commenter1:John Robertson

Commenter Type: Law Firm

Classification: Substantive

Other Sections: 4.2.1

Comment Excerpt Text:

The industries that are speaking to you to ask for regulation under Subtitle D are able to afford hundreds 

of attorneys. They are able to afford millions of dollars. The citizens in Giles County are able to afford 

me. Citizen suits are going to be very difficult under Subtitle D. They will be outgunned, they will be 

outmanned, and they will likely be done in by the war of attrition. 

We would ask for Subtitle C to cover coal combustion waste because, as Mr. McGrath had indicated, the 

way that the Cumberland Park Project is currently structured is not a beneficial use, and it's something 

that the EPA has recognized under any regulation would not be recognized as a beneficial use. 

Unfortunately, the patchwork of regulation between the states would have one state regulating the type of 

project that Giles County has as a hazardous waste dump and requiring monitoring, permitting, lining; 

whereas in our neck of the woods, you have an unlined site next to a source of drinking water for 

communities that live downriver. That's something that should not be permitted to occur. 

Response: The Agency acknowledges and appreciates the comment.
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Comment Number: TRANS-ARL-0012-1

Organization1:Sierra Club

Commenter1:Lyndsay Moseley

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

We're having this conversation today because states have failed time and again to adopt and enforce 

commonsense safeguards. In my opinion, it is abundantly clear that the only way EPA can ensure a basic 

level of protection for all communities near coal ash disposal sites is through adopting commonsense 

regulations that are federally enforceable, as outlined in the current proposals. 

The Sierra Club supports the Subtitle C proposal because it would require the phase-out of the wet storage 

ponds like the ones that failed in Tennessee, and ensure those basic protections, like liners, leachate 

collection systems, groundwater monitoring, financial assurance. Many states do not require these things. 

In my opinion, we urge EPA -- Sierra Club urges EPA to protect communities at risk from coal ash 

contamination, and in a sense this is a choice. The choice between Subtitle C and Subtitle D is a choice 

between protecting and neglecting citizens across the country

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0021-1

Organization1:Anne Arundel County

Commenter1:John Leopold

Commenter Type: Local Government

Classification: Substantive

Other Sections: 6.1.1 4.1.1

Comment Excerpt Text:

SPEAKER NO. 1: Good morning. I am here this morning speaking on behalf of County Executive John 

Leopold from Anne Arundel County, Maryland. His testimony: 

"I strongly support the proposed rule to regulate the management and disposal of coal ash and coal 

combustion residuals generated by electric utilities and independent power producers. I further support 

Options C and D under the Resource Conservation and Recovery Act to address human health concerns 

and structural integrity issues associated with coal ash impoundments and landfills. 

"The disposal of coal ash and coal combustion residuals poses a serious threat to the public health and the 

environment. Coal combustion residuals generated by electric utilities and independent power producers 

contain heavy metals that pose a serious health risk and can adversely affect ground and drinking water 

supplies. 

"An investigation in Anne Arundel County, Maryland, in 2007, identified the presence of heavy metals in 

groundwater that resulted from the disposal of coal ash and coal combustion residuals at a sand and gravel 

surface mine. Arsenic, cadmium, chromium, aluminum, thallium, and beryllium were identified in 

groundwater and directly affected off-site private wells and drinking water supplies. 

"The disposal of coal combustion residuals caused significant public health and environmental concerns 

in Anne Arundel County, Maryland, ranging from contamination of groundwater, nuisances from 

airborne dust, and adverse effects on private drinking water supplies. In 2007, 2008, and again in 2009, 

the county executive secured County Council approval of legislation he proposed to ban the disposal of 

coal ash and other coal combustion residuals in Anne Arundel County, Maryland. He continues to support 

this legislation and has great concern for the management and disposal of this material at landfills and 

service impoundments on a national level. 

"He strongly supports the development of a state and federal permit program as proposed under Subtitle C 

which provides the minimum level of protection necessarily to protect public health and the environment. 
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The classification of coal ash and coal combustion residuals as a special waste under the Resource 

Conservation and Recovery Act will ensure the necessary regulatory oversight will be in place to 

adequately address the storage, manifest, transportation, and disposal of coal ash and coal combustion 

residuals. This option also requires the installation of liners and groundwater monitoring at new landfills 

and provides the greatest benefit to protect human health, the environment, and our limited resources. 

"The requirements proposed in Option D provide additional measures to protect public health and the 

environment through retrofitting existing surface impoundments with liners and through improvements in 

the structural integrity of existing surface impoundments. These measures will further reduce the risk of 

surface impoundment failure and provide the added protection to human health, surface and drinking 

water supplies, and our limited water resources." 

The county executive wants me to note that there is a flaw with the proposed rule in that it does not 

address exposure to fly ash from fugitive dust. Maryland is among the 42 states --

MR. DELLINGER: Your time limit is up. 

SPEAKER NO. 1: Can I finish? I have just a little bit. 

MR. DELLINGER: Real quick. 

SPEAKER NO. 1: Pardon me? 

MR. DELLINGER: Real quick. 

SPEAKER NO. 1: Okay. As this matter is of great urgency to the citizens of Anne Arundel County, the 

county executive strongly supports options Subtitle C and D under the proposed rule.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0026-2

Organization1:Friends of the Earth

Commenter1:Erich Pica

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

It's time the EPA begin regulating coal ash as a toxic pollutant. Coal ash must be regulated under Subtitle 

C of the Resource Conservation Recovery Act as a special waste with all the safeguards that apply. 

Federally enforceable standards must ensure coal ash dumps and waste ponds have all the protections 

presently required at household wasteland fills, including sold waste permits, liners, monitoring systems, 

collection systems, corrective actions, financial assurances, fugitive dust suppression, and transport 

controls. Only Subtitle C requires this. 

For the health of communities in the environment located near these 431 coal ash disposal sites, it's 

imperative that EPA use the strictest regulatory framework at its disposal, and requiring Subtitle C of the 

Resource Conservation Recovery Act is this regulatory framework. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0028-2

Organization1:Religious Society of Friends - Earthcare Witness of the Americas

Commenter1:Barbara Williamson

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Comment Excerpt Text:

The EPA admits that lack of monitoring and -- has meant that there are some sites that are not monitored. 
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And I think none of us should forget Pines, Indiana, where using coal ash for road projects contaminated 

the drinking wells in that town and turned that town into a Superfund site. 

The public needs to be involved in a permitting process for the siting and operation of coal ash disposal 

facilities. In addition, regulation -- regulatory mandates to assure that facilities comply with standards 

requirements that would prevent pollution before it occurs rather than undertaking expensive cleanups 

after major damage has occurred. 

In addition, we need for -- and I have a list of things that we would like to see -- states to adopt and 

implement rules at the same level as the EPA; coal ash be treated as a hazardous waste; there to be 

requirements for every stage of handling coal ash from generation to post- closure, including management 

and storage with consistent minimum remediation standards. 

But we'd like for the state and EPA monitoring all enforced, cleanup of all releases for active and closed 

landfills and ponds facilities, the whole facility, each individual facility. 

We would like bonding that is large enough to cover all the cost of closing facilities, conducting cleanup, 

and compensate any injured -- or injury to third- party -- third-person parties, basic standards for new 

landfills including liners, water runoff controls, groundwater monitoring, leachate collection systems, 

fugitive dust controls, closure, and past closure care -- post-closure care.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0031-1

Organization1:

Commenter1:Steve Tuttle

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 6.1.2

Comment Excerpt Text:

Five hundred years ago, the land, air, and water were so much cleaner. Why do we as humans have to 

destroy what is around us? Coal ash dumps similar to Mirant's Potomac River Power Plant, leach arsenic 

and lead and mercury into our water. In Maryland, three major coal ash leak sites belong to the Mirant 

Corporation. Why don't people who make a mess clean it up? Coal companies have done so much 

damage to the environment and no one holds them accountable. In the past, they have polluted the water 

and destroyed mountains. 

I support Subtitle C and -- because that would give you, the EPA, the ability to enforce uniform federal 

standards and coal ash could then be regulated as a hazardous waste that it is. It is my job to take care of 

my health and it is cheaper to stay healthy. But I have to breathe the air here. I wish it was cleaner. We 

must do a better job and not allow heavy metals to leach into our water supplies. It is so expensive to try 

to clean that up. 

The business model for Mirant appears to be create energy from coal by spending the least amount of 

money. The industry standard should be who can do the least amount of damage to the environment and 

make energy while they clean up the mess they make. Please help the coal industry learn to be responsible 

so we all can live in a less polluted area.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0032-1

Organization1:

Commenter1:Roger Diedrich

Commenter Type: Private Citizen

Classification: Substantive
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Other Sections: 10.5.1.3

Comment Excerpt Text:

I would urge you to regulate coal ash under Subtitle C, that is as a toxic substance, because that will 

provide the framework to cover several important issues. These include adequate requirements for liners, 

groundwater monitoring, testing, and post-closure care. I was engaged when we had the debate over how 

you would regulate incinerator ash. And ultimately, it came down to what a proven testing regime would 

show. In some cases that meant that ash had to be handled as a hazardous material. 

The regulation should be science-based, and I am confident the science will show that the coal ash 

contains many highly toxic substances at levels that are a danger to human health and the environment. 

I'm also concerned about the prospect of defining beneficial uses which the regulations might allow. In 

particular, one use that seems attractive for coal generators is to dispose them in roadbeds. This is a 

sought-after use because, number one, a lot of ash can be disposed that way. And, number two, a part of 

the process, that is the cover, would be covered under another budget. 

Unfortunately, we know that lately many states are broke, and so they cannot maintain roads and perhaps 

in rural areas are removing the paving when it deteriorates. What if such a road had been built with the 

coal ash and now the toxic substances were to disperse into the general environment? 

We have seen too many examples recently where a lax regulatory environment has had serious 

consequences, and so I urge you to be conservative, which means to impose restrictive controls on coal 

ash disposal. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0033-1

Organization1:Maryland Energy Report

Commenter1:John Howley

Commenter Type: Media

Classification: Substantive

Comment Excerpt Text:

Meanwhile, Maryland has new regulations on the disposal of toxic CCRs which took effect at the end of 

2008. The new regulations require annual reports from CCR generators. These reports could provide EPA 

with a useful case study to inform projections of the ratios of CCRs to tons of coal burn. 

According to MDE, in 2008, about 2 million tons of coal ash was generated from Maryland plants. 

Maryland projects that in 2010, when scrubbers are fully operational, an additional 2.5 million tons of 

scrubber sludge will be generated each year. This suggests that the nationwide increase in CCRs resulting 

from better air quality controls may be even faster than EPA projects. The MDE report throws light on 

another issue EPA should take note of: Interstate transport of CCRs. Generator reports for 2009 show that 

more than half of the CCRs generated were transported out of state for disposal going to landfills, 

minefills, as well as manufacturing plants. 

Please note that these figures do not yet include any scrub or sludge. Unless new permitted landfills or 

processing capacity is put in place quickly, it is likely that much of the additional 2.5 million tons of 

scrubber sludge predicted by MDE will also be exported from the state. One county in Maryland has 

completely banned the disposal of CCRs. In the absence of strong nationwide regulatory structure, it is 

reasonable to assume that as individual states improve their own regulations, toxic coal combustion waste 

may flow across state lines in increasing amounts, as the TVA-Kingston disaster shows, where wastes 

were exported from Tennessee to Alabama. 

While Maryland's rate of export may or may not be representative, it should serve as a reminder that toxic 

CCRs do move across state lines and will likely do so in higher volume in years to come. 

The three factors -- the growing discrepancy in the patchwork of state-level CCR regulation; a more rapid 

than expected increase in toxic CCRs; and the possibility of growing interstate movement -- make it 
16

imperative that EPA put in place an effective federal framework as quickly as possible. Each day of 

further delay by EPA simply increases the health and economic burden on our children and grandchildren 

who will live with the consequences of this generation's inaction. Promulgation of Subtitle C's special 

waste option is a long overdue first step towards protecting the health of Americans from the hazards of 

toxic CCRs

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0034-1

Organization1:Physicians for Social Responsibility

Commenter1:Alan Lockwood

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 8.5

Comment Excerpt Text:

Each year coal-fired utilities create and dispose of over 120 million tons of coal combustion residues. 

Ironically, as air pollution control technologies improve, this huge waste stream becomes increasingly 

hazardous as toxicants such as arsenic, selenium, and many others that had been released into the air and 

become a part of the CCR waste stream. If CCRs stayed put, the problem we face would be much simpler. 

However, many of these toxicants leach into drinking water supplies, our waterways, into the air as dust, 

et cetera, and harm the health of those who are exposed. Several disposal sites are so toxic they have been 

added to the national priorities list. 

Time does not permit me to present the details of this complex problem, so I will focus my comments on 

arsenic and selenium, two critical constituents of CCR. Arsenic is a known carcinogen that causes cancers 

of the skin, lung, and urinary bladder. Arsenic and CCR placed in surface impoundments creates the 

greatest risk for the development of cancer. The cancer risk for individuals at the 50th percentile of 

exposure is increased by a factor of about 30. Unlined and clay-lined disposal sites have lower but still 

appreciable risks. 

Leaching of arsenic and other CCR toxins has forced the shutdown of water supplies and towns such as 

the town of Pines, Indiana. Exposure to arsenic also increases the risk of developing Type 2 diabetes 

mellitus. As many of you know, Americans are experiencing an epidemic of this largely preventable, 

devastating, and expensive disease. 

CCR also contains significant amounts of selenium. The EPA's own analysis has demonstrated clearly 

that selenium from CCR disposal sites has devastated fish populations and resulted in fish consumption 

advisories. For example, Devil's Lick, North Carolina, selenium eliminated 16 out of 20 species of fish 

and led the Fish Consumption Advisory that was in effect for 7 years. 

These are but a few of the numerous, well- studied, and proven instances of CCR damages. Other 

examples include the highly publicized collapse of a dam that contained CCR in Kingston, Tennessee, 

that led to the discharge of about 1 billion gallons of toxic slurry into adjacent waterways. 

In 2009, EPA's sponsored survey showed that there were at least 50 CCR storage ponds that posed a 

significant high risk for failure. Seventy-five of all of the impoundments were behind dams that were 

more than 50 feet high, thus too many CCR repositories have the potential to cause additional, perhaps 

catastrophic, effects on health and the environment. 

On behalf of our members and all Americans, PSR urges the EPA to adopt the measures for regulating 

CCR described in Subtitle C so that the Agency can best fulfill its mission to protect health and the 

environment

Response: The Agency acknowledges and appreciates the comment.
17

Comment Number: TRANS-ARL-0037-4

Organization1:

Commenter1:Rebecca Kolberg

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I support listing coal ash as a hazardous waste subject to regulation under Subtitle C of the Resource 

Conservation and Recovery Act. The reasons I call on the EPA to support such federal regulation are 

threefold: The health of the American public, the welfare of wildlife, and environmental justice. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0039-1

Organization1:Izaak Walton League of America

Commenter1:Scott Kavarovics

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 6.1.2

Comment Excerpt Text:

With our members, conserving and protecting water resources is of utmost importance. The league 

supports a strong and appropriate solution to the widespread pollution caused by inadequate storage of 

coal ash waste. Specifically, the league urges EPA to issue a final rule that regulates coal ash as special 

waste under Subtitle C of the Resource Conservation and Recovery Act. 

Water quality is especially at risk from unregulated coal ash storage and disposal. As others have alluded 

to, most plants are close to fresh water resources because of the vast amount of water they use, and then 

on- site storage of coal ash in unlined ponds and on the surface poses direct and serious threats to surface 

and groundwater resources by their close proximity to these waters. 

Coal ash contains a host of toxic substances and heavy metals. And I'll highlight just one from a fish and 

wildlife perspective: Selenium easily moves from coal waste into the water. It becomes more 

concentrated in the aquatic food chain. It can render fish unsafe to eat and ultimately cause reproductive 

failure in fish populations. And birds that eat fish containing high levels of selenium may also experience 

reproductive failure. 

Strong and effective federal regulations are necessary because a majority of states do not require 

safeguards at most coal ash landfills and ponds. Under the Subtitle C option, which the league supports, 

all states would set equivalent standards for the generation, storage, transportation, and disposal of coal 

waste; require permits for disposal facilities; and phase out waste ponds. Proper disposal should require 

composite liners, leachate collection systems, adequate groundwater monitoring, and corrective action, all 

of which are necessary to afford more protection to the public health, fish, and wildlife. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0054-2

Organization1:Environmental Integrity Project

Commenter1:Lisa Widawsky

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

When you are deciding whether to regulate coal ash under the federally enforceable Subtitle C or the 
18

suggested guideline that is Subtitle D, please think about the 30-year-old man who bought his first house 

and had begun to make costly improvements when his drinking well, about 1,000 yards from First 

Energy's unlined Little Blue Run impoundment, this is his mother in the photo and she'll be speaking 

later, was measured to have arsenic above the maximum contaminate level in his well. Are his hardearned savings and life worth more than the cost that it would have taken for First Energy to put their ash 

in a lined landfill? 

In addition, I also want you to think when you're regulating about the little boy whose family just set up a 

pool in their back yard to congratulate him on doing well in kindergarten. The boy's family is African 

American and his mother just returned from serving in Iraq. The family has to replace the filter in the pool 

water every single day because of the ash that comes in from unlined trucks. 

These are just two people among many of thousands plagued by mismanaged coal ash. When EPA is 

deciding how to regulate coal ash, I want you to remember that the $20.3 billion total that it will cost this 

industry is a de minimis cost to the coal industry and that it is expressly lower than Subtitle D costs 

because EPA expects noncompliance with Subtitle D

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0056-2

Organization1:Physicians for Social Responsibility

Commenter1:Barbara Gottlieb

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

For that reason, Physicians for Social Responsibility calls on the EPA to discharge its duty to protect the 

environment by applying the strictest possible levels of control over coal ash disposal. We strongly 

support Subtitle C as the only option currently on the table that would adequately protect human health. 

Based on the needs for public health, we call for a federal regulation of coal ash disposal, phase-out of 

wet storage, and limiting the recycling of coal ash to uses where coal ash is not exposed to water and 

where the ash is chemically bound. Unencapsulated uses and minefilling must end

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0060-1

Organization1:

Commenter1:Mary Fox

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 8.2

Comment Excerpt Text:

I would like to make four points. Coal ash contains multiple toxic constituents that can appear as mixtures 

in the ambient environment. Enforceable standards are needed for disposal in sand and gravel pits, 

quarries and landfills. We need to know the locations of disposal pits, past and present. Risk assessments 

to date have likely underestimated health risks. The latest reviews show that arsenic cancer risks are 

higher than previously thought and noncancer risks are under estimated if mixture exposures are not 

evaluated. 

Regarding multiple contaminants, the proposed rule summarizes the Gambrills damages case in Anne 

Arundel County, Maryland where coal combustion waste was used to reclaim a former sand pit. Coal 

combustion waste constituents reached the drinking water wells of nearby residents. In total, 34 wells 

were contaminated with concentrations of aluminum, arsenic, beryllium, cadmium, lead, manganese, and 
19

thallium above drinking water standards. I would like to emphasize that several of those wells were 

contaminated with multiple coal ash constituents demonstrating the importance of assessing combinations 

of coal ash contaminants and vulnerabilities of unlined disposal areas. Three of the commonly used coal 

combustion waste management practices, landfill, surface impoundment or use and reclamation in mines 

result in localized disposal. We will be unable to fully assess or correct environmental or public health 

risks unless disposal locations are known. 

To date, cancerous assessments of arsenic exposure have been based on studies of skin cancer. 

Epidemiological evidence on arsenic ingestion shows greater risks of several internal organ cancers such 

as bladder, kidney, lung, liver and prostate so that estimates using the skin cancer data will underestimate 

total cancer risks from arsenic ingestion, and arsenic exposure is also associated with some noncancer 

outcomes including diabetes and hypertension. In conclusion, I believe my concerns would be best 

addressed and public health better protected to regulation under RCRA Subtitle C

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0073-2

Organization1:Maryland Commission on Environmental Justice and Sustainable Communities

Commenter1:Vernice Miller Travis

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 6.1.2

Comment Excerpt Text:

Lastly, water quality. Few coal combustion waste disposal sites are subject to Clean Water Act permits 

that monitor or limit the full range of toxic metals that are discharged from coal combustion waste 

disposal sites. At a minimum, EPA must take basic steps to protect the off-site environment at coal 

combustion waste sites and set limits on the discharge of leachate or waste water that are based on best 

available treatment and containment standards and which are designed to protect rivers and streams. This 

is particularly important in a state like Maryland where rivers and streams empty into the ecologically 

fragile and highly threatened Chesapeake Bay. For these reasons and so many more, I support Subtitle C.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0080-1

Organization1:

Commenter1:Matt Durning

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

The situation in Perry County is a prime example of why the U.S. is in such desperate need of strong 

federal regulation on coal ash. As a result of the absence of federally enforceable protections, the 

Alabama Department of Environmental Management or ADEM, local Perry County politicians, and 

landfill owners and operators in Uniontown were able to secure this contract to bring the waste from 

Kingston and dispose of more than 3 million tons of coal ash in Perry County at a landfill that was 

designed only for household garbage. The only way to protect the residents of Perry County and other 

communities across this country is to be regulating coal ash disposal under Subtitle C of the Resource 

Conservation and Recovery Act.

Response: The Agency acknowledges and appreciates the comment.
20

Comment Number: TRANS-ARL-0082-1

Organization1:

Commenter1:Jessica Miller

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.5.1

Comment Excerpt Text:

I am supporting Subtitle C with the exception that the enforcement date should be changed to be taking 

effect 6 months after the ruling, if not sooner, since time is of the essence as the folks who have talked 

about their experiences and negative health impacts of this on their lives and their families. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0084-1

Organization1:

Commenter1:Bryce Payne

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I hope you put ash under the Subtitle C designation. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0093-2

Organization1:Greenpeace

Commenter1:Brian Johnson

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.1.2

Comment Excerpt Text:

That's why I urge EPA to regulate coal ash under Subtitle C of the Resource Conservation and Recovery 

Act, giving coal ash the special waste designation it deserves and putting in place requirements that will 

help keep people like myself out of harm's way. 

Subtitle C is backed by the EPA's own science, which shows that some coal ashes leach high levels of 

heavy metals. At the same time, Subtitle C will incentivize ash recycling by increasing disposal costs. 

Subtitle D, on the other hand, is not an acceptable plan. It is amazing to me that the EPA would even 

consider Subtitle D. Subtitle D actually treats coal ash waste as if it were nonhazardous and allows 

industry to slip under weak regulations. Moreover, the EPA itself acknowledges that Subtitle D would 

allow many coal ash dump and waste ponds to go on uncleaned. 

With Subtitle D in place can we really expect that the disaster that struck Tennessee in 2008 will not 

happen again? What happened in Tennessee is not limited to that region, but represents an issue of 

national scale. Coal ash dumps exist in nearly every state, including Virginia and Maryland, and coal ash 

is produced at Mirant's Potomac River Generating Station just 10 minutes down the road from my town, 

Alexandria. 
21

Please, I urge you, regulate coal ash under Subtitle C and help prevent disasters like what happened in 

Tennessee from happening again.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0103-1

Organization1:Environmental Defense Fund

Commenter1:Bill Petty

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

EDF believes that CCRs should be regulated as special waste under Subtitle C. According to EPA's own 

scientific risk assessment, CCRs meet the criteria necessary to list under Subtitle C due to their toxicity, 

the potential for the hazardous constituents to migrate or bioaccumulate, and plausible mismanagement of 

the waste, as well as cases in which damage to human health or the environment has been proven, such as 

the Kingston, Tennessee, disaster. 

In addition to established risk, CCRs pose other threats that have not been fully explored by the EPA. For 

materials of this character, Subtitle C is far more appropriate than Subtitle D, because it is expected to 

achieve far greater compliance and because it includes a comprehensive cradle-to-grave approach that is 

lacking under Subtitle D. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0107-2

Organization1:EarthJustice

Commenter1:Emily Greenlee

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Strict federal guidelines are needed to protect the low-income populations living near Arrowhead and 

other ash impoundments, particularly because Alabama is one of 15 states that has explicitly stated that it 

will not adopt stricter state regulations if EPA chooses to regulate ash under Subtitle D. As the TVA spill 

and dozens of other damage cases have demonstrated, state regulations of coal ash are often insufficiently 

protective of human health and the environment. Only federally enforceable Subtitle C regulations can 

fully protect human health and the environment from coal ash in low-income communities and throughout 

the United States

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0109-2

Organization1:Sierra Club

Commenter1:Drew Ball

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Classification of coal ash under Subtitle C would provide basic environmental and public health 
22

safeguards backed up with enforcement and financial accountability. It is far more protective than the 

status quo option under Subtitle D and covers coal ash from cradle to grave. Under the strong option, coal 

ash sites would have to be permitted. It would be required to take basic safety precautions, install liners, 

water runoff controls, groundwater monitoring, and dust controls -- much of which is lacking in North 

Carolina. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0109-3

Organization1:Sierra Club

Commenter1:Drew Ball

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

I ask the EPA to please protect our communities, our families, and our environment by classifying coal 

ash under Section C of the Resources Conservation Recovery Act.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0110-1

Organization1:EarthJustice

Commenter1:Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 8.2

Comment Excerpt Text:

The decision facing EPA is of monumental importance, but it is not unprecedented. There are clear, legal 

mandates for this rulemaking that the agency cannot ignore. The proposed regulation of coal ash as a 

special waste under Subtitle C, is dictated by the specific mandates of the Bevill Amendment, the 

regulatory definition of hazardous waste, and EPA's guidance concerning reduction of cancer risk. A 

special waste designation is the only option consistent with Administrator Jackson's pledge to rely on 

"sound science and risk-based criteria protective of human health and the environment." 

Many who oppose Subtitle C regulations want you to look back to the days when the TVA dam still 

stood, when we knew nothing of 70 additional damage cases, and when the TCLP test was not deemed 

irrelevant. They would have you ignore your new leach test that reveal arsenic leaching from ash at many 

times the threshold for hazardous waste. They would have you disregard state data documenting 

contaminated water at dozens of sites across the nation. They would prefer you forget the conclusions of 

the National Academy of Sciences, the EPA Science Advisory Board, and your own peer-reviewed risk 

assessment. Lastly, they would have you disregard the gross deficiencies of an existing state law, which 

allow some of the largest coal states to avoid entirely the regulation of coal ash. 

In short, you are asked to base this critical rule on facts frozen in the last century. This course is as illegal 

as it is foolhardy. We trust that you will not join them in their way-back machine. This law requires your 

decision be based on 21st century data and science. Further, the current reality of coal ash 

mismanagement by states across the nation requires a rural design to resolve this problem

Response: The Agency acknowledges and appreciates the comment.
23

Comment Number: TRANS-ARL-0120-1

Organization1:EarthJustice

Commenter1:Emily Enderle

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 8.2

Comment Excerpt Text:

As you've noticed, this is of high importance to a number of the large environmental and public health 

groups in the United States. I for example am here on behalf of the 220,000 plus members and supporters 

of Earthjustice to let you know that this is certainly one of our high-priority rules. 

You are right now in the midst of looking at public comments, looking at technical data and considering 

two particular options on how to deal with the disposal of coal ash. For us we would really appreciate and 

the public would really appreciate the scientifically defensible option which is Subtitle C under the 

Resource Conservation and Recovery Act. 

It's only under that particular subtitle that we would be able to ensure that communities are going to be 

protected from toxic coal ash. We've seen time and time again that the states, when left to operate under 

the status quo, that there are damage cases throughout the country. You have identified dozens of 

damages cases yourselves. We have certainly worked on several reports in the past identifying more 

damage reports looking into using data that's available at the state and local level. I think that's one 

example and a lot of those are related to leaching. 

Then we have cases like the Kingston spill. That's an example of catastrophic failure. I am from a small 

town in rural Ohio. We are certainly a coal state. We are actually sixth, I think, in the country in terms of 

coal use and we generate 6.9 million tons per year. In Ohio we have six of the high-hazard dams, which 

means if they were to fail one or more people would likely die because of that failure. You know that 

there are a lot of structural integrity issues and you've collected the data. Personally I'm scared for my 

family, for citizens of Ohio as well as citizens across the country and there are hundreds of other ponds 

that haven't even been quantified in terms of structural integrity. So the catastrophic failure, as well as 

leachability are of high concern. 

Your own data shows 2,000 times the acceptable risk of arsenic is a possibility in terms of the leach test. 

You have the science. I mainly wanted to let you know that you have the public's support and you have 

the scientific support. We hope that the rule that you decide to promulgate is ultimately that one that you 

put forth to OMB and that the politically more attractive yet the less-protective rule is the one that's left 

behind

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0141-1

Organization1:Sierra Club

Commenter1:Leslie Fields

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

The Subtitle C option would effectively regulate coal ash as a hazardous waste with the associated 

safeguards for storage, handling, transport and disposal. The Sierra Policy has had a board-approved 

policy on hazardous management since 1984 and it was revived in 1987 and 1989 that states in part that 

regulatory programs should be specific and enforceable when possible, and incentives should be 

encouraged to the best management practices. Government responsibilities include oversight of hazardous 

waste management systems. Agencies involved must be well managed and capable of coordinating the 

highly complex system involving different levels of government, the private sector, and the public. 
24

I will also submit my comments in the record and go on to say that these procedures for handling such 

wastes by generators, recyclers, transporters, treaters, and disposal should include also protection of 

workers, should include rules governing facility siting, operation, and closure, effective enforcement of 

the laws and permit conditions and conscientious inspections in order to ensure proper operation and 

accurate reporting. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0146-1

Organization1:League of Conservation Voters

Commenter1:Sara Chieffo

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 8.2

Comment Excerpt Text:

I'm here to encourage the EPA to adopt strong federally enforceable coal ash regulations. U.S. coal- fired 

power plants generate more than 130 million tons of toxic coal ash annually. Coal ash and other 

combustion wastes are not currently subject to federal regulation and most state laws are either far too 

weak or nonexistent. The dangers coal ash poses to public health and the environment have been known 

for a long time. This coal combustion byproduct is known to contain harmful metals and chemicals like 

arsenic, lead, and mercury that lead to increased rates of cancer, birth defects, learning disabilities, and 

other illnesses. 

Currently much of the coal ash waste is stored in ponds, landfills, and abandoned mines that do not have 

adequate safeguards. Whether through large-scale and highly visible disasters like the massive coal ash 

spill in Tennessee in 2008, or the less-visible contamination of groundwater, communities, public health, 

and the environment are unnecessarily being threatened. In fact, a report released just last week by the 

Environmental Integrity Project, Earthjustice, and the Sierra Club, brings the total number of known 

contamination sites from toxic coal ash pollution to 137 sites spread across 34 states. 

LCV strongly encourages the administration to adopt the Subtitle C option that has been proposed. 

Families across the country and drinking water sources will only be protected by federally enforceable 

standards and not by guidance to states which will only perpetuate the patchwork of inadequate state 

regulations that we currently have. No community should be exposed to these health risks especially 

when safer disposal methods exist and could be readily implemented

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0004-1

Organization1:Sierra Club Beyond Coal Campaign

Commenter1:Verena Owen

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.1.2

Comment Excerpt Text:

There are two options on the table. It is clear that only the coal industry would benefit from the basically 

status quo regulations under Option D they are championing. 

That option requires none of the abovementioned safeguards. Industry will claim that ensuring such 

proper safeguards under the protective Subtitle C option of the proposed rule is a costly proposal. But, 

folks, that cost is already being paid--except it is being paid by the wrong party. It is paid by the party, the 
25

people affected by coal ash in our neighborhoods. 

Coal is a dirty business through its entire life cycle, from mining to burning to disposal. The coal has been 

shielded for years, for decades actually from the true cost of coal. It is time that they are being held 

accountable, and that means that there is an accounts payable column in their coal and for coal ash 

disposal in their books. 

The rule offers two options -- can I finish? Thanks. EPA has two options for the coal ash rule, and in this 

case D is not a passing grade and C is the top of the class.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0005-2

Organization1:Prairie Rivers Network

Commenter1:Traci Barkley

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Please, we ask you to stay true to your mission, listen to your constituents and do the right thing. Regulate 

coal ash with Subtitle C and take the first step towards turning this bad idea gone worse around.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0014-1

Organization1:Congressman Mike Quigley

Commenter1:Kimberly Walz

Commenter Type: Federal Elected Official

Classification: Substantive

Other Sections: 6.1.2 6.1.1

Comment Excerpt Text:

Colstrip, Montana is home to the second largest coal plant west of the Mississippi. One boxcar-full of 

coal is burned every five minutes. The burning of coal creates sodium, thallium, mercury, boron, 

aluminum and arsenic which is pumped out of the factory and into the air. The chemicals that aren't 

pumped into the air are caught in the factory's scrubbers and then dumped with the coal ash into giant 

settling ponds. 

These ponds are shallow artificial lakes of concentrated toxicity which leach this poison into wells and 

aquifers. This sludge flows into the surrounding towns and countryside, bubbling up against foundations 

and floorings, cracking the floor in Colstrip's local grocery store. 

Ranchers in Eastern Montana are now suing the plant for damages. Noxious water, they cite, is the only 

liquid that fills their wells and stock ponds. James Hansen, a renowned climate scientist, says Colstrip 

will cause the extinction of 400 species. 

But still, Colstrip burns on. We are poisoning our ecosystem and our animals. 

But we are also poisoning our families, our communities, our nation and our entire world. Why? Because 

there are currently no federally enforceable regulations specific to coal ash. This lack of federally 

enforceable standards is exactly what led to the disaster in Tennessee where a dam holding more than one 

billion gallons of toxic coal ash failed, destroying 300 acres, dozens of homes, killed fish and other 

wildlife, and poisoned the Emory and Clinch Rivers. 

From Tennessee to Colstrip, the story is the same. Living near an unlined coal ash waste pond and 

drinking water contaminated with arsenic can be more dangerous than smoking a pack of cigarettes a day, 

according to a risk assessment done by the EPA. People living near unlined coal ash ponds where water is 

contaminated by arsenic and ash is mixed with coal refuse, whether they're in Tennessee or in Colstrip, 
26

have an extremely high risk of cancer up to 1 in 50. This is 2,000 times greater than EPA's acceptable 

cancer risk. 

As Al Gore wrote in 2005, "it is now clear that we face a deepening global climate crisis that requires us 

to act boldly, quickly and wisely." Coal ash is a piece of the larger climate crisis, a crisis that has a hefty 

cost--the cost of carbon. 

So, as we burn coal, creating sodium, thallium, mercury, boron, aluminum and arsenic which is pumped 

out of the factor and into the air, we can continue to do that. We can blow the tops off mountains, 

allowing streams of toxicity to leach coal slurry poison into wells and aquifers. We can send tar sands 

1,700 miles across our soil. 

Or we can stop stripping our land, polluting our air and water and do what's right. The first step is to 

establish comprehensive, federally enforceable standards that protect human health, wildlife and the 

environment. Coal ash must be regulated under Subtitle C of the Resource Conservation and Recovery 

Act as special waste with all the safeguards that apply. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0026-1

Organization1:PINES Group

Commenter1:Paul Kysel

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 8.6.1

Comment Excerpt Text:

I'm here today to voice strong support for the classification of coal combustion waste as hazardous under 

RCRA Subtitle C. 

The historic ineffectiveness of RCRA Subtitle D has been clearly illustrated in the Town of Pines. The 

drinking water wells of the entire Town of Pines, an EPA "proven damage case", were poisoned by ash 

generated by the Michigan City coal-fired power plant owned and operated by Northern Indiana Public 

Service Company known as NIPSCO. Levels of boron, molybdenum, arsenic as well as a whole host of 

other heavy metals as well as contaminants including radiation well above health-based standards 

migrated from a nearby, inadequately lined landfill owned and operated by another entity, Brown, 

Incorporated, just south of Indiana Highway 520 and US Highway 20 in the Town of Pines, and from its 

use as "structural fill" over much of the town as a so- called "beneficial use" of this ash material. 

Only after a federal lawsuit was filed against NIPSCO, the only recourse available to citizens under 

Subtitle D of RCRA, did the company provide safe drinking water to some of the town (there still are a 

significant number of residents who are still dependent upon bottled drinking water) through the EPA's 

involvement. 

In April 2000, residents of the town began noticing that their well-sourced drinking water tasted unusual. 

So, they reported it to the state, Indiana Department of Environmental Management. Incredibly, IDEM 

knew for nearly 30 years that Yard 520 was leaking arsenic and other contaminants to a nearby creek. In 

addition to contaminating the groundwater of the Town of Pines, the landfill also threatens protected 

streams in the Indiana National Dunes Lakeshore area. Contaminated groundwater from Yard 520 flows 

into Brown Ditch, a creek that flows along the edge of the landfill and eventually into the National Park 

before discharging into Lake Michigan, two miles from the municipal water source that brings the water 

back to the town of the people where they lost their ability to drink safely from their wells. 

Downstream from the landfill, the creek carries high levels of boron and molybdenum. Indiana National 

Lakeshore is an especially important feeding and resting area for migrating land and water fowl. Fish, 

birds, mammals, all harmed. 

Our town's experience has clearly demonstrated a need for strict regulation of coal combustion waste as 

hazardous. We live in a time when large corporations often view environmental regulations as obstacles 
27

to greater profits and regulatory fines as the cost of doing business. Few can be trusted. We need federal 

action on this now. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0043-2

Organization1:

Commenter1:Aaron Turkewitz

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 4.2.1 4.2.4

Comment Excerpt Text:

Given this reality, it is clear to me that the EPA should and must adopt the strongest possible regulations 

to contain the toxins in coal ash. To begin with, coal ash should be regulated from cradle to grave. Many 

of the conditions in Subtitle D are inappropriate for dealing with hazardous waste. Both logic and history 

argue that it is unrealistic to expect an industry to police itself. 

Similarly, private citizen driven lawsuits, to expect private citizen driven lawsuits to be an effective 

counterbalance to industry power is unrealistic. While David and Goliath may be an appealing story, it's 

not a good model for ensuring the changes that are required to safeguard human and environmental 

health. For this reason, the regulations and the enforcement must come from the federal level. 

The current patchwork of state regulations are weak. Many states fail to require even basic safeguards 

such as adequate monitoring. State-based regulations and enforcement are also inappropriate because 

unless rules are changed, coal ash and coal ash polluted groundwater don't actually respect state 

boundaries. 

I want the environment in which I and my neighbors live to be cleaner and healthier. I want the 

environment that children inherit to be cleaner still. The EPA is the right agency to take the lead and I 

hope it will adopt provisions at least as strong and binding as those in Subtitle D with regard to coal ash. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0050-3

Organization1:Little Village Environmental Justice Organization

Commenter1:Abigail Singer

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

As long as coal ash continues to pile up at coal plants around the country, disposal will be an issue. The 

real solution to the waste problem is to move away from coal completely. It is an outdated technology that 

we know is the single biggest culprit for climate change and a host of other health problems. Please adopt 

Subtitle C.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0051-1

Organization1:Sierra Club

Commenter1:Bruce Nilles

Commenter Type: Advocacy Group

Classification: Substantive
28

Comment Excerpt Text:

For more than two decades, the industry has been very successful at saying to study it a little more. And 

indeed, for two decades EPA and a whole host of other agencies have studied the problem of coal ash. 

And every time the conclusion comes the problem is actually worse than we realized before. What are we 

waiting for? The more we wait, the bigger the problem gets because every year we are generating millions 

and millions of tons of this waste, and it is today being disposed of improperly as we know across this 

country. 

All we're saying is that there has to be a level playing field for anybody who produces hazardous waste. 

The industry, the coal industry has carved out its exemption and for two decades has been enjoying rules 

that nobody else gets to comply with. Anybody else who generates hazardous waste has to deal with it 

responsibly, and the sky did not fall once you put in place the designation of hazardous waste. 

We're not asking for anything radical. We're saying simply that you have to have a liner, you have to have 

a collection system so that the liquid that is collected is being safely disposed of. You need to monitor so 

you actually know the extent of the problem. And you need to make sure that indeed there is financial 

insurance in place so that at the end of the day if the company walks away that in fact it will get cleaned 

up. 

This Agency knows better than anyone the legacy of hazardous waste. You have spent decades cleaning 

up the mess of industrial problems under superfund for many, many years and you spend a very large 

amount of your resources cleaning up past messes. At this point, you are allowing more messes to be 

created by not putting in place Subtitle C regulations as fast as humanly possible. So, it is our next 

generation that is going to spend all this time and effort cleaning up the mess that we were not smart 

enough and quick enough and powerful enough to actually quickly get these regulations in place

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0052-1

Organization1:Will County Environmental Network

Commenter1:Mary Baskerville

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 6.2.5

Comment Excerpt Text:

We speak today in strong support of federal regulation of coal ash and point to the need for the regional 

impact to become part of the EPA review of coal ash projects. 

We speak from experience. Several of our members have had wells impacted because water draw-down 

in the region was responsible for drawing boron offsite along Brandon Road and Joliet. We worked hard 

to prevent a clean construction debris disposal proposal from being granted because the dewatering of a 

spring-fed quarry at the proposed CCDD site would have created additional draw-down of water. Water 

modeling showed it would have resulted in additional draw-down and an additional pool of ash 

contaminants offsite leading to many residential well contaminations. 

The network worked hard with the Illinois Environmental Protection Agency to have them take a forward 

position in looking outside the boundary of the CCDD application to take a look at what would happen if 

they allowed that quarry to be dewatered and the resulting pool of contamination from a separate quarry. 

That change prevented additional groundwater contamination and points to the importance of the regional 

review of projects. Network members urge that the regional impact of each and every project coming 

before you not only for ash fill but for additional purposes and permitting become part of the review 

process. 

We urge that EPA change past practices at looking just within the boundaries of a project and when 

deciding whether to permit it or not, and take a look and see if it would have any regional impacts, 
29

particularly in terms of groundwater draw-down. Groundwater in our region in Will County is being 

lowered and it's an important piece of this puzzle in reviewing fly ash regulations.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0065-1

Organization1:Peoria Families Against Toxic Waste

Commenter1:Joyce Harant

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.2.1

Comment Excerpt Text:

We do support the regulation by Subtitle C of your options. I have three points that I hope I will have 

time to make. When I read in your website the description for Subtitle D option regarding enforcement, 

Subtitle D enforcement through citizen suits, states can act as citizens. I had a quite visceral and negative 

reaction that I will not share with you this afternoon. The thought that my government who is proposing 

this regulation because it knows that coal ash is not currently being stored in a manner that protects the 

public's health and safety, that you would even offer us an option that we should rely on citizen suits to 

protect us is ludicrous. 

I'd like to ask you, have any of you been involved in trying to promote environmental safety as part of a 

grassroots citizens group? By the way, have you documented just where these citizen activists are 

located? Do we live in every location that needs monitoring? Do these regulations give us any authority to 

investigate access to funds to monitor sites, any funds to fight these wealthy corporations in court? I did 

not see that in the regulations. 

If you ever had to face these wealthy corporations in public hearings and could not afford the professional 

testimony that you need, you would never suggest citizen enforcement. Have you ever had to fight a 

wealthy corporation in court without having government attorneys on your side? Have you ever worked 

with seven other people for six hours at 90 degrees at a ball game selling hotdogs just to make $300 to 

pay your attorney? 

I am currently a plaintiff in a lawsuit in the Third Appellate District in Illinois regarding Electric Arc 

Furnace Test. I can tell you that when our single, poorly paid but dedicated attorney faced the five 

attorneys supporting the hazardous waste company, you know it's not a fair fight. So, I repeat, do not rely 

on citizen suits for enforcement. 

The idea of citizen enforcement is like "don't ask don't tell." Don't ask don't tell the coal ash producing 

companies because if there doesn't happen to be a well educated, informed and financed citizen activist in 

the community, we surely know that the wealthy corporations won't tell about their pollution. 

I would also like to express caution in how the coal ash is determined to be able to be used in a so-called 

safe manner. In Peoria, we have one of the highest lead contamination of homes and lead poisoning in 

children. And we need to make sure that any so-called safe use has thorough testing and long-term testing 

so that this is not coming out in dust into the water after demolition of homes or however it is used. 

And lastly, I believe we must have universal rules throughout this country to control coal ash waste. If I 

live in a progressive state, it really doesn't matter because the state next door can be inadequate and I'm 

still at risk

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0068-1

Organization1:Physicians for Social Responsibility

Commenter1:Jeff Patterson
30

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 6.1.1

Comment Excerpt Text:

Today, we have released this report, a comprehensive report on the toxic and deadly effects of coal ash. 

It's available our website, www.psr.org. As this report points out, the threat to public health from coal ash 

is already both serious and widespread. Coal ash is disposed of in approximately 2,000 dumpsites across 

the nation. Coal ash toxicants have leached from disposal sites in well over 100 locations carrying toxic 

substances into aboveground and underground waterways and, in many cases, drinking water wells. 

The impacts to health can be quite severe. According to an EPA assessment report, people who live near 

an unlined wet ash pond and get their drinking water from a well have as much as a 1 in 50 chance of 

getting cancer from drinking water contaminated by arsenic. 

Even when people are not drinking contaminated water, their health may be threatened if they eat fish 

taken from water sources contaminated by coal ash toxicants. Coal ash is also dangerous if inhaled, 

making fugitive dust from coal ash dumps a serious health concern. Unfortunately, those least able to 

protect themselves from contamination, developing fetuses and young children, are even more susceptible 

to harm. Thus, the so-called safe levels of toxicants which are developed for adults may be far too high. 

Finally, coal ash is persistent over time, raising long-term concerns and challenges in regards to health 

and in regards to the outcome of these products. When coal ash contaminants leach out of unlined surface 

impoundments, it may take decades until they reach peak concentrations in nearby well water: 74 years 

for selenium, 78 for arsenic, 97 for cobalt. They don't disintegrate or lose their toxicity. 

The stigma is already there. It is the stigma of the damage to the health of thousands that the coal industry 

has already caused and will continue to cause for many years to come. Coal ash is a part of that damage. 

We must do our best to prevent future damage. There is no cure, only prevention. 

For that reason, PSR calls on the EPA to discharge its duty to protect the environment by applying the 

strictest possible levels of control over coal ash disposal. We must apply the precautionary principle. We 

strongly support Subtitle C as the only option currently on the table that would adequately protect human 

health. 

Federal regulations of coal ash disposal are important. State efforts are inconsistent and frequently too 

weak. We must phase out wet storage. And finally, we must limit the recycling of coal ash to uses where 

coal ash is not exposed to water and where the ash is chemically bound. On behalf of PSR, we support C 

and thank you very much

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0077-1

Organization1:Lone Tree Council

Commenter1:Thomas Reinke

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

We need help. I do believe that the Department of Natural Resources is committed to protecting the 

public but the state's arms are tied by limitations of state law. We need the EPA's help again. We need 

strong federal safeguards against toxic ash. We need minimum national standards for storage, transport 

and disposal of this hazardous waste, required corrective action, storage and management requirements, 

regular inspections, closure and post-closure requirements, reporting for locations of past and present 

sites, and enforcement guarantees. 

We urge you to issue a strong rule. We need help in Michigan, help only the resources of the federal 

government can provide. 
31

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0078-1

Organization1:Michigan Citizen Action

Commenter1:Adam Knott

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.2.4

Comment Excerpt Text:

We strongly support Subtitle C because of the state and federal enforcement that would be part of the 

rule, because private citizens cannot bring a suit on their own, through their own resources. The industry 

has the unlimited checkbook and can outlast any citizen group. Plus, there is no guarantee that the state, 

even though it can be acting as a citizen, will necessarily bring corrective action or bring enforcement to 

the industry. 

And also, we support the state and the federal government's corrective actions under the Subtitle because 

the industry, as much as they have the good intentions of fixing their mistakes and self regulating, don't 

always do that. I can tell you as someone who lives 30 minutes from Marshall, Michigan where 800,000 

gallons of oil were leaked into the Kalamazoo River where I get my water from, that company had 350 

areas of concern and did not address them at all. So, we strongly need both the state and the federal 

government in there to enforce any corrective action that is needed. 

And lastly, Subtitle C will create uniformity throughout the country, from cradle to grave of coal ash and 

its regulation. And if everyone knows the rules, everyone can act accordingly and, you know, those that 

use, whether it's cement makers or the coal industry, if they know what the rules are, they can act 

accordingly and offer the best service and the best product and the landfills will not dry up overnight. 

Every time a rule such as this is proposed, they always say that they'll go out of business. Well, we hear 

that from the regulation of industries that have abused their positions regularly. If it's not the coal 

industry, it's the insurance industry, and not one of them has gone out of business yet. So, we strongly 

support Subtitle C.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0092-1

Organization1:Protestants for the Common Good

Commenter1:Courtney Eccles

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Comment Excerpt Text:

I am here to express our full support for EPA regulations under Subtitle C of the Resource Conservation 

and Recovery Act, which would categorize coal ash as a hazardous waste. My intention today is to tell 

you just how important this issue is to people of faith. 

Protestants for the Common Good has made environmental issues a main concern of ours for the past 

three years, and we have seen significant and growing interest from faith communities on local, state and 

national initiatives. And while this is exciting and of course very necessary, we realize that individual 

action and congregation action cannot be the only answer. The EPA plays a crucial role in protecting our 

land, water, air and the health of all of those who live in this country and on this planet through the 

regulation of emissions and toxic substances, and coal ash should be no exception.

Response: The Agency acknowledges and appreciates the comment.
32

Comment Number: TRANS-CHI-0110-2

Organization1:

Commenter1:Susan Michetti

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Subtitle C as a comprehensive program of federally enforceable requirements is the only acceptable 

option with some corporate accountability if adequate enforcement occurs and if the cost of violating the 

rules isn't cheaper than the right action. So, that's all part of the picture. 

The long-term, overdue, precautionary principle must become part of this equation before any real 

accountability shifts the industry burdens and the costs back to their source instead of unfairly on the 

victims. The victims are getting sick and tired of being victimized by everything we turn around 

everywhere we go in every aspect of our lives.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0125-1

Organization1:Environmental Integrity Project

Commenter1:Sam Flenner

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

I do want to say, after listening to the hearing so far, I do applaud those in the reuse industry who are 

doing their very best to adequately encapsulate a hazardous waste into products so that they don't leach 

and affect people's health. And I also want to applaud the EPA for doing their best to try to juggle this 

very difficult issue and come up with adequate responses for both sides. 

I also want to say that just last week I spoke with people in Sullivan, Indiana who have had a total home 

remodeling project paid for by Hoosier Energy because the coal ash that came off of their dry landfill site 

totally ruined their home. And so, I do believe there is nothing that you could do when you're 

encapsulating this stuff about the stuff that is not being encapsulated, and that's where the problem is and 

that absolutely must be handled under Subtitle C. The EPA absolutely must have authority because the 

state regulatory agencies are doing absolutely nothing to help these people and this type of example right 

here is not an isolated example. It's very common.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0133-2

Organization1:Illinois Energy Association

Commenter1:James Monk

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

For those reasons, we would certainly urge a decision to not regulate as a hazardous waste but instead to 

regulate under D or D Prime.
33

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0141-1

Organization1:Save the Dunes Council

Commenter1:Larry Davis

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

The United States Environmental Protection Agency has an opportunity to correct a grievous error 

concerning the exemption of toxic coal combustion waste from regulation under Subtitle C of the 

Resource Conservation and Recovery Act (RCRA) which dates back to the Reagan administration. In 

1980, the so-called Bevill exemption in RCRA provided the mining industry what was supposed to be a 

temporary exclusion for certain large volume wastes from the extraction, benefaction and processing of 

ores and minerals including coal combustion waste, or as you call them coal combustion residuals. 

After 30 years of accumulating damage from wastes exempt under the Bevill amendment, the time has 

come to regulate toxic coal combustion waste under RCRA Subtitle C as a hazardous waste based on the 

long-term impacts to human health and our environment. Under the new EPA leach test, it is clear that 

many of these coal combustion wastes do in fact test as hazardous constituents. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0147-1

Organization1:Little Village Environmental Justice Organization

Commenter1:Kimberly Wasserman-Nieto

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 9.2.3

Comment Excerpt Text:

I'd like to note that I'm also a council member on the EPA's National Environmental Justice Advisory 

Council though I am not speaking in my capacity as a NEJAC member today. I am speaking as the 

executive director of the Little Village Environmental Justice Organization, and as a member of the Little 

Village community on the southwest side of Chicago. 

Why I'm here today is because our community sits in the shadow of one of two coal power plants within 

the city limits of Chicago. For the last eight years, we have fought to clean up these outdated plants, and 

in our struggle we have learned a lot about coal and its byproducts. From what we have verified with 

other partner organizations as of yesterday is that the Illinois EPA does not know where the coal ash of 

the two plants in our communities goes. All they know and all we know is that it's shipped offsite. 

This means that none of our regulatory agencies know where all this stuff goes. This is a very scary 

thought, and even scarier when accidents like the largest industrial waste spill at the Kingston Power 

Plant in Rome County Tennessee takes place. We are fortunate in Chicago not to have dealt with an issue 

like that. But not knowing how, when and where the ash from our plants is being stored is even worse to a 

certain extent, especially given cases from around the United States of coal combustion waste sites 

contaminating drinking water and giving off harmful clouds of airborne coal ash. 

The myth with this rule is the belief that you can beneficially reuse toxic ash and fill cement asphalt and 

with this reuse the coal ash doesn't need to be regulated under RCRA. However, for all the reasons 

mentioned above, we need rules keeping track of this toxic waste. Our communities and the EPA have 

spent way too long responding to spills and accidents. The reality is coal ash is a hazardous substance 

which is why this is not a green industry just because it recycles and reuses. 

Communities and the environment cannot afford to have this hazardous substance green-washed. There is 
34

a link between adverse impacts on EJ communities and proposed rules that would only increase the 

disproportionate impact of pollution sources on environment justice and low-income communities. In 

NEJAC, we were tasked to plan how to incorporate environmental justice early and often into the EPA 

rulemaking processes. However, rolling out rule after rule will not stem environmental justice 

communities' exposures to pollution sources or provide enhanced protection from pollution. 

For these reasons and so many more, coal ash must be regulated under RCRA Subtitle C as special waste 

by the USEPA with all attenuated safeguards that it requires. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0155-1

Organization1:Chicago Chapter of Physicians for Social Responsibility

Commenter1:Peter Orris

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 6.1.1

Comment Excerpt Text:

I'm presenting testimony for the Chicago Chapter of Physicians for Social Responsibility. We have 

delivered the very brief written comments that we have, and given the hour I'm going to make only two 

points. 

One is that we believe clearly the coal ash should be regulated under Subtitle C. We believe that such 

regulation will allow the EPA to intervene and reduce the XX cancers that the literature already 

documents are occurring related to this toxic exposure of people living in and around these coal ash 

ponds. 

So, we support strongly that regulation as a special waste, and we thank you very much for having us here 

today and for holding the hearings.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0175-1

Organization1:

Commenter1:Lora Chamberlain

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 6.1.1

Comment Excerpt Text:

My name is Dr. Lora Chamberlain and I am here in support of the regulation of coal ash under Subtitle C. 

And I'm a family physician here in Chicago and coal ash, even a brief cursory discovery on the internet 

and other periodicals, has been proven to be a hazardous waste. The toxins include mercury, a known 

neural toxin causing developmental defects and decreased intellectual functioning; chromium, the 

ingestion of which causes multiple gastrointestinal cancers, the inhalation which causes asthma or 

respiratory disease, lung cancer; selenium causes neurological effects; lead causing effects really on every 

system in the body; arsenic, also almost every system in the body; and on and on and on. 

Now, I am here to talk to you about the so-called beneficial uses of coal ash. I'm really, really concerned. 

I was going to actually testify about something else but I was in the audience and I was listening to all of 

this talk about putting coal ash or gypsum on our crops. And so, I ran down to FedEx and I did a, you 

know, research on what has been investigated with the use of gypsums. And there has been very, very few 

studies done on the post-application of gypsum. I looked up one of your own reports, the characterization 
35

of coal combustion residues from electric utilities leaching and characterization data, and even your own 

report shows that there are vast toxicities, toxic levels with the use of FGD gypsums. And I am really 

concerned that we're not investigating this in a post- application basis a little bit more. 

Just an example on one issue, and that is selenium was found to have, in some of your studies, in some of 

your samples, was found to have 16 times the hazard level to human health in the gypsum samples. So, if 

gypsum is okay for our crops and it is not toxic, I want to encourage everyone to do what the doctor who 

testified in the congressional, Dr. Donald McGraw, and that is to put coal ash on your morning cereal. 

You don't have to do it if you don't want to but, you know, unless we study it, we really don't know the 

effects of it. 

(Applause) 

DR. CHAMBERLAIN: Do some further study. Thank you. And pass the Subtitle C.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0180-1

Organization1:National Parks Conservation Association

Commenter1:Nathan Miller

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

In order to avoid future harm and mitigate existing harm to national park resources, the disposal of coal 

combustion residuals from electric utilities must be regulated as special waste under Subtitle C of RCRA. 

Regulating coal waste under Subtitle C will provide the technological safeguards and regulatory structure 

necessary to ensure much needed transparency and industry and agency accountability. Such regulation 

would include requirements for disposal permits, groundwater monitoring systems, liners and leachate 

collection systems necessary to protect people and their parks. 

Without permits and monitoring systems, we will not be able to identify those areas most threatened by 

coal waste exposure, nor will we be able to protect national park resources from related risks.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0001-1

Organization1:

Commenter1:Steve Scarborough

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

This committee will hear from an army of hired corporate spokesmen who will all make essentially the 

same argument. That argument is that doing the right thing and adequately protecting the people from 

coal ash will cost you extra. They will argue against having Federal oversight, saying that they can be 

trusted to do the right thing without regulatory oversight, that state agencies will make sure they handle 

their coal ash just fine, that a system where citizens having to sue them to make sure they handle their 

coal ash is just fine, and that citizens have to sit through a hodge-podge of state courts is better than 

comprehensive and consistent federal regulations in which the EPA has the power to inspect and enforce. 

And oh yes, doing the right thing will cost too much. 

I drove five hours today -- just got out of the car -- to tell you that not doing the right thing will cost far 

more. I come here to speak as strongly as I can for Option C. When I read the EPA cost- benefit analysis I 
36

thought, "Why is anyone opposed to this?" The reason is that it makes the people who make the money 

creating coal ash waste pay the cost of adequately handling and storing coal ash. That is also the reason 

they oppose Option C. They will have to pay more of the true cost of coal power instead of shifting it to 

the American people

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0002-1

Organization1:North Carolina Chapter of Sierra Club

Commenter1:Molly Diggins

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 7.1

Comment Excerpt Text:

Coal ash is of particular importance to North Carolina, for we have the dubious distinction of having been 

identified by the EPA as having more high-hazard coal ash ponds than any other state in the country. We 

know that we generated last year nearly 4 million tons of dry ash. We have no idea how much wet ash 

was generated because it's not required to report that information. 

Following the catastrophic spill in Tennessee, we looked around. We took a close look at what's 

happening in North Carolina, plus looking at other states to see what we needed to do here. And we're 

frankly astonished to learn that despite what is known about the health impacts of coal ash and the toxins, 

that there's no agency, no individual, no institution in North Carolina that can answer the question: how 

much coal ash are we generating, where is it going, and is it safe? 

There is a hodgepodge of programs and regulation but ultimately, North Carolina is awash in coal ash, 

and there is no cop on the beat. Here is what we do know: investigations, when they have taken place, 

have shown that we are having problems with groundwater and surface water contamination in North 

Carolina. And the list of damage reports is continuing to grow here in this state, and nationally. 

We believe this is only the tip of the iceberg. The public is just now really becoming engaged in 

understanding what may be in their backyard, what may be in the lot next door; in fact, what might be 

under their own property. 

I know that this rule as proposed does not address beneficial fill, but I do want to point out in North 

Carolina we have a loophole. Maybe they don't in other states, but we have a loophole here that allows 

largely unregulated dumping of coal ash in unlined landfills. That is a serious problem. 

Subtitle D might have been worth a try a decade ago when EPA first started giving serious consideration 

to addressing the health impacts. That time is long past. The magnitude of the problem is such that Option 

C is the only viable option. Citizens and states need consistent, federally-enforceable requirements if we 

are going to succeed in managing this threat to public health. 

Finally, let me conclude by saying that this is a moment of leadership. We appreciate that the EPA 

inherited this problem from a previous administration, but the public is really looking to you to act. There 

are many here today who are going to talk to you about beneficial fill. I would just state that a failure to 

act to protect public health to avoid a hypothetical public relations problem for certain uses of coal not 

regulated by this rule, would be a complete abdication of the public trust. We urge you to adopt Option C. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0003-3

Organization1:

Commenter1:Dennis Lemly
37

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Subtitle C, or a special waste designation, will afford a much greater level of protection as a consequence 

of better and federally enforceable, nationally consistent controls on selenium-laden leachate. One 

argument against a C designation is the cost associated with the extra pollution control measures it 

requires. However, the cost of anything less than a C designation can be even more expensive. For 

example, the cleanup cost at just one polluted site can be over a billion dollars, and the ongoing 

environmental cost of poisoned fish and wildlife at one site can easily be in the millions per year

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0004-1

Organization1:Sierra Club Beyond Coal Campaign

Commenter1:Marianne Hitt

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.2.4

Comment Excerpt Text:

The first point: coal ash should be classified under Subtitle C of RCRA, not D, because one, it is indeed 

toxic. Why else would TVA be spending $1 billion in buying up all the land around the Kingston spill if it 

was not? We know it causes developmental problems in children, and cancer and other ailments caused 

by all those heavy metals. 

And secondly, the key here is that Subtitle C is federally enforceable and Subtitle D is not. Subtitle D is 

only enforceable by states and citizen suits. And we know that state enforcement has been spotty at best. 

That's what got us into this situation in the first place. And I think we can all agree that it's unfair and I 

would say unreasonable to expect citizens to bear the burden of enforcing rules when the polluters they 

are encountering are well-resourced, well-financed, and these are complex, lengthy, technical, legal 

proceedings. 

So putting the burden of enforcement on states and on citizens is not getting the job done when you've got 

hundreds of these sites all across the country. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0013-2

Organization1:Southern Environmental Law Center

Commenter1:Chandra Taylor

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

We support the Subtitle C option.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0047-1

Organization1:Tennessee Interfaith Power and Light

Commenter1:Douglas Hunt

Commenter Type: Community/Religious/Social Organization
38

Classification: Substantive

Other Sections: 9.2.3

Comment Excerpt Text:

I'm pleased to be here, to call for implementing Option C as a first and critical step in meeting our moral 

and ethical responsibilities to protect people and our planet.

Tennessee did not wait for EPA to give us a hearing. We went ahead and held a people's hearing on 

September 22, the transcript of which has been forwarded, and you will see evidence of the effect of the 

Kingston ash spill on those people's lives. It brought misery and injustice to the people of Will County 

and surrounding communities and now the people of Perry County, Alabama, where 30 percent of 

residents live below the poverty line, and a majority of that African-American, are receiving the remnants 

of the toxic coal ash spreading misery and injustice and the morality that surround the disaster even 

further.

Tennessee Interfaith Power and Light and the rest of our Interfaith Power and Lights are very concerned 

about issues of environmental, energy, and climate justice. Can it possibly be moral to continue to allow 

the transportation, disposal and storage of material that contains mercury, arsenic and a whole laundry list 

of toxic substances without the kind of monitoring and control provided in Option C? Can it possibly be 

moral or just to make the decision not to declare and regulate coal ash as the kind of substance it truly is? 

To fail to adopt Option C will almost certainly make such future tragedies inevitable.

A word about stigma. Those of us here from Muslim, Jewish and Christian backgrounds know about 

stigma from our scriptural teachings. Stigma was not attached to Cain because he deprived people of an 

economic opportunity, or lost jobs. And jobs are critically important in these times. But like Cain, if coal 

ash is to bear a stigma, it will be a stigma from lives lost, lives ruined, and the planet poisoned.

The solution to all of these problems ultimately is to stop burning coal. But that's not going to happen --

that's not going to happen immediately. But Option C is a first and critical step in meeting our moral and 

ethical obligations to protect people and our planet from any more coal calamities like we experienced in 

Kingston.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0054-2

Organization1:Environmental Defense Fund

Commenter1:Sam Prersall

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

EDF believes the CCRs should be regulated under Subtitle C. CCRs meet the criteria necessary to list 

under Subtitle C due to their toxicity, the potential for the hazardous constituents to migrate or 

bioaccumulate, the potential for mismanagement of the waste in cases in which damage to human health 

or the environment has been proven. 

In addition to established risks, CCRs pose other risks that have not been fully explored. For materials of 

this character Subtitle C is far more appropriate than Subtitle D

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0060-1

Organization1:Physicians for Social Responsibility

Commenter1:Lewis Patrie

Commenter Type: Advocacy Group
39

Classification: Substantive

Other Sections: 6.1.1

Comment Excerpt Text:

We believe mandatory Federal regulation of coal ash disposal by the EPA is essential. Coal ash typically 

contains heavy metals, including arsenic, lead, mercury, cadmium, chromium, selenium, plus other toxins. 

They can cause cancer and nervous system illnesses such as cognitive deficits, developmental delays and 

behavioral problems, also heart damage, lung, kidney and gastrointestinal diseases, reproductive problems 

and birth defects. 

Coal ash's toxic contaminants leak into the surface and groundwater. EPA estimates that 140 million tons 

of coal ash are generated annually. Coal ash is disposed at nearly 1,000 sites across the nation, including 

many in North Carolina. 

EPA is considering adopting mandatory federal rules that would phase out leak- and spill- prone wet 

storage of coal ash, require storage areas to be lined and take other steps to minimize toxic contamination 

of surfaces, groundwater, and in a number of places, such as drinking wells. 

Increasingly, opponents of federal regulation of toxic substances argue that regulations that stigmatize 

coal ash would hurt the economy at a time when many people struggle with unemployment, rising prices 

and financial insecurity. PSR avows that coal ash should be stigmatized, considering the price of pollution 

and misery and health care costs. We pay in healthcare and health insurance costs, lost days from work 

and school when we suffer physically, economically, and emotionally from illnesses and premature 

deaths, and when our children are permanently deprived of their capacity for normal intellectual 

development. 

We suggest you compare costs versus benefits comparing employment and economic losses that might be 

experienced by polluting industries with those health costs resulting from toxic pollution, such as has 

been applied to tobacco and health in the past and as being currently applied to the problem of childhood 

obesity. 

Furthermore, costs of burning coal and the use of nuclear power to create electricity should be compared 

to those of retrofitting millions of homes and other buildings with energy-saving measures, plus a 

dramatic switch to truly renewable energy resources, thus reducing our dependence on fossil fuels, a 

major cause of global warming. 

Support Option C (sic). 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0068-1

Organization1:Southern Alliance for Clean Energy

Commenter1:Jennifer Rennick

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.2.1

Comment Excerpt Text:

My name is Jennifer Rennick, and I am the federal policy director for a regional nonprofit organization 

called the Southern Alliance for Clean Energy. I am also the mother of two young children, and I am a 

concerned citizen. And I'm very pleased to have the opportunity to speak today in support of the Subtitle 

C designation for coal ash under the Resource Conservation and Recovery Act. 

In my professional capacity, I track how our federal legislative and regulatory systems make and enforce 

laws in this country. And I've had the opportunity first hand to see time and time again why voluntary 

measures, such as those that would result from the Subtitle D option, simply do not work; particularly not 

when we're speaking about for-profit ventures. Unless this industry is required by law to follow particular 

guidelines, there is no guarantee that public health and safety will be assured. In fact, regulating coal ash, 

which, as we've heard several times today, contains, among other substances, lead, mercury, cadmium, 
40

chromium -- to regulate this in the same category as banana peels, soda cans and other household waste is 

truly unthinkable to me, particularly as a mother. 

And I don't believe that citizens should have to sue after the fact for compensation or remediation in the 

event of another coal ash disaster, such as what happened in Harriman, Tennessee in December of 2008. 

And I do believe the correct word there is "when" we have another coal ash disaster, and not "if." 

We should have the strongest public health protections from the start, and I believe that establishing the 

long overdue and robust standards that would result from a Subtitle C designation will help ensure that we 

have the best protections for our water, our air, and our children's future. I do not believe that 

environmental protection is a luxury as some utility spokespersons have suggested. I believe that these are 

fundamental rights and rights that we all have a shared responsibility to protect. 

And I trust and hope that the EPA is going to do the right thing at the conclusion of this hearing process 

and recommend a Subtitle D (sic) designation. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0070-1

Organization1:Southern Alliance for Clean Energy

Commenter1:Ulla Reeves

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

We are a regional organization, representing citizens across the heavily coal dependent states of the 

Southeast, and we support listing coal combustion residuals as a special waste under Subtitle C of the 

Resource Conservation and Recovery Act. We've arrived at this position through our understanding of the 

serious impacts that even trace amounts of hazardous chemicals can have on our bodies and the 

environment. 

Of particular concern are the dozen high-hazard coal ash ponds here in North Carolina. It is unacceptable 

that we have so many unregulated, dangerous toxic waste dumps looming over us threatening our lives 

and our ways of life. We know from firsthand experience the devastation that coal ash spills have on local 

communities and firmly believe we need stronger standards for managing and ensuring this waste does 

not devastate more communities, homes, lives, and waterways, like those so affected by TVA's Kingston 

disaster in 2008. 

Subtitle C is by far the best option for handling coal ash waste because the alternative, Subtitle D, merely 

establishes unenforceable and optional suggestions for regulation. Given the high levels of arsenic, 

mercury, aluminum and other hazardous constituents that leach from coal ash into the environment, 

comprehensive, enforceable regulation from cradle to grave is the most responsible means of handling 

this waste

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0071-1

Organization1:North Carolina Conservation Network

Commenter1:Dan Conrad

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 2.1.1

Comment Excerpt Text:

In my testimony today I would like to enter two items into your official record, and make a few brief 
41

comments in favor of coal ash regulation under Subtitle C of RARA. 

The first item I would like to enter into the record is a memo endorsed by 17 environmental North 

Carolina groups, detailing the need for coal ash regulation in North Carolina. 

The second item is a petition signed by over 1500 concerned North Carolina citizens urging that the EPA 

enact the more stringent of their two proposals, under Subtitle C of RARA. 

RCRA defines "hazardous waste" as a solid waste or combination of solid wastes, which because of its 

quantity, concentration, or physical, chemical, or infectious characteristics may, A, cause or significantly 

contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible 

illness; or B, pose a substantial present or potential hazard to human health or the environment when 

improperly treated, stored, transported, or disposed of, or otherwise managed. 

I'd like to draw your attention to two specific words in the statute: "may" and "or." "May" indicates not 

that an outcome must occur, but rather only that it possibly could occur. The word "or" establishes that 

only one of the two listed criteria must be met. I would submit to you that coal ash actually meet both 

criteria A and criteria B of the definition. 

Regarding criteria A, the EPA itself has concluded that 49 high hazard potential coal ash surface 

impoundments exist in the United States, 12 in North Carolina alone. According to the EPA, high hazard 

potential indicates that a failure will probably cause loss of life. It is difficult for me to imagine a case 

where loss of human life would not qualify as an increase in mortality. 

Regarding criteria B, all 13 of the coal ash ponds in North Carolina that have conducted testing have been 

found to exceed North Carolina groundwater standards. In one case, arsenic concentrations were 

measured at 44 times the primary maximum contaminant level. Again, it is difficult to imagine a scenario 

where arsenic concentrations found in contaminated groundwater at 44 times the federal MCL would not 

possibly pose a substantial present or potential hazard to human health or the environment. 

Under either criteria, it is evident that coal ash is encapsulated by RCRA's definition of hazardous waste. 

With that in mind, the North Carolina Conservation Network urges that at a minimum the EPA adopt the 

more stringent of its two current proposals, regulating coal ash under Subtitle C of RCRA

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0073-2

Organization1:

Commenter1:Christine Ellis

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

In summary, current standards for regulation of coal ash ponds is inadequate, and therefore I ask that EPA 

commence regulating coal ash under Subtitle C of RCRA and commit to protecting our groundwater and 

surface water resources, and the health of our communities

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0083-1

Organization1:Clean Water for North Carolina

Commenter1:Katie Hicks

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 6.1.1

Comment Excerpt Text:

At Clean Water for North Carolina, we have a special concern with coal ash waste's threat to 
42

groundwater, as it is a source of drinking water for over 50 percent of North Carolina residents, including 

those served by public water systems that use groundwater as a source. 

More than 2.5 million North Carolinians depend on their own private wells, which are not being tested for 

the contaminants most likely to come from unlined, under-monitored coal ash dumps. We're acutely 

aware that as more data accumulates, there are more and more instances of documented contamination of 

groundwater, which pose an unacceptable threat to the health and well-being of North Carolinians. 

Our organization knows of communities living very close to coal ash ponds in this state, such as the 

neighborhood just behind the pond at Duke Energy's Buck Steam Station. The whole approach of 

regulating within a compliance boundary is based on the assumption that land ownership and uses will 

change little over time and that groundwater won't move significantly; both completely unrealistic. We 

know that groundwater moves, and in unexpected ways. On behalf of the groundwater users and 

marginalized communities we work to protect, Clean Water for North Carolina supports regulation of 

coal ash waste under Subtitle C. EPA's first proposal is a step in the right direction. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0104-1

Organization1:South Carolina Chapter of Sierra Club and League of Women Voters of South Carolina

Commenter1:Peggy Brown

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 7.1.2.2

Comment Excerpt Text:

The South Carolina chapter of Sierra and the League of Women Voters strongly recommend the EPA's 

consideration to regulate coal ash ponds under Subtitle C, Resource Conservation and Recovery Act, as it 

is the most protective choice on the table.

South Carolina has 12 polluting outdated coal burning power plants that require at least one or more coal 

ash ponds. Leaching unregulated coal ash ponds will percolate into the ground, and without proper 

barriers eventually reach groundwater and contaminate the water with toxic waste.

Right now we have three known ash ponds that are leaching coal waste in the groundwater. At this time, 

South Carolina DHEC has no groundwater monitoring system in place. Due to budget restrictions, they 

have re-evaluated the number of surface water monitoring sites and the frequency of testing. With recent 

evidence of groundwater contamination at the Wateree Eastover site, DHEC has a pending groundwater 

monitoring requirement to begin at some point. But in reality, if they're having trouble, or if they're 

having to cut back monitoring surface waters, where will the funding come from to begin a new 

groundwater monitoring program?

South Carolina has many rural areas that rely on well water for drinking. State records indicate the 

potential for more protect -- for more private wells to be contaminated may occur. Groundwater 

discharges from coal combustion waste dumps may load drinking water sources with contaminants that 

could increase nearby residents' cancer to as high as a staggering 1 in 50, so you report. Potential well 

water contamination of rural South Carolinians put the already economically challenged even at higher 

health risks.

If the EPA will regulate coal ash under Subtitle C, RCRA, the Rule for coal ash as hazardous waste under 

Federal law, this will require the industry to phase out porous sludge ponds, replace them with sturdy, 

leak-proof facilities. The Subtitle C will take the burden off the State agency that is already physically 

struggling and place the responsibility of cleanup and up fitting on the utilities.

Response: The Agency acknowledges and appreciates the comment.
43

Comment Number: TRANS-CLT-0112-2

Organization1:Appalachian Voices

Commenter1:Willa Mays

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

We have direct hands-on experience with coal combustion waste and its impact to waterways in North 

Carolina and Tennessee. Our research has consistently shown that coal ash contaminates groundwater, 

surface water and aquatic life with toxic heavy metals in 100 percent of the cases we have investigated. 

The science is clear. Coal combustion waste is hazardous and it poisons water. 

The current state by state regulatory framework is not working. The regulation of coal combustion waste 

under Subtitle C by the federal government is the only option that will protect communities and 

waterways. All wet storage of coal ash in open pits should be eliminated, and coal combustion waste 

should be federally regulated

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0115-2

Organization1:South Carolina Coastal Conservation League

Commenter1:Nancy Cave

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Again, we ask that the EPA rule coal combustion waste be regulated under Subtitle C.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0123-1

Organization1:CROP PLUS

Commenter1:April Watts

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

EPA must classify coal combustion residuals under Subtitle C.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0134-2

Organization1:Appalachian Voices

Commenter1:Sandra Diaz

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

And while the terrible incident in Tennessee is just an extreme case of a damage that coal ash can bring to 
44

a community, it thankfully woke us up to the more insidious danger that coal ash can bring by slowly 

leaching toxic heavy metals into groundwater supplies over time. 

We know that coal ash is a toxic substance. The EPA science says so. In North Carolina alone, 13 

massive coal ash ponds are currently leaking heavy metals. Of course industry is opposed to treating coal 

ash as the hazardous waste it is. If this were a hearing about mercury, the industry would be arguing 

against regulating mercury. The industry's motivation is their bottom line. Why would they want us to pay 

for their waste when they can get the public to do so? Who is looking out for the public interest? It is up 

to the EPA to do so; the Environmental Protection Agency. 

I ask that the EPA protect human health by regarding their own science and regulating coal ash under 

Subtitle C in order to provide strong Federal oversight to this known toxic substance. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0135-2

Organization1:League of Women Voters of Columbia, South Carolina

Commenter1:Suzanne Rhodes

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

I was also interested to hear about the Subpart K. I think federal Subpart C is what -- the direction we 

probably need to go. We need to get together and avoid future problems and someone's got to figure out a 

way to test the ash and the coal ash -- fly ash, coal ash products, that are, in fact, usable as product, but 

they need to be tested. And I'm surprised that nobody's paid attention to EPA's statement that's in the back 

of your handout. I guess I don't have it -- yeah, page 2 -- for the metal exemptions, which they pretty 

much tell you they are not talking about focusing on fly ash, they are talking about testing. 

Obviously, this is going to cost money, and their permits are running the fees, and I think the ash program 

should be also.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0138-3

Organization1:South Carolina Chapter of Sierra Club

Commenter1:Susan Corbett

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

I am the chair of the South Carolina Chapter of the Sierra Club. I'm here today to express our support for 

the classification of coal ash and Subtitle C.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0139-1

Organization1:Concerned Citizens of Giles County, Virginia

Commenter1:Darlene Cunningham

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.2.4
45

Comment Excerpt Text:

I live in Giles County, a Southwestern county in Virginia where a division of American Electric Power 

and a 501(c)(3) public school foundation have teamed to construct an unlined fly ash dump right on the 

edge of the New River. Citizens of my county have been denied a right to a public hearing to oppose this. 

Actually, my state DEQ allows such action calling it "beneficial use." That's right. Pouring tons of toxic 

ash in an unlined site right by the river and calling it "fill" is okay in my state. Such is the regulation in 

Virginia. 

The notion that states and utilities are effectively regulating coal waste is grossly erroneous and is being 

circulated by those who stand to profit if the status quo is maintained as described in Subtitle D. These 

hearings would not be necessary if states and industry were generally concerned about protection of our 

water and if they were disposing of their waste responsibly. The fact is there must be effective, 

enforceable Federal regulation for coal waste if public health is to be valued over corporate profits. 

Subtitle C is the only rational choice.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0145-2

Organization1:CROP PLUS

Commenter1:James Hofter

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

EPA must classify CCRs under Subtitle C.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0146-1

Organization1:Appalachian Voices

Commenter1:Eric Chance

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 8.5 6.4.3

Comment Excerpt Text:

Based on a review of the voluntary groundwater monitoring data, every coal ash pond in North Carolina 

for which data was available is leaching heavy metals and other pollutants into groundwater. This 

leaching is causing heavy metals to be taken outside of the waste boundary. Equally as alarming is the 

prevalence of groundwater contamination at these sites is the level of contamination. Monitoring showed 

681 exceedances of State groundwater standards including arsenic levels up to 8.8 times the State 

standard, boron levels up to 16.6 times the State standard, chromium levels up to twice the State standard, 

iron levels up to 380 times the State standard, lead levels up to three times the State standard, and 

manganese up to 200 times the State standard. This contamination not only has the potential to damage 

nearby waterways, but it can also contaminate the drinking water of nearby residents. And only one of the 

13 ash ponds reviewed by this study has NC Department of Environmental and National Resources 

required any sort of cleanup or monitoring or further monitoring action. 

Appalachian Voices has also partnered and researched in the wake of the Kingston, Tennessee coal ash 

spill. Research has been ongoing since the spill and has shown levels of arsenic, barium, cadmium, lead 

and selenium in the Emory River exceeding protective drinking water standards and/or aquatic life 

criteria. Although water quality has returned to a more normal state since the spill, ash and ash-laden 

sediments with high levels of arsenic have washed far downstream from the spill site. Also, selenium 
46

levels in fish downstream from the site continue to rise and at exceeded threshold levels for reproduction 

and growth. 

Our research clearly shows that coal combustion waste has significant impacts on groundwater, surface 

water and aquatic organisms. Current regulatory framework does not adequately address the toxicity of 

coal ash and has allowed the contamination of our nation's water to go on for too long. 

Our research shows that coal ash is hazardous to the environment and we believe it should be regulated as 

a hazardous waste under Subtitle C

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0152-2

Organization1:

Commenter1:Stephen Keener

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I speak in favor tonight of Subtitle C

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0153-2

Organization1:Greenpeace USA

Commenter1:Robert Gardner

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Lax guidelines such as those that would be applied under Subtitle D regulations will fail to fix the 

problem as the EPA expects that approximately 50 percent of coal ash dumps and waste will not clean up 

under this plan. This is unacceptable. A hazardous waste designation under Subtitle C of RARA would 

ensure that coal ash dumps and waste ponds have all the protections currently required at waste landfills. 

Solid waste permits, liners, monitoring systems, and leachate collection systems make sense, are readily 

available technologies, and can help prevent disproportionately poor communities from being at risk from 

high-hazard dams and leaking dumps.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0163-1

Organization1:

Commenter1:Erin Glynn

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I'm here today to join the overwhelming number and majority of citizens who have attended these 

hearings in calling for the most stringent, hazardous, Subtitle C regulation of coal ash waste. 

My biggest problem with coal ash as it currently stands is the lack of monitoring data. The fact that we 

have no effective "snapshot" of ash ponds in the United States, the Southeast, and the state of Georgia is 
47

more than concerning. Add to that the opaque nature of these ponds; down a country road, behind 

hundreds of feet of trees, on private property where reporters and the public can't go, and my concern is 

even greater. 

If giant utilities, like the Southern Company claim all is well, why take such precaution to keep coal ash 

and its related data from the public eye? Subtitle C would improve monitoring and create Federally 

enforceable standards. We need this desperately. Our state, the state of Georgia, is doing little to nothing 

and doesn't appear to have the smallest bit of capacity to take on this monumental task. In fact, I can't 

even get a clear and comprehensive list of all the ash ponds in my state. Some say 15, some say 17, some 

even 28. 

In addition to submitting my comments today, I'd like to request verification on the number, size, age, 

contents and location of all of the coal ash waste ponds in the state of Georgia. 

I met with a woman in Macon a few weeks ago; Gloria. She was too sick to be here today. But she lives 

on the back border of Plant Scherer's ash pond. She's the closest resident to Scherer's ash pond. Gloria has 

battled cancer, lost her husband to cancer, and is now watching the two kids across the street, ages seven 

and five years old, suffer from cancer. She had a new driveway put in a few years ago and sometimes the 

ash is so heavy that she can see tire tracks in the driveway. They put new windows on the house not too 

long ago, and before the caulk could even dry it was black with ash. Gloria's house is well water and she 

has lived there for over 30 years. 

But this is not just to tell you Gloria's story, because I'm sure you'll hear about that in other ways. This is 

to tell you about what our state is doing. 

So what does EPD do? What does EPD do? They permit another waste storage facility at Plant Scherer. 

The gypsum storage pile is already piling up and Gloria has seen the dust. We need Federal action on this 

now. EPA has made the right decision in proposing Subtitle C, and I, and we, applaud you. I wasn't even 

aware that D Prime was on the block for discussion today, so the fact that utilities can create their own 

regulation and then lobby for it is especially interesting. 

And I would like to add for the record that my friend Katherine Cummings, from Sandersville, spoke 

about the Plant Washington landfill. It's important to note that these people have not even applied for that 

permit because they are waiting on EPA to make the right decision. So please pass the Subtitle C 

regulation

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0174-2

Organization1:

Commenter1:Reuben Hannon

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

While closing all existing surface impoundments that don't meet the rule's technical requirements will 

increase cost, it is a necessary investment to ensure safety. The permitting process provides a level of 

needed federal control. Subtitle C is the only approach that allows direct federal enforcement of the rule's 

requirements. Multiple studies suggest that the states have not yet adequately implemented the regulatory 

programs that were CCR management units, and that significant gaps continue to remain under state 

regulation. 

CCRs from 56 percent of the 34 facilities, in another mentioned study; this one done in 2009 by the EPA, 

exceeded at least one of the toxicity characteristics regulatory values for at least one type of CCR, 

illustrating the prevalent problem. 

In 2008 the Environmental Council of the States issued a resolution stating that federal regulation wasn't 

necessary. The data supports that they are wrong. And while state regulations may be in place they are 
48

obviously either inefficient or unenforced. 

I encourage your cooperation with state dam safety programs, considering that the structural stability of 

the surface impoundments is largely regulated under these programs. To date the EPA claims to have 

made certain conclusions from three recently prepared EPA reports. These findings all seem to clearly 

support mandating groundwater monitoring systems. I applaud your including this criteria in both Subtitle 

C And D. The amount and solubility of a constituent that may reach an aquifer or drinking water well are 

issues that the EPA needs to further investigate however. 

Please regulate this dangerous material to ensure that our drinking water, well-being, and a general 

environment are protected against these known effects of this substance. Thank you and please implement 

Subtitle C

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0024-1

Organization1:Sierra Club

Commenter1:Molly Rooke

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

The Sierra Club applauds the stronger Subtitle C option for the regulation of coal ash because we need 

strong federally enforceable standards, not state guidelines. In Texas, we would especially be in fear of 

any weak state guidelines because that would be the best we could ever hope for. We need to protect our 

health and communities from the very real and environmental risks posed by toxic coal ash. 

Both the EPA and the National Academy of Sciences have years of research showing that coal ash is 

becoming increasingly toxic. And it's clear that we also can't take the polluter's word that they will protect 

us and the environment from harm. Strong federal safeguards need to be issued quickly before more 

communities are exposed. Continuing to ignore scientific and safety concerns could come at a very high 

cost. And we've seen the high cost that's already being paid by people who live near coal ash. Effective 

coal ash regulations must require basic protections for communities such as composite liners, water runoff 

controls, groundwater monitoring, and financial assurance that companies pay to clean up what they 

pollute.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0027-1

Organization1:Ozark Headwaters Group of Sierra Club and Arkansans Against Ash Dumping

Commenter1:David Orr

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.2.4

Comment Excerpt Text:

I'm the chair of the Ozark Headwaters Group of Sierra Club in Arkansas. And I am also founder of 

Arkansans Against Ash Dumping. We appreciate the opportunity today to support the proposed Subtitle C 

rule that would regulate coal fly ash as a hazardous waste material. In our state, the -- the regulatory 

framework is considered by many to be one of the weakest in the United States. Our Department of 

Environmental Quality has little authority to take enforcement actions of any significance under the Clean 

Water Act and other -- and other environmental laws. We need help from EPA and from the federal

government generally to put additional pressure on our state and on the Arkansas Department of 
49

Environmental Quality to take its responsibilities under federal environmental law more seriously or else 

take enforcement over from ADEQ and the other agencies that are failing in their responsibilities. 

And while we have concerns with failure to enforce existing laws, we are here today to bring to your 

attention a growing threat to groundwater and aquifers in our state, and to our streams and soils, as well. 

The unregulated dumping of coal ash is polluting our state, especially now in areas where drilling for 

natural gas is occurring. We have the Fayetteville shale formation where hydraulic fracking techniques 

are used that cause extensive damage to aquifers, streams, and soils. 

This fracking technology uses massive amounts of clean water from groundwater supplies and surface 

water supplies in fracturing underground gas-bearing rock. Water is mixed with toxic drill muds, organic 

chemicals including benzene and toluene and other heavy metals. These pollutants are either left in place 

or pumped out of the drill holes and dumped in open pits or pumped down other holes and ponds, such as 

is done in Bokoshe, Oklahoma, just across our western border near Fort Smith. 

We are now informed that fly ash is being pumped into abandoned drill holes where it may be leaching 

into adjacent groundwater supplies. Because there is no regulation of ash today, we have no idea how 

much ash is being dumped into wells, nor do we know how much leachate has migrated or will migrate 

into aquifers. We have learned that Oklahoma ash is being hauled into Arkansas for dumping and vice 

versa. Clearly, there is now an interstate commerce in fly ash. We must have federal intervention and 

regulation to control the proliferation of these shipments.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0049-1

Organization1:

Commenter1:David Griggs

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I want to commend you also for recognizing the very real health and environmental risks posed by the 

toxic coal ash. Against the seriousness of these risks, enforceable federal safeguards, not suggested state 

guidelines, are necessary to protect our communities. 

From what I have learned, improved testing methods reveal that coal ash is significantly more toxic than 

originally thought and has an increased risk of leaking into our waterways. The levels of pollution, like 

arsenic, seeping from coal ash have been found to be significantly higher than what is considered safe for 

drinking water. 

Therefore, I support Subtitle C of your choices, which would impose federal safeguards -- excuse me --

federal standards for regulating coal ash as a special waste, requiring permitting, monitoring, standards of 

transport, phasing out wet ponds and so forth, while allowing for beneficial use. 

I would also encourage you to include that coal ash be in cessation until a government study has proven 

that the uses are not harmful in the immediate or long term to our public health and safety. 

The status quo of state guidelines is not substantially different from what we have now. Few, if any, 

changes would be accomplished by that. State regulation is not enough. Despite the known toxicity of 

coal ash, a vast majority of states do not even require monitoring to see if coal ash is polluting the water. 

That's why the federal government must act. Now is the time. If not, when? So don't miss this 

opportunity. For the sake of our health and safety, I urge you to adopt Subtitle C in your rule-making 

process

Response: The Agency acknowledges and appreciates the comment.
50

Comment Number: TRANS-DAL-0063-1

Organization1:

Commenter1:Jody Harlan

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 4.2.4

Comment Excerpt Text:

I would like for the EPA to recognize the public health and environmental hazards caused by coal ash and 

the impact on the communities in Oklahoma. And ask you to regulate it under federal guidelines Subtitle 

C of the RCRA. This is the only option that establishes federally enforceable standards needed for 

oversight and protection of the citizens and -- and the water.

In Oklahoma, state regulation and enforcement are notoriously weak or nonexistent. The Oklahoma 

Department of Environmental Quality, the Water Resources Board, and the Oklahoma Department of 

Mines each insist that the other is responsible for regulation. And to regulate under Subtitle C would be 

following EPA's own guidelines.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0071-1

Organization1:

Commenter1:Rogers Dennis

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 7.1

Comment Excerpt Text:

We know about by-products from coal combustion such as arsenic, lead, boron, selenium, mercury, 

cadmium, thallium, and many other pollutants at levels that put humans and animals at risk. Coal ash 

dumped in unlined or clay-lined ponds and landfills pose the greatest danger. When coal ash is deposited 

in landfills or impoundment structures, coal ash can be leached into the groundwater. 

In West Texas, it can be blown by the wind throughout the watersheds and end up being washed into our 

surface water reservoirs when it rains. Whereas, underground water is scarce to nonexistent in West 

Texas, safe surface water from limited rainfall becomes extremely important to all life, including humans, 

animals, birds, and fish. 

At least 23 states have poisoned surface water and groundwater supplies caused by improper disposal and 

storage of coal ash. Texas is second in the nation in coal ash generation. There are no leachate collection 

systems in Texas, and there is no groundwater monitoring. New Earthjustice/EIP, Environmental Integrity 

Project, show additional coal ash contamination in our state and the entire country. 

According to the EPA damage case assessment, proven damage cases in Texas include Brandy Branch 

coal ash dump in Harrison County, Southwestern Electric Power Company coal ash dump in Titus 

County, and unpermitted discharges in Texas Utilities Electric Martin Lake Reservoir in Rusk County. 

All three have leaked dangerous levels of selenium. 

Coal ash is inexcusably considered exempt waste under an amendment of the Resource Conservation and 

Recovery Act, RCRA. This is not acceptable. Industry is so diverse that it cannot regulate itself and 

consequently needs to be regulated with standards that protect the public as well as itself. 

Regulations have been unsuccessful in Texas and many other states. Regulation needs to be on a national 

level to include protective regulation of all states. The EPA must regulate coal ash to address the risks 

from the disposal and storage of the wastes generated by electric utilities. 

The EPA needs to support the RCRA Subtitle C designation to classify coal as a hazardous waste. 

Response: The Agency acknowledges and appreciates the comment.
51

Comment Number: TRANS-DAL-0082-2

Organization1:Citizens For Environmental Clean-Up in Fairfield, Texas

Commenter1:Charles Morgan

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

We must protect our environment from contamination and hazardous waste contained in the CCRs. The 

EPA table showing cost and benefit ratios shows a higher cost for the Subtitle C method of control, but 

the table also shows a greater benefit, many times greater benefit than the cost, and a much greater benefit 

than the Subtitle D proposal. 

Therefore, the CEC request Subtitle C be used as the method of CCR control. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0122-3

Organization1:

Commenter1:Whitney Pearson

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

We need the federal enforcement and financial accountability that a Subtitle C designation would provide. 

Coal ash should be regulated from cradle to grave. Subtitle D is not sufficient. Please adopt Subtitle C 

designation and protect citizens and communities from toxic coal ash.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0126-4

Organization1:Public Citizen's Texas office

Commenter1:Tom Smith

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Coal combustion waste has been a significantly covered-up problem for the last 35 years in this country; 

and the EPA, through the previous administrations, hasn't had the courage to do what's necessary or 

regulate it to protect public health. 

My time is up and we think that your time is up now to regulate it and to do what's necessary to enforce 

the rules uniformly across the states. Had that been done by the state agencies, we wouldn't have the mess 

we have today across Texas and many other states. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0129-1

Organization1:

Commenter1:Roger Grissette

Commenter Type: Private Citizen
52

Classification: Substantive

Comment Excerpt Text:

We need mandatory federal safeguards to protect our environment from improper coal ash disposal. 

Safeguards require clear and unambiguous protections for surrounding communities. Such safeguards 

should include composite liners, water runoff controls, groundwater monitoring, and assurance that 

companies have the financial ability to pay to clean up what they pollute. 

One thing is clear, coal must be cleaned up, and the industry cannot or will not clean itself. EPA should 

choose the strongest of its proposed federally enforceable safeguards to hold this industry accountable and 

to speed the transition to a clean energy economy

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0151-1

Organization1:

Commenter1:Flavia De La Fuenta

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Under strong option Subtitle C, recognizing that coal ash is substantially more dangerous than household 

garbage and regulate it -- regulating it like the toxic substance that it is will benefit communities and 

environments across the country. The commonsense guidelines backed up by federal enforcement and 

financial accountability provide much needed environmental and public health safeguards. 

As a citizen of Texas, I strongly urge you to adopt strong option Subtitle C.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DEN-0015-3

Organization1:Colorado Interfaith Power and Light

Commenter1:Betty Goebel

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Other Sections: 10.2.4

Comment Excerpt Text:

I urge the EPA to adopt Subtitle C. Education is the solution to stigma concerns, and we do not oppose 

the use of encapsulated beneficial reuse.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DEN-0017-1

Organization1:Earthjustice

Commenter1:Melanie Kay

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 8.9

Comment Excerpt Text:
53

This rulemaking is of monumental importance to the protection of health and the environment. How we 

deal with enormous volumes of coal ash will have vital implications for the future health of our 

communities, and for this reason it is imperative we properly regulate coal ash via Subtitle C. 

Today I'd like to focus on three points particularly relevant to this hearing's location in Denver. First, the 

current laws of western states governing coal ash disposal are grossly inadequate. Of the 10 states 

surrounding Colorado that generate the largest volumes of ash, seven do not require groundwater 

monitoring at coal ash surface impoundments. 

This single regulatory requirement is so important that EPA uses it as a benchmark to predict whether a 

state will adopt the proposed Subtitle D guidelines. In other words, if a state has not yet required its most 

dangerous waste dumps to monitor the underlying groundwater, then EPA assumes that these states will 

not enforce or adopt new guidelines that are not mandatory. 

Thus EPA believes that the west, with its booming coal industry, is out of luck for the Subtitle D scheme. 

And the status quo of state regulations is indeed dismal. In fact, Kansas, Montana, New Mexico, and Utah 

exempt coal ash from their solid waste regulations entirely. Consequently, landfills and waste ponds are 

not required by law in these four states to employ even the most basic safeguards such as liners, 

monitoring, corrective action, and financial assurance. 

Second, the arid west presents unique and serious problems associated with improper coal ash disposal. 

Potable groundwater is a particularly precious resource. Yet at numerous sites near western plants, 

mismanagement of ash has contaminated this scarce resource; for example, at the Ried Gardner 

Generating Plant in New Mexico, San Juan Generating Station and Four Corners Power Plant in New 

Mexico, Northeastern Station in Oklahoma, and Dave Johnston Plant in Wyoming. 

Further, fugitive dust at western coal ash dumps is a fact of life in our climate. Despite the likelihood of 

serious NAAQS violations, many western states do not require daily cover, including Arizona, North 

Dakota, New Mexico, and Oklahoma. In fact, severe fugitive dust problems are currently plaguing 

communities in Fruitland, New Mexico, and Bokoshe, Oklahoma. 

Third, in view of our proximity to the headquarters of the American Coal Ash Association, it is important 

to dispel a misconception asserted repeatedly by the ACAA, that there are no damage cases caused by 

coal ash reuse. 

We ask both EPA and the ACAA to review our report published last February, co-authored by the 

Environmental Integrity Project, that describes two sites where the use of ash as structural fill 

contaminated groundwater. 

In addition, EPA itself documented that coal ash used as fill contaminated drinking water in Pines, 

Indiana, and led, in part, to the town's designation as a federal Superfund site. 

In conclusion, nothing but federally enforceable minimum standards under Subtitle C will work for the 

west, and I therefore strongly encourage the EPA to adopt these standards

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DEN-0030-4

Organization1:Colorado Interfaith Power and Light

Commenter1:Joy Jamison

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Comment Excerpt Text:

We support Subtitle C, which would treat coal ash as hazardous waste.

Response: The Agency acknowledges and appreciates the comment.
54

Comment Number: TRANS-DEN-0061-3

Organization1:Rocker Six Cattle Company

Commenter1:Clint McRae

Commenter Type: Other Company

Classification: Substantive

Other Sections: 4.2.4

Comment Excerpt Text:

The State of Montana, Department of Environmental Quality, the only thing they have done is produced a 

two-page flowchart, which I will include with my comments today. 

This toxic and poison water, as I said, is a herd health issue, and the State of Montana has done nothing to 

enforce the law. Subtitle D, if chosen, will also do nothing and will continue the process as is. 

PP&L has done very little to stop the leak, and I think it's time that they become a good neighbor and 

work to protect us in the cow business. It's time for federal oversight. 

Please designate wet ash pond effluent what it is. It's hazardous. And at the minimum, please pick substandard -- C -- the C option

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DEN-0069-1

Organization1:

Commenter1:Mary Kaiser

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 8.2

Comment Excerpt Text:

Thank you for allowing me to speak in support of Subtitle C. I am speaking not just for myself but for the 

many disadvantaged people living near coal ash dumping sites that pollute the drinking water with 

arsenic, lead, mercury, and other heavy metals found to increase cancer 900 times above that which is 

defined as acceptable, and these remain toxic for years. 

About 129 million tons of coal ash is generated by the U.S. each year, making it the nation's second 

largest waste stream. The toxic byproduct of coal combustion is disposed at approximately 600 coal ash 

landfills and industrial waste ponds nationwide. 

At least 23 states have poisoned surface or groundwater supplies as a result of improper disposal of coal 

ash. The industry would like people to believe that it is just dirt. It is not. It is a hazardous waste posing 

serious health risks to humans, wildlife, and the environment. The industry has hundreds of unregulated 

coal ash storage ponds located next to rivers throughout the United States. 

Environmental engineers at Duke and Georgia Tech and medical researchers from Duke's Comprehensive 

Cancer Center conducted a detailed assessment of the spill at the Tennessee Valley Authority's plant in 

Harriman, Tennessee. Their analysis of the ash samples revealed that the spilled sludge contained high 

levels of toxic materials and radioactivity, including 75 parts per million of arsenic, 150 parts per billion 

of mercury, and 8 picocuries per gram of total radium. A picocurie is a standard measure of radioactivity. 

Fine particulates, which are roughly the same size as bacteria, are so small that they can easily be inhaled 

into the deepest reaches of the lungs. People with preexisting pulmonary disease or infections would be 

more susceptible. Past studies have shown that fine particulates can also pose risks for people with 

diabetes or a susceptibility to vascular disease. 

According to the data collected in 1995, more than 60 percent of the country's coal ash disposal units are 

unlined or clay lined. The EPA also found that these composite liners -- the use of a composite liner 

system significantly reduces the exposure to coal ash causing- and health-threatening pollution to within 

acceptable levels. If the federal -- but the federal government and most states do not require such 
55

protective measures. 

I, therefore, encourage you to support Subtitle C with monitoring by both the individual states and the 

EPA who will set and enforce a national standard. We cannot continue to put those living storage 

locations at high risks of health problems. We need enforceable standards. 

Thank you for allowing me to speak in support of Subtitle C

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DEN-0086-2

Organization1:Eco-Justice Ministries

Commenter1:Peter Sawtell

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Comment Excerpt Text:

I call for the implementation of the strong Subtitle C option. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DEN-0101-1

Organization1:San Juan Citizens Alliance

Commenter1:Mike Eisenfel

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 9.2.3

Comment Excerpt Text:

Our organization strongly urges EPA to classify CCW as a hazardous waste stream to fully evaluate 

contamination of CCW and treat it as the hazardous waste it is and protect our communities from this 

harmful dumping process. 

Our region is relied on for energy export. We need EPA to take firm action to regulate the storage of 

CCW and recognize that so-called clean coal technologies and control technologies to reduce air pollution 

when burning coal will result in even more toxic CCW being generated. 

We ask EPA to initiate tribal consultations in our region on the CCW problem, including environmental 

justice oversight responsibilities.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0108-1

Organization1:Greenpeace

Commenter1:Robert Gardner

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.1.2 4.1.4

Comment Excerpt Text:

A hazardous waste designation under Subtitle C of RCRA would ensure that coal ash dumps and waste 

ponds have all the protections currently required at waste landfills. Solid waste permitting -- permits, 

liners, monitoring systems, and leachate collection system make sense, are readily available technologies, 

and can help prevent disproportionately poor communities from being at risk from high hazard dams and 
56

leaking dumps. 

Lax guidelines such as those that would be applied under the weaker Subtitle D regulations will fail to fix 

the problems as the EPA expects that approximately 50 percent of coal ash dumps and waste will not 

clean up under this plan. 

This is exacerbated even worse under the Subtitle D prime option which would not even apply to some of 

the worst, most dangerous dumps and waste ponds in the country.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DEN-0111-1

Organization1:Sierra Club

Commenter1:Randy Martinez

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

The time has come for tougher regulations for coal-fired electrical plants that not only emit toxic carbon 

emissions into the air that each and every one of us breathes, but more importantly the coal combustion 

residuals that are left behind to poison the drinking water, destroy our ecosystems, not to mention 

environmental damages that are unsightly and hazardous for the American citizens who are so unfortunate 

enough to have to live near these man-made calamities. 

This is -- these are unnecessary in this day and age of innovation, and green technology that is at our 

disposal with proper and long awaited legislation hampered by corporate lobbyist firms. 

CCRs are the carcinogens that when placed in the unlined or clay-line ponds have the potential to leak 

into groundwater. Consequently, this contaminated water is consumed by residents in the vicinity of each 

unlined pond and possibly clay-lined ponds in which 60 percent of all ponds in the United States are 

either clay lined or unlined according to data collected by you, the EPA, in the year of 1995. 

Also according to your data, composite liners can dramatically reduce exposure to carcinogens and toxic 

pollutants in the parameters of acceptability. However, the federal government and most states do not 

require any such protective measures. 

Why have decades passed behind us while we have placed CCRs in clay-lined or unlined ponds that kill, 

not to mention leave long-term damages for us and our children, also wildlife and environmental disasters 

for the future generations to deal with? 

The failed climate legislation may set us behind for decades yet to come. You have the power to stop this 

insanity by proposing regulations that will ensure each and every CCR pond is contained in a compositelined apparatus. 

Why are we producing about 129 million tons of coal ash each year and have 600 coal ash dumps and 

waste ponds nationwide with at least 23 states who have contaminated surface water and groundwater due 

to clay-line or unlined ponds? 

Are we not the leaders of this free world? Should we not lead by example and not by hypocrisy? 

I plead with you on behalf of all who breath air, drink water, stop these atrocities and make and enforce 

strict regulations for CCRs to save this generation and one to comes (sic). This is your job to protect us. 

Do it now. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DEN-0120-1

Organization1:

Commenter1:John Foreman
57

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I am speaking in favor of Subtitle C of the proposal. Thankfully I do not live near a coal ash 

impoundment pond. I speak as one who treasures our natural environment and does not want the land and 

water of Colorado or anywhere polluted by deadly toxins. 

As we all know, there are a number of residual waste products called CCRs that are created when coal is 

burned. The coal companies and electric utilities would have us believe that coal ash is harmless like dirt. 

And while the bulk of the material, fly ash, bottom ash, boiler slag, and FGD material, actually has 

beneficial industrial uses, it also contains high levels of deadly toxins, including arsenic, selenium, 

cadmium, lead, and mercury

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0001-2

Organization1:

Commenter1:Steve Scarborough

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 9.6.2

Comment Excerpt Text:

All of their testimony against doing the right thing will boil down to five words: It will cost too much. 

The corporations opposed to Option C argue against having solid federal oversight saying they can be 

trusted to do the right thing. They can't. I come here to speak as strongly as I can for Option C. The --

when I read the EPA cost benefit analysis, I thought, of course. Why not? Why is anyone opposed to this? 

The reason it is is that it makes the people who make the money creating coal ash waste and processing 

coal ash waste will have to pay more of the true cost of coal power instead of as it is now, they shift it to 

the people who live on the shores of Watts Bar Lake in rural Alabama, and even in your personal 

neighborhood. Nobody in this room or anywhere in America can escape the consequences of this 

decision. This stuff is everywhere. 

Roane County is my home. It's the most beautiful part of America. And it's also the site of the largest 

disaster -- coal disaster in American history. This disaster was caused by incompetency, willful 

negligence at mul -- multiple levels, but mainly in the financial decisions of a corporate bureaucracy 

focusing on short-sided cost savings and a complicit state agency that allowed it to operate a massive coal 

storage facility without adequate oversight. 

For a savings of $20 million, they now have a 1.2 billion-dollar clean-up mess. And the people in -- in our 

area can never be made whole. They have taken 2 to 7 years out of their lives, 200 hundred homes plus sit 

empty

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0002-1

Organization1:Southern Alliance for Clean Energy

Commenter1:Steven Smith

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.2.4

Comment Excerpt Text:
58

I was asked to come up and speak before the Environmental Public Works Committee the first week of 

January. Talking to that committee, we -- and the chairman, Chairman Barbara Boxer, she basically said, 

"Look, Lisa Jackson is going to be up. We're going to talk to her during her confirmation hearing." And 

sure enough, two weeks later she was up there, made a commitment to actually do something about coal 

ash once and for all. And it's been long in coming, because we came very close to regulating coal ash 

back in the late 1990s. And O & B, at that time, held it up. O & B this time has delayed the proceedings 

now for over six months as they've wrangled with and been lobbied by those who have a financial interest 

and are willing to put that financial interest above and beyond the health and -- and safety of citizens. 

So what we did was, now that the new ash rules are out, we've actually written a report where we've taken 

a look at what the state of Tennessee, which has basically been ground zero for coal ash. And what we did 

was we saw, what are they doing in the regulations. I want to submit this as part of the record. But the 

bottom line is that under Subtitle D, you defer tremendously to the states. And what we're seeing is the 

states aren't stepping up. 

EPA has a role, has a responsibility to be a backstop. And that's why we are strongly in support of 

Subtitle C, because we need that backstop, we need that agency to make sure that the rules are enforced. 

And if they're not enforced, then what -- what we see is we see these kind of devastation that we saw in 

Oak Ridge -- I mean, in Harriman. 

So we'll submit this as part of the record. My colleague Josh Galperin is going to get into the specifics on 

the report, but I'm here to strongly encourage that Subtitle C be the course. That is the only way that we 

can protect public health and the environment. That's the only way that we can assure that the kind of 

accidents that happened in Harriman will not happen again. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0003-2

Organization1:Southern Alliance for Clean Energy

Commenter1:Josh Galperin

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

The Southern Alliance for Clean Energy strongly supports Subtitle C as the means of regulating coal ash 

because the fed -- federally-enforceable backstop provided by the special waste designation is the only 

way to assure that people and the environment are protected from the physical and toxic dangers of coal 

ash. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0036-1

Organization1:Sierra Club

Commenter1:Lyndsay Moseley

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Sierra Club supports EPA -- the EPA proposal to permanently phase out wet storage impoundments, to 

require groundwater monitoring at all landfills -- existing landfills so that communities can be confident 

that they're not exposed to heavy metals in their water. We support federally-enforceable safeguards at 

every new site. Safeguards like composite liners to prevent coal ash contamination in the first place, 

leachate collection systems to capture toxic runoff, groundwater monitoring to detect problems early, and 
59

financial assurance to ensure polluters clean up in the case of accidents. 

We urge you to adopt these safeguards, we urge you to hold polluters accountable and protect people 

living near coal ash disposal sites. This will take courage and leadership and commitment to the people. 

Please don't let the people down.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0042-1

Organization1:

Commenter1:William Wilson

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

In fact, Subtitle C in its current form is not strong enough to deal with the dangers of coal ash. Subtitle C 

does not require rapid closure of dangerous ash ponds; it does not require a timely investigation of all 

toxic coal ash dumps; it does not require immediate clean up of all contaminated coal ash sites, despite 

the threat to health and the environment from toxic waste; and Subtitle C does not require polluters to 

ensure the healthy air and water of communities near dumps or fill sites. 

I demand that the EPA does its job to protect the health of Americans and take swift and decisive action 

before we see another Kingston disaster. Therefore, I demand the EPA to require under Subtitle C without 

delay that polluters: Immediately shut down all coal ash ponds and unlined landfills; immediately 

investigate all coal ash dump sites; immediately clean up all sites contaminated by coal ash when 

contamination is discovered; immediately determine the nature and extent of exposure of human 

populations to the toxic materials in coal ash, including instituting medical monitoring when the 

contamination is discovered; immediately provide safe drinking water to all impacted communities when 

contamination threatens water supplies; immediately identify all past coal ash dump sites and fill sites and 

investigate these sites for contamination; immediately commence monitoring at all former and operating 

coal ash disposal sites and fill sites; and publicly disclose all monitoring data; install composite liners for 

all expanded and new landfills; eliminate fugitive dust by immediately employing daily cover for all coal 

ash landfills; immediately comply with hazardous material transportation requirements for all shipments; 

immediately cease use of coal ash as fill; test fly ash, bottom ash, slag, bottom ash, FGD sludge using 

EPA's new leach test.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0050-1

Organization1:Tennessee Riverkeeper

Commenter1:Mark Martin

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

The problem with coal ash is obviously that there's just so darn much of it. The -- it extends from the use 

of coal. Coal is hazardous when it's mined environmentally, it's hazardous when it's burned, and it's 

hazardous when it's disposed of. The ultimate solution is to do away with the use of coal. Obviously, 

that's not going to happen right away, so we need to do something with coal ash in the meantime. 

There's no question that ash is hazardous. These poisons should be properly regulated in a Subchapter C 

landfill. There should be composite liners, there should be cradle -- cradle to grave protection. Beneficial 
60

uses sounds like a good idea. It takes some -- a good bit of this material out of landfills. It's good in theory 

only for encapsulated uses. It shouldn't be used as land -- landfill material. It shouldn't be used to build 

golf courses

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0059-1

Organization1:Tennessee Riverkeeper

Commenter1:David Whiteside

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

We are here to ask the EPA to regulate coal ash as hazardous waste under the Federal Resource 

Conservation Recovery Act, Subtitle C. Coal ash can be very hazardous. It can contain arsenic, mercury, 

lead, cadmium, chromium, as well as polyaromatic hydrocarbons, and ur -- and it can contain radioactive 

elements such as uranium.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0065-2

Organization1:Southern Alliance for Clean Energy (spoke as employee and citizen)

Commenter1:Katherine Stokes

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 7.1 9.3.11

Comment Excerpt Text:

What we're talking about today are the wet impoundment ponds or the huge dry landfills of coal ash, the 

type that flooded the land, houses and river of our neighbors in Roane County, Tennessee. This type of 

coal ash that is stored in impoundment ponds or landfills should be regulated by EPA's proposed Subtitle 

C. This ash hasn't been treated and is not your regular household waste as Subtitle D would suggest that it 

is. 

As we witnessed with the TVA coal ash spill, coal ash is not effectively regulated by the state of 

Tennessee. As we've learned from this disaster, the siding and structural stability of these coal ash storage 

impoundments are not regulated. Neither is the potential for these chemicals to penetrate groundwater. 

As we've witnessed, we know the regulations are made as suggestions or guidelines rather than enforced, 

as they would be in Subtitle D, that they are also not followed. EPA estimates Subtitle C could cause a 

0.8% increase in our electricity bills. We need to spend a little bit of money now to regulate coal ash as 

insurance so that we won't see another very expensive, life-destroying and very preventable accident like 

we saw almost two years ago here in Tennessee. 

Our electricity providers aren't afraid of taking risks because the cost is sent down to the customers. We 

are the ones that carry the burden. We're the ones who paid for the clean-up of the Kingston coal ash spill, 

and we need federal backing so that this doesn't happen to us again. 

EPA Sub -- suggested Subtitle C is the best choice for Tennessee's safety, health and wallets. It will save 

us money and distress in the long-run by helping us avoid another disaster.

Response: The Agency acknowledges and appreciates the comment.
61

Comment Number: TRANS-KNX-0068-1

Organization1:

Commenter1:Linda Smithyman

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 4.2.4

Comment Excerpt Text:

Several Kentucky utilities, LG&E's ponds, fall into this category. I used to live in Kentucky for a little 

while. These ash-disposal sites also leak their toxic cargo into ground water or discharge it directly into 

rivers, creeks, and lakes as runoff or through permitted outfalls. Until the EPA takes action, there are no 

federal rules setting standards for the safe disposal of ash or limiting the discharge of toxic ash, leachate, 

into our waterways. We need comprehensive federally-enforceable safeguards to protect human health, 

wildlife, and the environment. 

Coal ash must be regulated under Subtitle C of the Resource Conservation and Recovery Act as special 

waste with all the safeguards that apply. Coal ash should not be regulated under the much weaker --

MR. SOUDERS: Sorry. 

MS. SMITHYMAN: Okay. 

MS. DEVLIN: Okay. Thank you very much. 

MS. SMITHYMAN: -- and less protective standards provided by a Subtitle D designation, as 

nonhazardous waste. 

Regulating coal ash under Subtitle D or RCRA is a busted and broken approach that essentially keeps the 

status quo of voluntary and patchwork protections. Subtitle D guidelines cannot guarantee all citizens 

adequate protections from toxic ash because Subtitle D does not require states to adopt federal guidelines. 

There are currently no federally-enforceable regulations specific to coal ash, and contamination from coal 

ash landfills and wasteponds is already poisoning drinking water supplies and damaging wildlife. such as 

fish and birds, at locations across the country. The last of federally-enforceable safeguards is exactly what 

led to the disaster in Tennessee, which a dam holding more than 1 billion gallons of toxic coal ash failed, 

destroying 300 acres, dozens of homes, killed fish and other wildlife, and poisoned the Emory and Clinch 

Rivers. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0068-2

Organization1:

Commenter1:Linda Smithyman

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Coal ash must be regulated as a "special waste" under Subtitle C of the Resource Conservation and 

Recovery Act (RCRA). The Obama administration needs to rely on the best available science in setting 

federally-enforceable safeguards for coal ash. Regulating coal ash as a special waste gets rid of dangerous 

coal ash waste ponds and ensures another community will not have to experience a disastrous spill such 

as the one that happened in December 2008 at the Tennessee Valley Authority waste pond; we don't want 

another TVA accident. 

Federally-enforceable safeguards must ensure coal ash dumps and waste ponds have all the protections 

presently required at household waste landfills, including solid waste permits, liners, monitoring systems, 

leachate collection systems, corrective action, financial assurance, fugitive dust, suppression, transport 

controls, et cetera. 

Only Subtitle C regulations can guarantee the full panoply of needed protections and the phase- out of 
62

dangerous waste ponds. Lax "guidelines," such as those that would be applied under weaker Subtitle D 

regulations, will fail to fix the problem as EPA expects that a substantial number of coal ash dumps and 

waste ponds - representing approximately 50% of the coal ash in the U.S. - will not clean up under this 

plan. Regulation of coal ash under Subtitle C will increase disposal costs and, thus, provide an incentive 

for greater ash recycling. The costs passed onto the general public will be higher, unfortunately. 

Strong, federally-enforceable standards ensure much greater compliance and, thus, much greater 

likelihood that future spills and disasters - and the costs associated with their cleanup - will be avoided.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0069-1

Organization1:Physicians for Social Responsibility

Commenter1:Barbara Gottlieb

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 6.1.1

Comment Excerpt Text:

Some industry representatives whom we've heard from today have suggested that coal ash is not toxic, 

and that the TVA Kingston spill was somehow not of much consequence to hu -- human health. On behalf 

PSR, I would like to correct that mischaracterization. It may be that coal ash is bound at the molecular 

level in some recycling uses rendering it inert and ho -- harmless. We certainly hope so. But that is not 

what we are dealing with in coal ash in some 2,000 storage sites around the country. What leaches, blows, 

and spills out of storage sites includes arsenic, selenium, cadmium, chroni -- chromium, molybdenum, 

and a long list of other clearly toxic heavy metals. The contamination of people's drinking water wells 

from coal ash waste, as is scientifically documented in the EPAs listing of damage cases, proves in 

scientific terms that coal ash is toxic. 

What I'd like to go focus on today, though, is that the EPA's assessment of coal-ash toxicity is actually 

hindered by errors of methodology and of assumptions. I'd like to raise five issues that actually lead the 

EPA to underestimate coal-ash toxicity. 

First, the EPA's test for measuring leaching is inadequate. The EPA's own Science Advisory Board and 

no less than the National Academy of Sciences have both called on the EPA to replace its leaching test 

with a more modern, more accurate version. When, in 2009, the EPA used a test that accounted for 

additional factors, such as the pH of the ash and field conditions where leaching might take place, 

leaching was shown to be dramatically higher than previously believed. 

Second, the EPA failed to consider the potential for harm from simu -- simultaneous exposure to multiple 

heavy metals. Exposure to several contaminants concurrently can cause synergistic interactions that result 

in a greater risk to health. Concurrent exposures may intensify existing health effects or may give rise to 

new health effects. 

This can happen where different contaminates op -- contaminants operate by a common mechanism of 

toxicity; it can also happen where different contaminants affect the same body organ or system. Both 

scenarios occur with coal-ash toxicants. Unfortunately, the EPA does not take multiple exposures into 

account. The EPA doesn't consider the greater threat to children. The EPA disregards long latency 

periods. Harm to health from coal ash may take years to become evident. This is particularly true of 

cancer which results from damage to cell DNA and mutations in genes. 

Two years, as the case with the TVA spill, is too short a time for this damage to manifest; and thus, it's 

too soon to declare that no such harm was done by the pill. 

Finally, the EPA overlooks the transfer of the problem from Tennessee to Alabama. A full assessment of 

health impacts must consider impacts where the coal ash is eventually disposed. 

For these reasons, PSR strongly supports Subtitle C
63

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0101-1

Organization1:

Commenter1:Mark Quarles

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 4.1.2

Comment Excerpt Text:

I've personally investigated approximately 40 coal combustion waste sites in 12 states within the last ten 

months. Based on my research of actual data and state files, I support the Subtitle C determination 

proposed by EPA. 

My work was recently published in three damage case reports coauthored by the Environmental Integrity 

Project, Sierra Club, Earth Justice, and other technical members and their staff. Subtitle C designation is

needed because the approach proposed by Subtitle D has not worked. 

My research of those 40 sites where states had discretion on design and operational standards and 

groundwater and surface water indicates a failed policy. Of the approximately 40 sites that I've 

investigated, all but one had obvious evidence of groundwater contamination. Clear evidence of 

contamination exists at these sites regardless of the sites being lined or wet -- lined or not, wet or dry, and 

even composite lined dry landfills. 

The industry argues that no harm exists, and that contaminants are not mobile. My experience is there is 

no scientific basis for that conclusion. They base the argument on their belief that no migration occurs. 

Well, they're able to make that argument because states rarely, if ever, require that off-site monitoring 

even be performed even when severe contamination exists at the property line. Industry solution is to 

simply buy the property instead of initiating corrective actions. 

The industry also argues that contaminants are not toxic. My experience is that cannot be further from the 

truth. Coal combustion waste in recycled byproducts contain heavy metals, some of which are known 

carcinogens. 

They make the argument of no toxicity because states oftentimes do not require monitoring programs to 

even include metals. In fact, monitoring programs in the 1980s and '90s were even more stringent than 

they are today, including metals that don't exist in many sites today. Instead, they require secondary 

standards with no human toxicity standards to make the claim of no toxicity. 

The industry argues that the waste is inert. It couldn't be further from the truth. They base it on laboratory 

methods that the EPA's recognized since 2003 does not work. 

In summary, I support the Subtitle C designation because the risks of waste require that designation. 

State-delegated programs have been unsuccessful in regulating coal waste and beneficial reuse. We need 

uniform standards that states must meet or exceed. 

We need closer existing pilements and landfills that are not compose lined within two years. All disposal 

facilities should be required to initiate groundwater and surface water monitoring, and also be subjected to 

rigorous design and corrective actions

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0112-1

Organization1:University of Tennessee

Commenter1:Gregory Button

Commenter Type: Academia

Classification: Substantive

Other Sections: 6.1.1
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Comment Excerpt Text:

As an environmental health researcher who has conducted over three decades of academic research on 

environmental hazards and disasters, including the 2008 TVA ash spill in Kingston, Tennessee fo -- fossil 

fuel plant, I strongly support the EPA's decision to regulate coal ash and urge the EPA to adopt Subtitle C 

option. 

There can be no dispute that coal ash is hazardous and contains numerous toxic chemicals, including 

mercury and lead, as well as other harmful substances. Only junk science would propose otherwise. While 

the coal industry would have us endorse junk science, robust scientific evidence strongly suggests that 

such claims are erroneous. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0112-2

Organization1:University of Tennessee

Commenter1:Gregory Button

Commenter Type: Academia

Classification: Substantive

Other Sections: 4.2.4 7.1

Comment Excerpt Text:

Unless the EPA adopts the above-mentioned option, our nation's citizens and our environment will 

continue to remain vulnerable to the toxicity of coal ash. The TVA ash spill has dramatically and 

tragically demonstrated the failures of relying on a patchwork of state regulation. 

It is imperative that the EPA have direct oversight over the generation of storage, transportation, and the 

disposal of coal ash in order to safeguard the public and the environment. Subtitle D would continue to 

rely on a state-by-state patchwork of regulations, which time and time again has proven to be inadequate. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0151-1

Organization1:Physicians for Social Responsibility

Commenter1:John Rachow

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 6.1.1

Comment Excerpt Text:

Heavy metal toxicity to humans is a (sic) established medical fact. And there is ample evidence of the 

mechanisms by which toxic heavy metals move from dumped coal ash into our soil and water to be taken 

up directly or, in more concentrated form, via the food chain. 

Current management practices vary markedly from state to state resulting in the dis -- disturbing interstate 

transport of coal ash to states where dumping is less strongly regulated. 

I am from Iowa, a state where -- with -- that has become an importer of coal ash for disposal, often in 

open dump sites that were exposed to the two 500-year floods that we've recently had, in Iowa, just 15 

years apart. Run-off enriched in leached heavy metals, certainly makes Iowa a leading contributor to the 

toxic burden on the Mississippi River Watershed to the Dead -- Dead Zone in the Delta and to the 

invaluable Gulf fisheries. 

The cheapest, easiest methods of disposal are chosen by industry. In fact, industry even touts the 

beneficial uses of coal ash where benefits accrue to the industry, but at the same time, failing to accept 

responsibility. 
65

The health costs of mishandling of coal ash are clear. The safety of so-called beneficial uses of coal ash 

are unproved. 

Coal ash does not pose a -- a health risk in just an individual state, it is not just an interstate health issue, it 

is a grave national problem. Failure to safely, responsibly manage coal ash with the obvious consequences 

for human health is a growing national threat that requires federal regulation.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0171-1

Organization1:

Commenter1:William Smith

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 9.2.3

Comment Excerpt Text:

My name is William Smith. I'm from Murfreesboro, Tennessee. But I have a lot of family in the 

Appalachian area, in east Tennessee and Virginia and North Carolina and South Carolina, and their water 

supply, as the years go by is getting more and more toxic. 

As has been made very obvious by the Harriman County spill, current regulation on coal ash storage is 

not enough. We need tighter regulation. 

But I see a worse problem. And I would even go as far as to call it a crime. And that is an environmental 

justice problem. Nearly half of the high azard -- high hazard ash ponds in the southeast are described by 

the EPA as high hazard are in low-income areas. 

Another environmental crime I see is that the ash from the Harriman County spill is being moved to Per --

Perry County, Alabama, which is another low income and predominantly African-American community. 

The water in that community is so full of arsenic that it contains 80 times the safe amount for drinking 

water. Cancer, COPD, other respiratory illnesses, neurological damage, reproductive problems are the 

legacy that we're leaving our children right now. I'm a young person and I care about my future. I don't 

want to leave that legacy. 

So support Subtitle C. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0191-1

Organization1:Environmental Integrity Project

Commenter1:Sam Flenner

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 8.5

Comment Excerpt Text:

I really wasn't planning to testify here but I'm just going to sort of wing it because there's just one thing 

that I think needs to be made very clear. The people that came and testified from the Mount Carmel area, 

including people from east Mount Carmel or Princeton area, Duke Energy ran municipal water out to a 

number of people because it was clear that they contaminated their wells. They had to stop fishing in the 

pond that they had, and that's when they started the dry landfill. 

There are several other neighbors down the highway from where they ran water to, their wells are, we 

believe, contaminated. We don't have the means to do the testing at this point in time. We're trying to 

raise the means so that we can make this further than hearsay. 

This is the reason why we need Subtitle C. We need somebody other than the Indiana state regulatory 
66

regulators who will not do anything about this. 

Duke will not do anything about this. And, in fact, one person who had a lawsuit and dropped it against 

Duke, who owns a bait shop that is in east Mount Carmel, has constantly told us, as we've asked him to 

testify, "You can't beat Duke. Duke's got the politicians bought." And, you know -- and this is just they 

way people are. The apathy is just absolutely terrible. 

Now we go to Mount Carmel, across the river, to look for some support. Larry here, his wife was ill 

today, she was going to come and speak. She speaks a little bit better. But he just handed in 250 petitions 

from people in Mount Carmel who asked their city council to pass a resolution and -- endorsing Subtitle 

C. And they didn't. And I've heard rumors as to why they didn't but it's hearsay, so I really can't testify to 

it with any accuracy. 

But, you know, one person who told us he was going to come here and then didn't come here, though, told 

us the -- that Duke's outreach is very, very and deep. 

And so we had somebody here who told us he was going testify, then for some reason, because of Duke's 

influence in the area there, decided not to testify. 

So, this is -- this is why I'm testifying today. I know there's just a little bit of time left. But without 

Subtitle C, without federal enforceability, without the federal government being able to say, yes, you will 

go out and see that these, you know -- that you will do the testing, that you will document and make --

and -- and make explicit or transparent what's going on, thi -- it's not going to happen. And the Indiana's 

regulatory commission, they're not going to do anything. If the EPA doesn't do it, then the number of 

damage cases will continue to rise. 

There's a huge cancer cluster in Mount Carmel right now. And, again, we have to get more 

documentation. It's there. It's just going to take some time. 

Thank you. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0017-2

Organization1:Presbyterian Church (U.S.A.)

Commenter1:Katie Holmes

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Comment Excerpt Text:

The Presbyterian Church (U.S.A.) asks that the EPA adopt Subtitle C, which designates coal ash as a 

toxic substance and creates federably (sic) enforceable regulations to ensure greater protection for 

communities and water supplies. With these stronger regulations, we will be protecting all of God's 

creation from the harmful effects of arsenic, lead, and other chemicals found in coal ash.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0036-2

Organization1:

Commenter1:Rick Clewett

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 4.1.2

Comment Excerpt Text:

It's important that EPA adopt the Subtitle C proposal rather than Subtitle D or D Prime proposal in order 

to deal adequately with the health hazards currently created by coal combustion waste generated by 

electric utilities and independent power producers. 
67

Under Pre -- Proposal D Prime, "existing surface impoundments would not have to close or install 

composite liners but could continue to operate for their useful life," end quote. Given that EPA has found 

that coal combustion waste expose the public to various serious risk, it would be unconscionable to allow 

existing coal waste ponds to operate -- continue operating as they have been. 

Proposal D would not require, quotes, "permits nor could EPA enforce the requirements. Instead, states 

and citizens would en -- could enforce the requirements under RCRA citizen authority. The states could 

also enforce any state regulation under their independent state enforcement authority," quote. Leaving the 

burden of in -- initiating enforcement actions to state agencies and citizens would be an abrogation of 

EPA's duty to protect the environment and the public.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0088-2

Organization1:League of Women Voters

Commenter1:Joan Lindop

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 12.1.1.6

Comment Excerpt Text:

The League of Women Voters urges the EPA to adopt the proposed Subtitle C regulations that classify 

coal ash as hazardous. Subtitle C must not exempt deep and surface mining. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0099-1

Organization1:Greenpeace USA

Commenter1:Robert Gardner

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

I'm here today to support your efforts to create a federal minimum coal ash disposal standard. Coal ash 

must be treated as hazardous under Subtitle C of RCRA. 

I'm here representing our millions of members worldwide saying that coal ash is hazardous, and a stateby-state enforcement is just not enough. We need federal guarantees to ensure that dangerous coal ash 

isn't just shipped to the state with the most lax regulatory scheme. 

Sound science res -- supports the special waste designation. Coal ash waste contains arsenic, lead, and 

mercury, among other toxic heavy metals. These dangerous elements cause cancer, organ disease, 

respiratory illness, and neurological damage. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0099-3

Organization1:Greenpeace USA

Commenter1:Robert Gardner

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:
68

A hazardous waste designation under Subtitle C of RCRA would ensure that coal ash dumps and waste 

ponds have all the protections currently required at waste land fi -- landfills. This should be the option the 

EPA embraces to protect people and not polluting industry.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0118-1

Organization1:Environmental Integrity Project

Commenter1:Jeff Stant

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 10.5.4

Comment Excerpt Text:

We want there to be much more recycling of coal ash in America, which is precisely why we want the 

regulation of coal ash to occur under Subtitle C of RCRA, and urge the EPA to take that action. 

I'm -- I'm here to talk -- to respond to some -- a number of claims made previously about the beneficial 

impacts and the lack of any adverse impacts from the use of one component of coal combustion waste, 

flue gas desulfurization gypsum, a small component now, but it's a burgeoning part of the -- of the CCW 

waste stream we expect in the future. 

We've heard no data presented in any of these statements or even sum -- or summarized in the Chicago 

hearing, where most of them were made, to support these contentions, and have yet to see a single set of 

data that credibly demonstrates no adverse impacts to surface waters from the use of gypsum in 

agriculture, and are unaware of any that EPA has been reviewing. 

We're aware of recent leaching test data on 20 FGD gypsums, on the other hand, evaluated by US EPA's 

Office of Research and Development in it -- in its report, where a -- a -- test method that -- with greatly 

improved capability to predict the leaching behavior of gypsum in the -- in the environment was -- was 

used on them. 

When it was, these FGD gypsums were found to leach selenium at up to 1600 micrograms per liter. That's 

16 times over the threshold for hazardous waste. They leached thallium at 1100 micrograms per liter. 

That's 550 times higher than the primary drinking water standard; cadmium at 375 micrograms per liter, 

74 times higher than the primary drinking water standard; arsenic at up to 1200 micrograms per liter, 120 

times higher than the primary drinking water standard; and antimony at up to 330 micrograms per liter, 55 

times higher than the primary drinking water standard. 

They also leached molybdenum and boron at 45 times over their -- their federal health advisories for -- for 

those substances in drinking water. 

The potential for FGD gypsum is to leach high concentrations of metals and other constituents at disposal 

sites ap -- is appearing to be also borne out by leachate and monitoring data at several CCW sites and the 

reports that we've presented to EPA this year. 

Ground water under the gypsum storage area at the Big Ben plant in Tampa, Florida has had boron 

concentrations 40 times the state's standard; iron, 66 times the standard; manganese, 11 times; sulfate, 4 

times; and TDS, 5 times. Arsenic and thallium under other FGD disposal units at that site are at 11 and 8 

times higher than -- than their drinking water standards. 

The Caledonia landfill in southeast Wisconsin has had molybdenum at levels up to 375 times over the 

federal health advisory. You have drinking water wells contaminated there with molybdenum, as well.

Therefore, with this kind of evidence -- there's also two Kentucky sites that have gypsum that have 

arsenic problems. 

We would urge EPA not to -- to -- to take gypsum out of this regulation and to designate it as a -- a -- a 

special waste or a hazardous waste under Subtitle C of RCRA

Response: The Agency acknowledges and appreciates the comment.
69

Comment Number: TRANS-LVL-0141-2

Organization1:Citizens Coal Council

Commenter1:Brian Wright

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

While I do support recycling in the forums of en -- when it's encapsulated, used in products such as 

concrete, I feel that Subtitle C regulations are needed to adequately protect human health and the 

environment and would point out that, while there's been a lot of statements today that it would harm 

recycling efforts to regulate under Subtitle C, EPA's own website has numerous examples of hazardous 

materials that are recycled on a regular basis. Subtitle C regulations must be implemented for these wastes

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0145-1

Organization1:

Commenter1:Barbara McKasson

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

The U.S. EPA must implement Subtitle C to stop this rapid spread of coal ash toxins into our water, land 

and air that is endangering public health.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0152-3

Organization1:

Commenter1:Steve Wilkins

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

The EPA must adopt Subtitle C and must have primary oversight in Kentucky

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0179-1

Organization1:

Commenter1:Fred Fischer

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 7.1

Comment Excerpt Text:

I've spent 44 years in the construction industry, built all the sewers and streets in the central business 

district here, supervised the foundation of a 41-story building, the First National Bank building, and have 

supervised over 1,000 home -- homes and apartments. So, when I read several months ago about the 

details of the acreage, the depth and the liner in the coal ash pond, I was amazed and appalled. I know that 
70

we can't, for instance, design flood walls for 500 years, but liners are -- they're -- it's going to leak. It's 

only a matter of time before it gets punctured by something or it wears out. 

So, that said, our west end -- and again, I -- I agree because the west end is where the poor people are, it's 

where industry has set up shop. Lot of us believe anecdotally that there's a lot more cancer in our west end 

than there is in the rest of the community, and we can't afford more. 

Another citizen said something to the effect that Kentucky was bought and paid for by coal. I don't know 

about the whole state. I certainly know some politicians who aren't. I think the people who oversee the 

coal industry pretty well are. Because of that, I ask you to please institute Subtitle C. Let the feds do the 

job right, because Kentucky hasn't and won't

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-PIT-0003-2

Organization1:Mountain Watershed Association

Commenter1:Beverly Braverman

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.1.2

Comment Excerpt Text:

I urge you to accept C not D. A recently released report entitled Coal Ash, the Toxic Threat to our Health 

and Our Environment, states with certainty that casual disposal of coal ash as a benign substance has 

already had a frightening impact on human health and the environment. 

I'm appending it to my comments and I'm urging you to take the time to read them. 

The most frightening statement in this report is, quote, given the high toxicity of coal ash's constituents, 

the growing number of proven and potential damage cases and the prospect of more damage cases 

emerging as toxicants reaches peak concentration in the coming years. The magnitude of coal ash as a 

threat to human health is likely only beginning to emerge. 

It's time to accept reality. Coal ash must be regulated under Subtitle C, a special waste falling within the 

characterization of hazardous waste. 

Why should it be regulated as such? Why should it be regulated under Subtitle C and not D? Because it is 

hazardous to human and environmental health, to our water and to our air. If the first gentleman's 

assertions are all true, that they could do these things and are already doing a lot of them, why are we 

seeing such impact, such negative impacts to our human health? 

Without federal minimum standards, Pennsylvania has become a dumping ground for coal ash in the 

name of mine filling, beneficial use, and any other justification for improper and inexpensive handling 

thought out by the coal and energy industries and embraced by our agencies. 

For years coal communities have been used as science projects. Without sound science and without the 

controls, would normally implement for a well thought out experiment using lab rats. We are not lab rats, 

and we want protection.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-PIT-0022-1

Organization1:Group Against Smog and Pollution

Commenter1:Jamin Bogi

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 6.1.2 6.1.1

Comment Excerpt Text:
71

I work for the Group Against Smog and Pollution, or GASP, a nonprofit environmental organization 

based here in Pittsburgh. GASP strongly supports regulating coal combustion residuals under Subtitle C 

of the Resource Conservation and Recovery Act. CCRs are currently exempt under an amendment to 

RCRA, but EPA's new leach tests show that current storage methods of CCRs often lead to their leaching 

in concentrations that exceed hazardous waste thresholds many times over. It makes no sense to weakly 

regulate such toxic material.

Human beings did not create coal. We did not choose its chemical makeup. We have to take what Mother 

Nature has given us. Unfortunately, she saw fit to include arsenic, exposure to which causes nausea, 

arrhythmias, several types of cancer, cardiovascular disease, and even death at high-enough doses. EPA's 

2009 study report of leachate found arsenic levels 1,800 times higher than the federal drinking water 

standard, and three times the level of the hazardous waste standard. Nature has put selenium in coal as 

well. Selenium over-exposure in animals leads to impaired vision, paralysis, and death. Selenium 

bioaccumulates and causes deformations in fish and amphibians. It has wiped out entire fish populations 

in some locations. The EPA's report found selenium in leachate at levels 29 times the hazardous waste 

threshold. 29 times.

I'll stop my chemical analysis here, because I know that nothing that I could possibly say would be news 

to you. The EPA has conducted such an impressive amount of research on this topic that one could spend 

a decade or two mastering it.

Response: The Agency acknowledges and appreciates the comment.

Section 3.1.2 - Against Subtitle C proposal

Total Number of Submissions: 795

Total Number of Comments: 1062

Comment Number: TRANS-ARL-0001-3

Organization1:American Road and Transportation Builders Association

Commenter1:Nick Goldstein

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

In order to preserve all of the benefits that recycled coal ash has provided to the transportation sector and 

the environment, ARTBA urges EPA not to regulate coal ash as a hazardous waste. On at least four 

separate occasions -- in 1988, 1993, 1999, and 2000 -- EPA has found coal ash did not warrant regulation 

as a hazardous waste. There's been no new scientific information since the last time this issue was 

broached to warrant reaching a different conclusion now.

Every element of the transportation construction process, from the suppliers of concrete to the contractors 

who handle constructions materials, would be affected by the stigma of a hazardous waste label for coal 

ash. Specifically, because of the increased expense of handling a hazardous waste, producers of coal ash 

would be resistant to continue providing it to concrete manufacturers.

Ultimately, without coal ash, concrete will become more expensive and less durable. This will not only 

increase the environmental footprint of the transportation sector because more concrete production will be 

necessary, but it will also increase the overall cost of transportation projects to the public.

Response: The Agency acknowledges and appreciates the comment.
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Comment Number: TRANS-ARL-0003-1

Organization1:National Rural Electric Cooperative Association

Commenter1:James Stine

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 9.2.2.1

Comment Excerpt Text:

On the other hand, NRECA is strongly opposed to using the Subtitle C approach. EPA can obtain a higher 

level of protection for human health and the environment without resorting to the unnecessary and 

extreme measure of regulating CCRs under records hazardous waste rules. In fact, Congress has given 

EPA guidance on how to proceed in cases like this when they have different regulatory options before 

them and both options receive essentially the same result. In cases where small businesses like co-ops are 

affected, EPA is obliged to pursue the least costly approach in order to mitigate impacts in the firms that 

can least afford them. 

Moreover, Congress made clear in enacting the Bevill amendment, under which this decision is being 

made, that EPA should avoid the Subtitle C option if at all possible. The proposed controls for CCRs are 

virtually identical -- under C and D the proposed controls -- and they would be expected to provide the 

same increased levels of protection. However, all the other requirements and consequences that would 

come with regulating coal ash under hazardous waste rules would likely cripple coal ash beneficial use 

and impose unnecessary regulatory costs on power plants, threatening jobs and increasing electricity 

rates. 

Co-op systems are relatively small, and by regulation they're not allowed to maintain large capital 

reserves. When the cost for running their businesses suddenly increase, like they would under Subtitle C, 

cooperatives must go directly to their lenders. There is no cushion to mitigate the increases and the costs 

of new loans to be shared directly by each co-op member.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0004-1

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.2.4 10.4.3

Comment Excerpt Text:

Coal ash recycling can be done safely and effectively, and it creates significant benefits: Environmental 

benefits, improved product performance benefits, and economic benefits. 

Citizens for Recycling First supports stronger regulation of coal ash disposal and does not object to 

federal enforcement authority over that program. But if getting federal enforcement authority requires 

designating coal ash a hazardous waste in any setting, the effects on recycling in the United States will be 

decimating. 

The hazardous waste stigma is real. A hazardous waste stigma presents significant barriers at every step 

of the chain, from the people who generate coal ash to the people who specify its use to the people who 

incorporate it in products, right down to the end-use consumers. How many people want to have 

something that's called hazardous waste somewhere else in their home or their school or their driveway or 

their roads or many of the places that we can use this material productively? 

While we appreciate EPA's statements that the Agency continues to support beneficial use, actions like 

creating the new label of "special waste" are not helpful in shielding the users from the potential liabilities 

of this. And actions like shutting down the coal combustion products partnership are actually having a 

detrimental effect to the recycling industry today well in advance of the conclusion of this rule. 
73

If the goal of this rulemaking is to protect the environment, then EPA should pursue policies that 

encourage more safe and effective recycling of coal ash as a preferred alternative to disposal. That means 

that we cannot use Subtitle C as a vehicle to promulgate those rules. 

Speaking for more than 1,500 citizens who care about the environment, please do not use Subtitle C as the 

way to enact these rules. We can improve disposal regulations in this country without destroying an 

industry that creates real benefits for our environment. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0010-1

Organization1:National Ready Mixed Concrete Association

Commenter1:Karthik Obla

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

Based on the concrete industry's extensive use of and reliance on fly ash in concrete and our examining 

EPA's proposed rule, we have (inaudible) RCRA Subtitle C designation for CCRs' burn for disposal. 

Well-written exemptions for beneficial use will lead to the following unintended consequences for the 

concrete industry. 

One, an increase in production costs in the course of production. 

Two, an increase in potential liability for concrete producers. Currently the regulatory status of small 

amounts of fly ash in the waste streams from concrete production and construction is unclear. Any 

proposed rule should explicitly state that such waste streams from the concrete industry are exempt and 

not subject to such regulations. There will also be litigation which will target existing structures built with 

fly ash concrete. 

Three, potentially stricter state laws impacting beneficial use. For example, a proposed rule in the state of 

Maryland states that any product containing fly ash is to be disposed of in a special facility authorized to 

accept fly ash. Most states will establish similar laws. 

Four, the potential elimination of fly ash concrete. A hazardous waste stigma and fear of liability will 

drive specifying engineers, architects, and end-users to disallow the use of fly ash in concrete. For 

example, the Los Angeles Unified School District has banned the use of fly ash until the EPA has 

finalized its position. 

Five, there will be a drastic impact on the durability of our nation's infrastructure.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0011-2

Organization1:Virginia Department of Environmental Quality

Commenter1:Jeffery Steers

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

We are especially concerned with EPA's proposal to regulate this material as a hazardous waste under the 

RCRA Subtitle C. The EPA asserts that such treatment is necessary for EPA in order to retain and 

exercise appropriate enforcement authority. States like Virginia have consistently demonstrated the ability 

to conduct an effective and comprehensive RCRA compliance and enforcement program, as is illustrated 

in EPA's own feedback to the State of Virginia during the state review framework process. 
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We would remind you that EPA does have broad RCRA enforcement authority to address potential 

substantial threats or endangerments to human health and the environment for releases of solid waste. The 

proposed regulatory scheme is counter to the intent and spirit of the federal RCRA statute inasmuch as it 

is contrary to the hierarchy of resource conservation, that is, to reduce, reuse, and recycle. There are 

problems with EPA's proposals to regulate CCR under Subtitle C and to some extent Subtitle D. I am 

focusing my comments on the Subtitle C proposal. 

Although EPA's proposal to regulate CCRs as a hazardous waste under Subtitle C, EPA is not calling 

CCRs a hazardous waste and indeed there is no data to suggest otherwise. Further, EPA itself over the 

years has determined that CCRs do not merit hazardous waste regulation, and by creating a new S code of 

special hazardous waste is effectively expanding its authority to designate any waste as hazardous 

whenever it desires with no regard to the appropriate characterization of the waste or the ability of states 

to effectively deal with waste within its state borders. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0027-1

Organization1:Charah Incorporated

Commenter1:Danny Gray

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.4

Comment Excerpt Text:

Our company is very active in the recycling of coal combustion products that are derived from coal ash. 

We have invested substantial efforts and capital in expanding the beneficial use of CCPs, and we look 

forward to continued growth in one of the most successful recycling industries that operates in the United 

States. 

A successful recycling program provides tremendous benefits for the environment and improvements to 

construction materials, which are acknowledged by the scientific community, the construction industry, 

and EPA. Charah supports EPA's efforts to implement regulations to avoid structural failures of 

impoundments and require added safeguards for design and operation of CCR receiving ponds and 

landfills. 

We believe that the protective features are appropriate under Subtitle D and will provide -- and that will 

provide for disposal of CCRs in a manner that is consistent with the nature of the CCR materials requiring 

disposal. 

We take particular note of the fact that the environmental protective features proposed under the CCR 

landfills under Subtitle C, a regulation approach, and the Subtitle D alternates are essentially the same. 

Therefore, we believe that a Subtitle D regulatory program provides the necessary protection and is the 

only choice that will avoid damage to the recycling industry. 

Maintaining the success of the CCP recycling industry is in the best interest of all members of our society. 

We do not believe that regulation of CCRs under Subtitle C can occur without damaging the recycling 

industry. We as a company have already experienced customer loss associated with the proliferation of 

news coverage inappropriately referring to coal ash as a hazardous or toxic material. Our experience with 

the stigma impacts of the proposed labeling of CCR as a special waste under Subtitle C indicates that 

recycling will decrease the valuable resources -- will decrease recycling and valuable resources will be 

disposed of instead of beneficially used to save virgin materials. EPA's assumption that Subtitle C will 

result in an increase in beneficial use is contrary to our experience. 

In summary, our company has been involved in the management of CCRs and the beneficial use of CCPs 

for many years. The proposed regulations under C and D essentially have the same protective features for 

disposal. Therefore, we believe that taking the risk to damage the CCP recycling beneficial use industry 

from a Subtitle C approach is not warranted.
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As for the impact of stigma, we -- I can tell you firsthand that in the loss of customers who've said they 

would love to use our material, it makes their products better, but they have to switch because of the 

hazardous labeling

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0029-3

Organization1:Utility Solid Waste Activities Group

Commenter1:Pam Faggert

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Finally, I want to touch briefly on our opposition to Subtitle C. We agree with the views of a bipartisan 

group of 165 members of Congress, 45 U.S. Senators, and virtually all the states that believe that 

regulating CCRs under RCRA's hazardous waste program is simply regulatory overkill and, in fact, 

would be counterproductive because it would cripple the CCR beneficial use industry. There is simply no 

reason to pursue this approach when the Subtitle D prime option offers the same degree of protection 

without the attendant risks and burdens of Subtitle C

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0055-2

Organization1:SEFA Group

Commenter1:Hank Keiper

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.1.1

Comment Excerpt Text:

I strongly oppose the Subtitle C designation for coal combustion products. In 2006, I personally recycled 

168,000 tons of fly ash and bottom ash generated by my utility partner, Myriad. That's more than all the 

recycled material delivered by the residents of Arlington County in 2006. But I need to discuss stigma.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0058-5

Organization1:PPL Corporation

Commenter1:Craig Shamory

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.3

Comment Excerpt Text:

PPL strongly opposes federal Subtitle C regulation and instead requests that EPA regulate CCRs under 

the Subtitle D prime option including a modification that integrates with current state regulatory programs 

such as Pennsylvania's residual waste and dam safety regulations. This approach will create a reasonable 

and effective regulatory program that protects the environment, retains options for beneficial use and 

preserves jobs while not adversely impacting our economy.

Response: The Agency acknowledges and appreciates the comment.
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Comment Number: TRANS-ARL-0062-2

Organization1:Old Dominion Electric Cooperative

Commenter1:David Smith

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

In conclusion, we agree with NRECA and many others who are already on record as opposing Subtitle C 

approach, including a bipartisan of 165 members of Congress, 45 U.S. Senators, virtually all states, other 

federal agencies and municipal and local governments, CCR marketers beneficial users' unions, state 

PUCs and many other third parties.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0074-5

Organization1:ARIPPA

Commenter1:Jeff A. McNelly

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

EPA should consider the negative implications of classifying all coal ash as hazardous. One, the CFB ash 

will not likely meet encapsulation recycling use standards. Two, industry ash management costs will 

increase by more than 31 times, exceeding revenue by $40 to $50 per megawatt hour. Our industry would 

operate at a loss. Accordingly, it would cease to exist. Thousands of workers will become unemployed. 

Ten percent of our region's electric energy will be gone. Land/stream reclamation benefits which to date 

include thousands of acres and hundreds of miles of streams will vanish. 

In summary, we are aware that certain special interest groups have lobbied their opinion that classifying 

coal ash as hazardous will increase beneficial uses

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0098-2

Organization1:American Coal Ash Association

Commenter1:Mark Bryant

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Please abandon the effort to regulate CCRs under RCRA Subtitle C, as the science doesn't support it. 

Instead, a Subtitle D approach will accomplish everything that is technically necessary to properly 

manage these materials when stored, recycled, beneficially used, or disposed. The evidence of gaining 

federal -- the expedience of gaining federal enforcement authority under RCRA Subtitle C is flawed 

public policy. RCRA Subtitle D, amended if necessary, is technically sufficient

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0104-1

Organization1:National Association of Manufacturers
77

Commenter1:Alicia Oman

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The NAM strongly opposes the regulation of CCRs as a special listed waste under Subtitle C of RCRA. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0117-1

Organization1:Union for Jobs and the Environment

Commenter1:Bill Cunningham

Commenter Type: Union

Classification: Substantive

Comment Excerpt Text:

Unions for Jobs in the Environment is opposed to the regulation of CCRs under Subtitle C of RCRA. The 

nature of CCRs does not warrant regulation as a hazardous waste and we believe that such regulation 

would hinder the recycling programs that greatly reduce the need for and the costs of disposal. Either of 

the two proposals by EPA would regulate for the first time CCRs under RCRA instead of leaving 

regulation to state authorities. Under both proposals, EPA would establish dam safety requirements to 

address the kind of environmental damage that occurred at Kingston. Both proposals would require 

multilayer liners for impoundments as well as landfills and require ground water monitoring to detect 

contamination. 

Under Subpart D of RCRA, facilities would be subject to location standards and there would be corrective 

action standards for releases from the facility. Closure and post-closure care requirements would be put 

forth to address the stability of service impoundments.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0119-3

Organization1:

Commenter1:Jim Rohrbach

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

With no apparent technical basis that I can see to the Subtitle C hazardous approach, will result in tens of 

millions of tons of coal ash to be uselessly disposed of annually along with the other environmental 

problems associated with disposal. I, therefore, urge that the states be allowed to continue their regulation 

of coal ash under Subtitle D, thereby allowing the continuation of the important role of coal reuse without 

the erroneous and needless designation as a Subtitle C hazardous material. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-ARL-0125-2

Organization1:

Commenter1:Jonathan Barker

Commenter Type: Private Citizen
78

Classification: Substantive

Comment Excerpt Text:

We have no problem with strict regulations as far as disposal is concerned. I completely disagree with 

going to Subtitle C versus Subtitle D because there is no technical merit to doing that. Otherwise, it's 

either hazardous or it's not. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0017-3

Organization1:We Energies

Commenter1:Art Covi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

We emphasize the fact that CCPs have been repeatedly reviewed for the purpose of determining the 

proper way of regulating them and have not been found to be a hazardous waste. We believe that Subtitle 

C would be a mistake and would compromise other environmental priorities such as greenhouse gas 

reduction and resource conservation.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0018-1

Organization1:ALCOA Power Generating, Inc.

Commenter1:Scott Darling

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

Alcoa believes the use of the Subtitle C approach for regulating CCRs is unwarranted. The use of a 

modified TCLP to model and then justify the designations of CCR is not indicative of actual releases and 

certainly not from the releases of the ashes generated by ALCOA. Test data of our surface impoundments, 

both closed and opened, do indicate that it is not a hazardous material. This data was generated as part of 

a comprehensive RCRA RFI and that RFI clearly shows there is no detection of any contaminants of 

concerns in the groundwater

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0022-2

Organization1:MidAmerican Energy Holdings Company on behalf of MidAmerican Energy Company

Commenter1:Cathy Woolums

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

MidAmerican strongly opposes the regulation of CRRs under RCRA Subtitle C. 

I urge EPA to consider the facts and rely upon sound science when determining appropriate regulatory 

scheme for coal combustion residuals, not fear and rhetoric. 

One of MidAmerican's facilities was recently highlighted as a so-called new documented damage site in a 
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report entitled "In Harm's Way." I think you all know the report. The report and commentary provided 

during a press conference suggested that MidAmerican's ash disposal facilities are contaminating 

groundwater with arsenic, and that we are "poisoning the workers at the plant" with the drinking water 

supply. 

Nothing could be farther from the truth. Our sampling of surface water and drinking water wells in the 

vicinity of the plant and the ash disposal facilities demonstrate that levels of arsenic were either not 

detectable or were well below the federal drinking water standards. Further, none of the plant drinking 

water sampling results exceeded the drinking water standards for arsenic, and the levels in fact were not 

detectable. 

MidAmerican has concerns about the thoroughness of the information being utilized to generate interest 

and concern in the regulatory docket and cautions EPA to reject a one-size-fits-all approach to what they 

believe would be an overly restrictive regulatory scheme without consideration of site-specific risks. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0047-2

Organization1:American Concrete Pavement Association

Commenter1:Randell Riley

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

EPA is considering unwarranted changes in regulations that would reclassify fly ash as a hazardous waste 

under the Resource Conservation Recovery Act Subtitle C approach. We believe this is a knee-jerk 

reaction to the unfortunate failure of the impoundment retaining wall in Kingston, Tennessee. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0058-1

Organization1:Indianapolis Power & Light

Commenter1:Dana Meier

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

First and foremost, I'd like to start by stating that we're strongly opposed to the regulation of CCRs under 

the RCRA Subtitle C hazardous waste program. Subtitle C imposes additional cost with no commensurate 

environmental benefits. Regulating CCRs as a hazardous waste will subject IPL and its customers to a 

major expense, potentially several hundreds of millions of dollars. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0066-3

Organization1:Utility Solid Waste Activities Group

Commenter1:Jim Roewer

Commenter Type: Trade Association
80

Classification: Substantive

Comment Excerpt Text:

We agree that steps must be taken to prevent accidents like that which occurred at TVA's Kingston 

facility from happening again. Even EPA has found that the coal ash being recovered from that site can be 

safely disposed of in a RCRA Subtitle D non-hazardous waste facility. In other words, the coal ash from 

the accident that really was the impetus for this rulemaking is, with EPA's explicit approval, being safely 

disposed of in a Subtitle D non-hazardous waste facility. 

USWAG supports the development of federally enforceable Subtitle D regulations for coal ash, 

regulations that would include groundwater monitoring, groundwater protection standards, and safety and 

dam integrity standards to protect the environment and help ensure that coal ash releases like that which 

occurred at TVA don't happen again. The record is clear, Subtitle C regulation of coal ash, the most 

burdensome and costly option available to EPA, is simply neither warranted or necessary

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0101-3

Organization1:Dynegy Midwest Generation

Commenter1:Jeff Ferry

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.1 4.1.3

Comment Excerpt Text:

On the other hand, a Subtitle D or D Prime approach would create an environmentally protective program 

for coal ash disposal without destroying these beneficial reuse options or imposing unnecessary 

compliance cost upon power plant operators that will eventually appear as higher price for concrete, 

electricity, or other products. DMG opposes the Subtitle C option and agrees with others to support the 

Subtitle D or D Prime options that will provide environmental options without additional waste, increased 

cost, and the stigmas associated with hazardous ash.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0130-1

Organization1:Boral Composites, Inc.

Commenter1:Tom Zimmerman

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

A large part of our product utilizes a specific coal combustion residue or CCR. This offers our product an 

enhanced performance as well as a green content. We utilize the CCRs as rapidly renewable materials and 

recycled content. 

Our customers are not typically scientists or environmental policy makers. They will likely not be aware 

that the EPA has formally encouraged the use of CCRs since 1983, or that the EPA has twice ruled that 

CCRs are non- hazardous, going so far as to form the Coal Combustion Products Partnership in 2003, or 

that the USGBC, US Green Building Council, American Society for Testing and Materials (ASTM) or the 

American Concrete Institute all endorse and encourage the use of CCRs. Unfortunately, our customers are 

more likely to hear inaccurate information about CCRs and that their beneficial uses are from uninformed 

or biased media sources, negative stigmas that will not only exacerbate with unwarranted changes -- I 

hate speaking in public -- designated Subtitle C.
81

We currently support the EPA's effort to protect human health and the environment. We further believe 

that CCR disposal should be done in a responsible manner to avoid ash spills like the tragic storage 

failure at the TVA's Kingston, Tennessee plant in December 2008. However, poor storage facilities or 

mishandling of designated non- hazardous materials should not be grounds for changing the classification 

of the material itself, therefore jeopardizing one of the most successful recycling programs in the US 

history. 

Boral Composites is only a small startup business but a great example of green-tech, advanced 

manufacturing opportunities that our economy desperately needs. As I mentioned, last Thursday we broke 

ground on our LEED facility going into North Carolina. It's a $13 million investment on close to four 

acres of land. This facility will create 25 jobs when completely built out, in addition to supporting another 

25 sales shops across the country. 

The decision that the EPA makes around CCR classification will directly impact this new green-tech 

business, these new job opportunities and future job opportunities that this business would create. The 

negative stigma associated with hazardous classification through Subtitle C is real and will virtually 

eliminate demand for these products and our business overnight. We want to find a more responsible way 

to deal with CCR storage and storage issues that the Kingston, Tennessee plant has brought to light. 

Subtitle C is not the answer

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0131-2

Organization1:Iowa Utility Association

Commenter1:Mark Douglas

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

We would, however, express our opposition to regulation of CCRs under the Subtitle C hazardous 

program. 

In 2000, the EPA evaluated and resolved the issues of whether CCR should be regulated as hazardous 

waste. In the year 2000, the EPA issued a final regulatory determination that CCR does not warrant 

hazardous waste regulation, concluding instead that Subtitle D regulations are "the most appropriate 

mechanism for ensuring that these wastes disposed of in landfills and surface impoundments are managed 

safely." 

This position is also supported by state regulatory agencies that have to date weighed in on this issue and 

oppose the regulation of CCR as hazardous waste. These state agencies make the compelling case that 

Subtitle C regulation of CCR is unnecessary as CCR does not exhibit hazardous waste characteristics and 

would draw limited state resources away from more pressing environmental health issues.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0135-1

Organization1:

Commenter1:Brooks Shanklin

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 10.5.4

Comment Excerpt Text:

A systems approach is important. For years, I've been using FGD gypsum as a component of this system. 
82

It has helped improve my profitability and improve and amend my soils. 

FGD gypsum is a wonderful byproduct of the coal industry. It is not a waste, nor should it be classified as 

such. It is a nutrient soil amendment that has a broad spectrum of positive benefits when applied in 

agricultural use to the soils. 

My growing crop needs both calcium and sulfur, and this product helps supply those two key nutrients. It 

is not toxic to my soil. It is actually improving my soil's ability to grow healthier plants for food by 

supplying nutrients and helping manage air and water movement within the soil profile. 

A measurable result I also have seen is much less water runoff on my fields as compared to my neighbors, 

even after a one to two inches of rain in a given shower. When water moves off of my field from surface 

drainage, what goes with it? Nitrogen, phosphorus, soil organic material and other nutrients. 

By applying FGD gypsum to my fields, the runoff is greatly reduced, and so is the misplacement of 

nutrient material and soil particles. It is my belief that this is good for the environment. Less soil and 

nutrient erosion aids in improving water quality downstream. 

So, the hazardous designation of gypsum would stop its beneficial use in American agriculture and 

thereby take away the opportunity to help the environment in so many ways. 

I ask you to: * Avoid labeling FGD gypsum as hazardous waste, and * Avoid regulating it under Subtitle 

C of RCRA

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0137-2

Organization1:USC Technologies

Commenter1:Richie Benninghoven

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

let's not call coal ash hazardous when it doesn't meet any of the characteristics of hazardous waste. EPA 

has outlined identical engineered protections under both Subtitle D and Subtitle C. Subtitle D will protect 

all of us and not risk the safe recycling of coal ash due to stigma. We should all be focusing on making 

these materials recyclable rather than talking about disposing of them.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CHI-0217-1

Organization1:

Commenter1:James Lively

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

The reason for my presence here today is to provide probably a different perspective than perhaps what 

you guys have heard from some of the other stakeholders on the constituents found on boiler slag 

specifically which is one type of CCP. It's important to understand from my perspective how boiler slag is 

produced. Boiler slag is a byproduct of burning coal to produce energy where the particulate that is 

produced encounters very high temperatures. These elevated temperatures create a molten coal ash matrix 

that is quenched with water for cooling. This quenching transforms the molten waste into a vitrified mass 

with limited permeability. 

Vitrification as a successful waste treatment process for heavy metals is well supported by EPA. EPA has 

published many documents on this, two of which, "Vitrification Technologies for Treatment of Hazardous 
83

Waste," as well as SITE Emerging Technologies Project. These documents chronicle the history of 

successful use of this approach to immobilize heavy metals inside a vitrified matrix, like we have for 

boiler slag. 

Because of the general acceptance of this EPA endorsed technology in immobilizing heavy metals, it 

seems in my opinion wholly logical that a waste which is vitrified, as is the case for boiler slag, should 

not require onerous Subtitle C regulation when it consistently complies with mandated leaching tests. 

Further, if these materials were classified as Subtitle C, the materials would be shipped to a hazardous 

waste treatment facility at a significant additional cost where an encapsulation or chemical fixation 

reagent would be added to the material to limit the permeability of the boiler slag. This seems to be 

redundant and unnecessary for the following reasons: the metals that are present are "locked up" in the 

vitrified matrix that has no or very low permeability. 

Additionally, regulating boiler slag that is not destined for beneficial reuse under Subtitle C will only 

create additional confusion. Consumers will place a hazardous stigma of the Subtitle C regulations for the 

portions of boiler slag not reused on all of the CCP waste including boiler slag used as an abrasive. This 

will create a negative perception and potentially decrease the safe, beneficial reuse of boiler slag as an 

abrasive product. This would cost the power industry, the painting industry, and the supply industry

significant sums of money as the negative perception may cause more boiler slag not to be reused which 

would force more boiler slag under the unnecessary Subtitle C regulations. 

As a result, I strongly encourage you to consider regulating boiler slag destined for disposal as Subtitle D 

and retain the exemption for boiler slag that is destined for reuse

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0011-2

Organization1:Tampa Electric Company

Commenter1:Randy Melton

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Therefore, we believe that the imposition of Subtitle C standards on CCRs produced in our state would 

serve no useful purpose. Subtitle C is not needed and would only serve to create confusion and derail the 

successful regulatory program that is already in place in Florida.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0020-1

Organization1:SEFA Group

Commenter1:Jimmy Knowles

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

ly ash is not hazardous and, therefore, disposal of fly ash ought not be under Subtitle C. Fly ash is very 

similar to other competitive materials whose disposal is not regulated under Subtitle C. Listing and 

regulating fly ash under Subtitle C will reduce the volume of fly ash that is beneficially used. 

Of course, the EPA knows that the characteristics of coal fly ash, in and of itself, do not have the 

hazardous properties necessary to be regulated as hazardous waste. Therefore, the EPA is proposing to 

call coal fly ash a special waste and to exercise its right to list and regulate fly ash under Subtitle C -- the 

hazardous waste section of the law -- because it is capable of posing a potential hazard to human health or 
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the environment when improperly managed. 

So, EPA doesn't claim that coal fly ash is hazardous, but rather that it could pose a potential hazard if it is 

mismanaged. Obviously, we agree with EPA in principle. However, the disposal of CCRs should be 

properly regulated in such a way as to prevent mismanagement. However, we strongly disagree that coal 

fly ash needs to be listed and regulated under the hazardous waste section of the law. Coal fly ash that is 

destined for disposal could just as easily be called a nonhazardous special waste and regulated under a 

nonhazardous section of the law. Regardless, because coal fly ash is not hazardous, it should not be listed 

and regulated under the hazardous waste section of the law. 

Coal fly ash is very similar to other competitive materials. There is a substantial amount of research data 

that shows what I have personally confirmed through numerous characterizations of competitive products: 

Coal fly ash is not significantly different -- either in concentration of trace elements or toxicity -- than 

competitive materials that would otherwise be used. These materials also pose a potential hazard if their 

disposal is mismanaged, but EPA does not consider them to be disposed under Subtitle C. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0026-3

Organization1:Georgia Power

Commenter1:Chuck Huling

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 5.5.5.1

Comment Excerpt Text:

Third, Georgia Power opposes the regulation of CCBs as a hazardous waste. After 20 years of study, EPA 

concluded in 1993 and in 2000 that CCBs did not warrant hazardous waste regulation. This regulation, 

even with an exemption, unravels decades of progress of beneficial reuse. CCBs are one of America's 

recycling success stories with approximately 43 percent diverted annually from landfills. 

Regulation under hazardous waste requirements will be cost prohibitive without a corresponding benefit 

to the environment. In addition, proper disposal of hazardous waste may be impossible for the foreseeable 

future because of the cost and lack of permitted disposal capacity. Any mandatory phase out of CCB wet 

management practices would exacerbate these concerns.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0030-1

Organization1:Santee Cooper

Commenter1:Jay Hudson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

I'd like to say that Subtitle C option that EPA proposed represents the most extreme, costly and 

burdensome option without proportional environmental benefit. Regulating CCRs under RCRA's 

hazardous waste controls would have an adverse impact on beneficial use in South Carolina and around 

the country. 

Response: The Agency acknowledges and appreciates the comment.
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Comment Number: TRANS-CLT-0032-2

Organization1:Titan America (Separation Technologies and Essex Cement)

Commenter1:Randy Dunlap

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

In conclusion, I hope that the EPA would give appropriate weighting to the testimony and written 

comments from those in the industry that are opposing Subtitle C and who have no other motivation to do 

so, other than the fact that based on their years of experience, they understand the significant negative 

impact that such a classification will have on future beneficial uses of the CCRs. The only option is 

Subtitle D.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0035-1

Organization1:SEFA Group

Commenter1:Bill Black

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

My company and others like it in this region keep millions of tons of fly ash out of landfills and slurry 

ponds every year by recycling it in concrete and other environmental-friendly building products. The vast 

majority of my company's customers that I have personally spoken to regarding this EPA decision have 

told me that if the EPA designates fly ash as a hazardous material they would discontinue their use of it in 

their concrete products. This will result in millions of tons of fly ash going into landfills in this region 

which are now being safely and beneficially recycled in an environmentally friendly way, and it is for this 

reason that I came to oppose any EPA decision that would categorize fly ash as a hazardous material

whether that would be under Subtitle C or otherwise.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0036-2

Organization1:Utility Solid Waste Activities Group

Commenter1:Pat McCabe

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Finally, I want to touch on our opposition to the Subtitle C option. USWAG agrees with the views of 

virtually all the states, many federal agencies, municipal and local governments, state public utility 

commissions, and many other third parties that regulating CCRs under RCRA's hazardous waste program 

does not provide significant additional protection to human health or the environment relative to a 

Subtitle D non-hazardous program. In fact, it would be counterproductive to do so because Subtitle C 

regulations would cripple the CCR beneficial use industry. There is no reason for EPA to pursue this 

approach when an appropriately designed Subtitle D Prime option offers the same degree of 

environmental protection without the attendant risks, burdens and costs of Subtitle C

Response: The Agency acknowledges and appreciates the comment.
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Comment Number: TRANS-CLT-0053-2

Organization1:North Carolina Electric Cooperatives

Commenter1:Patrick Buffkin

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.3

Comment Excerpt Text:

NCEMC supports the Federal regulation of CCRs and urges the EPA to adopt a rule that protects human 

health and the environment but that does not unduly burden the economy or threaten jobs and economic 

reliability. NCEMC favors the development of regulations of CCRs under RCRA Subtitle D nonhazardous waste program. We believe that the Subtitle D Prime option is the best one available. 

It should be noted that NCEMC is strongly opposed to the regulation of CCRs under the RCRA 

hazardous waste program, the so-called Subtitle C approach. Unlike the Subtitle C approach, D Prime will 

enable the EPA to establish an environmentally protective program without crippling the beneficial use of 

CCRs and imposing unnecessary costs on power plants that in turn increase electricity costs. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0061-2

Organization1:Duke Energy

Commenter1:George Everett

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

It's also important to note, for those who have talked about Subtitle C, there are currently no permitted 

hazardous waste landfills in North or South Carolina. Consequently, a Subtitle C regulatory program 

would place an enormous burden for both the State's regulatory programs and utilities and, finally, permit 

disposal sites to handle the CCRs and meeting these proposed regulations. 

Dam stability is a critical piece of this regulatory puzzle. Quite simply, a Subtitle C hazardous designation 

coal ash is not warranted to ensure the structural stability of surface impoundments

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0062-2

Organization1:Progress Energy

Commenter1:Barbara Capola

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Progress Energy strongly opposes the regulation of CCRs under Subtitle C. The comparatively stringent 

and costly Subtitle C program is not necessary to manage the relatively low toxicity of CCRs. An 

important aspect of the CCR regulation issue in terms of both cost and effective disposal is the 

availability of adequate infrastructures, specifically landfills, that can and will accept hazardous waste. 

Response: The Agency acknowledges and appreciates the comment.
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Comment Number: TRANS-CLT-0063-4

Organization1:National Ready Mixed Concrete Association

Commenter1:Gary Mullings

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

Based on the concrete industry's extensive use of and reliance of fly ash in concrete, and after examining 

the EPA's proposed Rule, NRMCA has determined that Subtitle C designation for CCRs down for 

disposal while retaining any exemptions for beneficial use will lead to the following unintended 

consequences for the concrete industry. Number one, an increase in production costs and costs of 

construction resulting in less concrete production, thus, less opportunity to use fly ash in a beneficial way. 

Number two, an increase in potential liability for concrete producers. 

Currently, the regulatory status of small amounts of fly ash in waste streams for concrete production is 

unclear. Any proposed Rule, including Subtitle D, must explicitly state that small waste streams from the 

concrete industry are exempt from such regulations. There will also be litigation, which will target 

existing structures built with fly ash concrete. Three, potentially stricter laws impacting beneficial use; for 

example, there's a proposed Rule in Maryland which states that any concrete containing fly ash to be 

disposed of in a special facility authorized to accept fly ash. Number four, the potential elimination of fly 

ash concrete. A hazardous waste stigma and fear of liability will drive specifiers, engineers, architects, 

and end users to disallow fly ash in concrete. For example, the Los Angeles Unified School District has 

banned the use of fly ash until this panel and EPA finalize this Rule. And, number five, there will be a 

drastic reduction in fly ash use in our nation

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0072-2

Organization1:Progress Energy

Commenter1:Cam Wheeler

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Progress Energy strongly opposes the regulation of CCRs under RCRA Subtitle C. Should the EPA list 

CCRs as a special waste, they would be subject to the full hazardous waste control, just as any other 

waste listed as hazardous. A comparatively stringent and costly Subtitle C program is not necessary to 

effectively manage and safely dispose of CCRs. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0085-1

Organization1:

Commenter1:Darrell Wilson

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:
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I strongly oppose the EPA regulating fly ash under Subtitle C because there is no science to justify such a 

designation. A Subtitle C designation for fly ash would definitely hinder the recycling efforts that many 

of us have worked so hard on for many years. The idea that a hazardous label would increase the 

recycling efforts is absolutely untrue and I have been told by many customers and engineering firms that a 

hazardous designation for fly ash would result in them ceasing to use and specify fly ash for fear of 

litigation.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0085-2

Organization1:

Commenter1:Darrell Wilson

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 11.3

Comment Excerpt Text:

I recently became aware of the August 9, 2010 Congressional Research Service report, "Regulating Coal 

Combustion Waste Disposal: Issues for Congress." In this report they recommend Congress amend the 

Resource Conservation and Recovery Act to create a new Subtitle K that would specifically address 

issues unique to the management of coal combustion waste. This appears to me to be the most sensible 

approach. I think everyone here would agree that insuring safe disposal of coal ash should be and is what 

everyone wants. How we achieve that is what is important. To label fly ash as a hazardous product gives 

the EPA the right to regulate disposal but at a cost that is much too high to everyone involved. Regulation 

under Subtitle C will result in significant increases in the cost of electric power created using coal as a 

fuel source. 

Since we won't be getting rid of coal-powered power plants anytime soon, we should concentrate on 

making it as safe as possible and also making sure we continue to utilize the resulting coal ash residue in 

as many recycling efforts as possible. A Subtitle C designation will not help achieve these goals. Work 

with Congress to correct RCRA, to do what is right for everyone. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0088-2

Organization1:American Coal Council

Commenter1:Janet Gellici

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The ACC opposes EPA's proposal to reverse previous determinations that correctly concluded coal ash 

should not be regulated as a hazardous waste. A hazardous designation under Subtitle C will stigmatize 

the beneficial use of coal ash and seriously damage our ability to recycle this product. A hazardous 

designation will increase the volume of landfill products. A hazardous designation will require the use of 

products that increase greenhouse gas emissions. And a hazardous designation will negatively impact the 

US economy by up to $11 billion each year. That's $11 billion each year.

Response: The Agency acknowledges and appreciates the comment.
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Comment Number: TRANS-CLT-0099-2

Organization1:Advanced Wall Technologies (AWT), LLC

Commenter1:Carl Dudding

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3 4.1.1

Comment Excerpt Text:

I'm opposed to the management of CCRs as a Subtitle C material and strongly support management under 

Subtitle D. To the best of my knowledge, CCRs are the largest, single recycling/reuse success story in the 

United States. They are a useful construction material with uniform physical characteristics, and a Subtitle 

C designation will significantly jeopardize this ongoing success story. 

In my opinion, the stigma that will be created will prevent continued high usage rates of CCRs and is 

currently preventing development of innovative usage of these materials. At a minimum, the management 

of these materials under Subtitle D, instead of Subtitle C, will allow continued current and future 

beneficial reuse development. 

From a technical perspective, the EPA's own proposed regulations have the same liner systems for both C 

and D and effectively change the way wet storage is conducted, which I am fine with. The Subtitle C 

designation will add on a significant amount of time for permitting, however, as facilities try to change 

from existing systems to new requirements. This will occur at the time these facilities need additional 

capacity required by these regulations as they struggle to keep up with demand. 

I am strongly in favor of utilization of geomembrane liner systems in large structural fills applications, 

but with properly designed engineering controls that offer maximum protection of the environment. I also 

believe that CCRs used in this manner can be considered beneficial reuse.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0109-1

Organization1:Boral Composites

Commenter1:Brian Below

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

A critical component in our product is a particular type of coal combustion residual, which not only offers 

unique and improved performance properties, but allows us to provide this exceptionally high level of 

green content. Our business is based on selling these green building products to both the construction 

industry and the end customer. 

As such, we are extremely concerned about the EPA's proposal for relabeling CCRs as hazardous through 

a RCRA Subtitle C designation and the negative stigma that that would create within our customer base; 

homebuilders, contractors, installers and homeowners. 

Our customers are not typically scientists or environmental policy makers. They will likely not be aware 

that the EPA has formally encouraged the use of CCRs since 1983 or that the EPA has twice ruled that 

CCRs are nonhazardous, going so far as to form the Coal Combustion Products Partnership in 2003, or 

that U.S. Green Building Council, American Society for Testing and Materials, and American Concrete 

Institute all endorse and encourage the use of the CCRs. Unfortunately, our customers are more likely to 

hear inaccurate information about CCRs and their beneficial uses from uninformed and/or biased media 

sources, creating a negative stigma that will only be exacerbated with an unwarranted change in 

designation to RCRA Subtitle C. 

We certainly support the EPA's efforts to protect human health and our environment. We further believe 

that CCR disposal should be done in a responsible manner to avoid ash spills, like the tragic storage 
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failure at Kingston, Tennessee in December 2008. 

However, poor storage practices and mishandling of the material itself should not be grounds for 

changing the classification of that material, and thereby jeopardizing one of the most successful recycling 

programs in U.S. history. 

Boral Composites is only a small start-up business, but it's a great example of the green-tech, advanced 

manufacturing opportunities that our economy desperately needs. Last Thursday, September 9th, we 

celebrated the groundbreaking for our first commercial scale manufacturing facility being built just up by 

I- 85 in East Spencer, Rowan County, North Carolina; a $13 million 3.7 acre site, Leadership in Energy 

and Environmental Design certified project that will create 25 jobs when fully operational. 

The decisions that the EPA makes around CCR classification will directly impact this new green- tech 

business, these new job opportunities and the future job opportunities that this business would create. The 

negative stigma associated with the hazardous classification through Subtitle C is real and will virtually 

eliminate the demand for our products and our business overnight. 

Let's find a more responsible way to deal with the CCR storage issues that Kingston, Tennessee has 

brought to light. Subtitle C is not the answer

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0118-2

Organization1:SCANA Corporation

Commenter1:Jack Preston

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

. Is classifying CCRs as a hazardous waste necessary? The answer is no. Concentrations of contaminants 

found in fly ash, bottom ash and other CCRs produced by utilities are typically well under the hazardous 

toxicity levels set forth by EPA. In two separate reports to Congress, the EPA itself has previously 

concluded that CCRs do not warrant regulation as a hazardous waste. 

Bottom line, CCRs do not pose a potential health concern when properly managed.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0011-1

Organization1:Sierra Club

Commenter1:Michael Brune

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 6.1.1

Comment Excerpt Text:

Toxic coal ash poses serious risks to human health and the environment. Given the severity of these risks, 

enforceable federal safeguards, not suggested state guidelines, are necessary to protect our communities. 

Both EPA and the National Academy of Sciences have years of research showing that toxic coal ash is 

becoming increasingly toxic. The hundreds of toxic coal waste dumpsites across the country pose very 

real threats to the health of millions of people living in communities near those sites. 

For decades, the coal industry has told the American people that coal ash is safe, just like tobacco 

executives told Americans that cigarettes don't cause cancer, just like the auto industry told us that 

installing catalytic converters would wreck the industry. 

If these examples and the BP oil disaster and the Tennessee coal ash disaster have taught us anything, it's 
91

just that we can't take polluters' word for granted anymore. Coal ash contains a long list of dangerous 

toxins, including arsenic, selenium, lead, and mercury. These heavy metals have been linked to organ 

disease, cancer, respiratory illness, neurological damage, and developmental problems. Do we really want 

these chemicals in our water supply? 

Despite coal ash's dangerous characteristics, it is currently less strictly controlled than household garbage. 

That's right. Coal ash is contaminated with dozens of chemicals known to cause serious harm to people 

and the environment, and it's treated with no more care than an empty bag of pretzels. 

Clearly, our current state standards are inadequate. This is why we're here today. It's why there are 

hundreds of people turning out at every hearing on this issue across the country. That's why you will 

receive hundreds of thousands of comments over the next several months. 

We need EPA, we're counting on EPA, to protect the quality of our air, our water, and our communities. 

Effective coal ash regulations must require basic protections for communities, such as composite liners, 

water runoff chemicals, groundwater monitoring, and financial assurance that companies pay to clean up 

what they pollute. 

Again, I want to thank you for the opportunity to speak about this issue. I just wanted to say that coal ash 

is toxic. It's hazardous. It's poisonous. Please regulate it as such. Please adopt Subtitle C.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0012-2

Organization1:National Ready Mixed Concrete Association

Commenter1:Kevin Walgenbach

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

Based on the concrete industry's extensive use of and reliance on fly ash in concrete, and after examining 

EPA's proposed rule, NRMCA has determined the RCRA Subtitle C designation for CCRs bound for 

disposal, while retaining exemptions for beneficial use, will lead to the following unintended 

consequences for the concrete industry: One, an increase in production costs and the cost of construction; 

two, an increase in potential liability for concrete producers. 

Currently, the regulatory status of small amounts of fly ash in waste streams from concrete production 

and construction is unclear. Any proposed rule should explicitly state that such small waste streams from 

the concrete industry are exempt and not subject to such regulations. There will also be litigation which 

will target existing structures built with fly ash concrete. 

Three, potentially stricter state laws impacting beneficial use. For example, a proposed rule in the state of 

Maryland states that any product containing fly ash is to be disposed of in a special facility authorized to 

accept fly ash. More states will inevitably establish similar laws. 

Four, the potential elimination of fly ash concrete. Hazardous waste stigma and fear of liability will drive 

specifying engineers, architects, and end users to disallow the use of fly ash in concrete. For example, the 

Los Angeles Unified School District has banned the use of fly ash until the EPA has finalized its decision. 

Lastly, five, there will be a drastic reduction in the durability of our nation's infrastructure if fly ash in 

concrete is disallowed

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0017-1

Organization1:Dynegy

Commenter1:Linda Whelan
92

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Dynegy opposes Subtitle C's regulation of CCRs. 

EPA itself has publicly stated there is no difference in the storage and disposal requirements under 

proposed Subtitle D non-hazardous and proposed Subtitle C hazardous waste approaches, yet EPA 

continues to advocate the Subtitle C approach, even though it will have the negative consequences of 

imposing tremendous additional costs upon the industry, increasing the cost of power to consumers, 

causing significant job losses, and destroying the beneficial use of coal ash through the stigma and 

liability concerns of regulating CCRs as hazardous.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0019-3

Organization1:Ameren Corporation

Commenter1:Edward Kahl

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Further, I want to state our strong opposition to the Subtitle C opposite -- option. I agree with the views of 

a bi-partisan group comprised of 165 members of Congress, 45 U.S. Senators, virtually all the states, 

other federal agencies, municipal and local governments, CCP marketers, beneficial users, unions, state 

agencies, and many third-parties which have maintained that regulating CCPs under RCRA's hazardous 

waste program is simply regulatory overkill that would severely cripple the CCP beneficial use industry. 

After reviewing the eight Bevill study factors, I have concluded that there is simply no reason to -- to 

pursue this approach when other, better options offer the same degree of protection without the fears that 

result from regulating CCPs under Subtitle C.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0022-2

Organization1:San Miguel Electric Cooperative

Commenter1:Mike Kezar

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 9.3.7

Comment Excerpt Text:

San Miguel is opposed to using the Subtitle C approach. Proposed controls for CCRs are virtually 

identical under the C and D approaches, and they would be expected to provide the same levels of 

protection. However, regulating coal ash under the hazardous waste rules, would impose unnecessary 

regulatory costs on power plants like San Miguel, threatening jobs and increasing electricity rates. 

As previously stated, San Miguel's member owners, the predominantly rural end of the line users of 

electricity, bear the cost of owning and operating the facilities. And any increase in a regulatory cost will 

go directly to the rates they pay for electricity.

Response: The Agency acknowledges and appreciates the comment.
93

Comment Number: TRANS-DAL-0031-1

Organization1:Headwaters Resources

Commenter1:Bill Gehrmann

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

The EPA and speakers at the Arlington and Denver hearings have stated that they feel a Subtitle C 

hazardous waste designation would incentivize the industry particularly utilities to increase recycling. 

Waste oil and electric arc furnace dust have been used as examples where Subtitle C designation has lead 

to increases in recycling. 

However, there are substantial differences when you compare these examples to coal ash. Disposal cost 

including treatment for these two wastes are much higher than those for coal ash. Under the proposed 

regulations for Subtitles C and D, coal ash does not require any treatment prior to being land-filled. When 

truly recycled, oil is typically sold at prices similar to those of new oil, the product it competes with. In 

fact, most recycled waste oil is actually burned or incinerated as fuel. Electric arc furnace dust recycling 

typically results in the sales of extracted metals, bringing the same values as virgin metals. These values 

coupled with much higher disposal costs incentivize the recycling. 

Fly ash, on the other hand, the coal ash with the highest beneficial use value typically sells for 30 to 50 

percent of the price of portland cement. The substantial pricing incentive is already there. Approximately 

44 percent of coal ash is currently recycled. The theory that the additional pricing incentives will lead to 

more beneficial use in an already mature recycling market does not make sense. No one disagrees with 

the fact that under either proposal, disposal costs will go up. 

The utility industry has the ability to pass these increased costs through to us, the rate payers. When a 

utility weighs a potential liability to beneficial use under Subtitle C designation, many will minimize risk 

by sending all of their coal ash to the landfill. It is a logical decision when they can minimize their risk 

and have increased -- increased cost of disposal covered by the rate payer. 

This is not the case for companies dealing with waste oil and electric arc furnace dust. You've already 

heard that the stigma of the Subtitle C hazardous waste designation isn't negatively impacting beneficial 

use. There should be no doubt in anyone's mind that the risk assessment decisions made by utilities 

specifiers and beneficial users under Subtitle C will result in more coal ash going into landfills. 

As the administrator has said, it is time for a commonsense approach. The proposed engineering standards 

are essentially the same under both the proposed regulations for Subtitles C and D. Enactment will 

happen faster under Subtitle D. Don't do it under Subtitle C. Don't send more coal ash to the landfill

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0040-2

Organization1:Association of Electric Companies of Texas

Commenter1:Walt Baum

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 7.1 10.5.2.3

Comment Excerpt Text:

The Texas Commission on Environmental Quality oversees the design, construction, monitoring, 

reporting, and final closure of all CCR disposal facilities. TCEQ's robust state regulatory program ensures 

the disposal and reuse of CCRs are conducted in a manner that is protective of human health and the 

environment.
94

In summary, AECT strongly opposes the regulation of CCRs as a hazardous material and believes that 

Texas has a protective program that does not need a new federal program.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0042-2

Organization1:Luminant

Commenter1:Bobby McNeeley

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

Designating CCRs as hazardous would have a devastating effect on the recycling of this by-product, 

leading to higher costs and job losses across many industries. A hazardous classification would destroy a 

viable and environmentally beneficial market. And it's important to note that on four separate occasions, 

most recently in 2000, EPA determined that the regulation of CCRs was not warranted.

As such, Luminant, in addition to over 200 members of the U.S. Congress, 43 states, and numerous 

federal agencies, strongly opposes the regulation of CCRs as a hazardous material under the RCRA 

Subtitle C hazardous waste program and recommends that EPA continue to allow states to run their own 

programs.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0061-2

Organization1:Luminant

Commenter1:Usha Turner

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 11.2.5

Comment Excerpt Text:

The regulation of CCRs under Subtitle C would not only strip states of the ability to cost effectively 

regulate CCR disposal practices and potentially cost utilities like Luminant hundreds of millions of 

dollars, but would also eliminate the use of CCRs and the businesses that utilize them, again, as you've 

heard here today several times. 

Any hazardous waste-like program that directly -- excuse me. Any hazardous waste-like program would 

directly or indirectly result in the elimination of the recycling markets for CCRs, increase the use of virgin 

natural resources, contribute to negative environmental benefits, job losses, and increase in electricity cost 

and energy use.

In summary, Luminant, in addition to over 200 members of the U.S. Congress, 43 states, and numerous 

federal agencies strongly oppose the regulation of CCRs as a hazardous material, and recommends that 

EPA continue to allow states to run their own programs like the model state of Texas that you've heard 

about here today.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0069-3

Organization1:PMI Ash Technologies

Commenter1:Kyle Crake
95

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

PMI Ash is firmly against the classification of CCRs as special waste under RCRA's Subtitle C hazardous 

waste program. EPA has overreached with its Subtitle C proposal. EPA's approach will cost this country 

jobs, all for the purposes of obtaining enforcement authority. There are better ways that exist to obtain 

enforcement authority which allow U.S. jobs to grow.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0076-1

Organization1:Luminant

Commenter1:Julie Prejean

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 9.5.2 10.4.2

Comment Excerpt Text:

Environmental risk is dependent in part upon site-specific factors such as depth to groundwater, annual 

rainfall, and the amount of clay present in the soil. Imposing a hazardous waste designation would result 

in an attempt to regulate using a one-size-fits-all approach, which is not appropriate or warranted. 

It would also simultaneously destroy the recycling market. Since 1993, Luminant has sold nearly 40 

billion pounds of CCRs. In 2009 alone, we recycled more than 2.2 billion pounds. In fact, a variety of 

road projects currently underway right here in North Texas are utilizing recycled coal ash from Luminant 

facilities.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0081-3

Organization1:Luminant

Commenter1:Barry Boswell

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 11.2.5

Comment Excerpt Text:

In summary, Luminant strongly opposes the regulation of CCRs as a hazardous material under the RCRA 

Subtitle C hazardous waste program and recommends that EPA continue to allow states to run their own 

programs.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0084-1

Organization1:Hallett Materials

Commenter1:Frank Johnson

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

EPA's rule and proposal highlights increase the beneficial use of coal ash, not including mine filling, from 

23 percent in 1995 to 37 percent in 2008. Environmental benefit to this increase is great. Ash should not 
96

be thrown away. Instead, it should be recycled, being used in proven safe products that we (inaudible). 

Based on EPA's old numbers, 13.7 million tons of coal ash were recycled and used in place of portland 

cement in 2007. This energy savings is equal to the energy used in 676,000 homes. It also reduced 

greenhouse gas missions equal to taking 2.3 million cars off the road. 

Recycling coal ash is something TACA members are proud of, but we're afraid that all the beneficial 

reuse will come to an end if EPA finalizes Subtitle C regulatory option. Calling coal ash a special waste 

does not eliminate liability, the stigma. In the marketplace there are other market concerns. 

The EPA discussing the hazardous waste regulations and holding these hearings makes it hard to recycle 

coal ash and use it in construction material products. The stigma is real. Coal-fired power plants have 

already said they will be very unlikely to buy coal ash from our members out of fear of liability. Even if 

our members can obtain coal ash, they will be inclined to look for other products. 

We do not want to deal with the potential liability of operational requirements for handling coal ash 

classified as a hazardous waste when not beneficially used. Also, buyers of our products that contain coal 

ash will look for other options because consumers do not want to buy materials stigmatized as hazardous 

waste. 

Our members provide a valuable resource found in countless products which will literally serve as the 

foundation to allow our economy to recover. A hazardous waste regulation and accompanying stigma will 

destroy the beneficial sector of our industry. This will increase costs while we are all struggling in the 

economy and also several member companies already operating a small (inaudible). 

To protect the beneficial use, protect our environment, and protect our members, on behalf of the Texas 

Aggregates and Concrete Association, I ask that you not regulate coal ash as a hazardous waste, but if you 

determine that more regulation is even necessary, instead regulate it as a non-hazardous waste

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0090-3

Organization1:Texas Mining and Reclamation Association

Commenter1:Mike Altavilla

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

TMRA opposes any regulation of CCRs as a hazardous material under the RCRA Subtitle C hazardous 

waste program. Texas already has in place a program protective of the public and the environment. A new 

one-size-fits-all federal program for Texas is not needed.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0103-2

Organization1:Luminant's Three Oaks Mines

Commenter1:James Birkhead

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 11.2.5

Comment Excerpt Text:

In summary, Luminant, in addition to over 200 members of the U.S. Congress, 43 states, and numerous 

federal agencies strongly oppose the regulation of CCRs as a hazardous material under RCRA Subtitle C 

hazardous waste program. And we recommend that the EPA continue to allow states to run their own 

program. Thank you for this opportunity to comment. 
97

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0112-2

Organization1:Ameren Energy Fuels and Services

Commenter1:Charles Henderson

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

I want to strongly state our opposition to the Subtitle C option. Regulating CCPs under RCRA's 

hazardous waste program is simply regulatory overkill that would severely cripple the CCP beneficial use 

industry and unnecessarily raise the cost of power to our electric customers. 

Significant government research and demonstrations have supported CCP beneficial use recycling for 

many years. Please reconsider the effort to regulate CCPs under RCRA Subtitle C. Instead, RCRA Subitle 

D approach will accomplish everything essentially necessary to properly manage CCPs when storing, 

recycle, beneficially use, or dispose. 

Even the EPA has stated that there is no significant difference in the level of environmental protection 

between the proposed Subtitle D non-hazardous waste approach and its proposed Subtitle C hazardous 

waste approach. There is just no sound reason to pursue the Subtitle C approach when Subtitle D options 

offer the same degree of protection without the independent risk it burdens the economy, jobs, and 

electric customers. 

A Subtitle D approach is protective of human health and the environment and is clearly the correct 

regulatory approach.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0119-2

Organization1:

Commenter1:Gary Gibbs

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 5.5.5.1

Comment Excerpt Text:

Unfortunately, the EPA's proposed rule could severely cripple this shining success and have the resulting 

effect of driving up the cost of concrete and causing fewer transportation projects to be built across this 

country. Instead of being recycled, this coal ash will instead go into industrial landfills. Countless new, 

large landfills will be required to bury this much ash.

I urge you to reconsider your approach and not adopt the rules that would further stigmatize coal ash. It's 

far too valuable of a resource to simply bury. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DEN-0001-2

Organization1:National Ready Mixed Concrete Association

Commenter1:Dan Huffman

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.3
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Comment Excerpt Text:

After examining the EPA's proposed rule, we've determined a RCRA Subtitle C designation for CCRs 

bound for disposal, while remaining -- while retaining exemptions for beneficial use, such will lead to the 

following unintended consequences for the concrete industry: Number 1, an increase in production costs 

and the overall cost of construction due to increased regulations for handling fly ash and concrete during 

production and construction; number 2, an increase in potential liability for concrete producers. Currently, 

the status of small amounts of fly ash and waste streams from concrete production and construction is 

unclear. 

So any proposed rule should explicitly state that such waste streams from concrete production are exempt 

and not subject to such regulations. There will also be litigation which will target existing structures built 

with fly ash concrete in the past. 

Potentially stricter state laws impacting beneficial use will also result. For example, a state rule in the 

state of Maryland says that any product containing fly ash must be disposed of in a special facility 

authorized to accept fly ash. And many other states will establish similar laws that will further limit the 

beneficial use of fly ash. 

Number 4, the beneficial elimination of all fly ash concrete. A hazardous waste stigma and fear of 

liability will result from the negative ruling that will drive specifying engineers, architects, and end users 

to disallow the use of fly ash concrete. For example, Los Angeles Unified School District has banned the 

use of fly ash until the EPA has finalized its decision

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DEN-0004-1

Organization1:MidAmerican Energy Holdings Company

Commenter1:Cathy Woolums

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

PacifiCorp strongly opposes the regulation of CCRs under the RCRA Subtitle C, hazardous waste 

program. 

Additionally, state regulatory agencies support the same conclusion, that CCR does not warrant hazardous 

waste regulation. To date every individual state environmental regulatory agency that's weighed in on this 

issue has opposed the regulation of CCR as hazardous waste. 

Further, a number of state utility commissions and state departments of transportation are likewise on 

record in opposition to a hazardous waste designation. The state agencies make a compelling case that 

Subtitle C regulation is not necessary and CCR does not merit hazardous waste characterization, which 

would only draw state resources away from more pressing environmental issues. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DEN-0005-1

Organization1:Harsco Minerals

Commenter1:Tom Shaw

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:
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Since the 1930s we have been a green recycler of boiler slag producing mainly abrasives under the Black 

Beauty trademark and granules for roofing shingles. The facts demonstrate there is no reasonable basis for 

subjecting boiler slag to regulation under RCRA Subtitle C, not even as a special waste. 

Boiler slag is formed when extremely hot molten coal ash is quenched with cold water and the coal ash 

immediately becomes a vitrified, amorphous, solid, glassy matrix known as boiler slag. Because boiler 

slag is vitrified, it is a very durable and environmentally stable material that permanently immobilizes its 

chemical constituents into the glassy amorphous structure, even when broken into small fragments during 

abrasive blasting. This is confirmed by x-ray defraction and TCLP data. 

Because it is beneficially reused, boiler slag is not commonly stored in surface impoundments. We 

regularly test our boiler slag, and it has always passed the TCLP testing and has never exhibited any 

hazardous waste characteristics. Our testing of pre- and post-blast boiler using the TCLP has confirmed 

that the resulting leachate meets drinking water standards. 

The scientific information about boiler slag and the physical properties have not changed since we began 

our operations more than 70 years ago. 

Regulating boiler slag destined for disposal as special waste under Subtitle C will unfairly stigmatize 

beneficial reused boiler that is already evident by competitor actions. We have seen no evidence that 

boiler slag meets any threshold for regulation under Subtitle C, and we're not aware of any environmental 

problems linked to our products. 

As an abrasive, we have a primary alternative to silica sand, an abrasive that presents serious worker 

concerns -- health concerns. We recognize the need for proper environmentally sound standards for 

regulating that small percentage of boiler slag that is discarded rather than beneficially reused. 

Accordingly, consistent with the amounts used in nearly 30 states and EPA's two previous determinations 

evaluating proper management of coal combustion byproducts, we support appropriate and reasonable 

disposal standards for any waste boiler slag under Subtitle D of RCRA

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DEN-0006-2

Organization1:Tri-State Generation and Transmission

Commenter1:Chris Gilbreath

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.3

Comment Excerpt Text:

It is our position that the monumental costs associated with regulating ash as a hazardous waste provides 

very little, if any, health protection to human health and the environment. There is simply no reason to 

pursue this approach when the Subtitle D prime option offers the same degree of protection without the 

attendant risks and administrative burdens of Subtitle C.

We have evaluated the alternatives and believe that the Subtitle D prime option is the best path forward. 

Unlike the C approach, D prime will establish a robust and environmentally protective program for coal 

ash disposal without negatively impacting coal ash beneficial use, imposing unnecessary regulatory costs, 

and threatening jobs and increasing electricity costs.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DEN-0010-2

Organization1:McDonald Farms Enterprises

Commenter1:David Goss
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Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

We urge you not to classify coal ash as a special waste under Subtitle C.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DEN-0013-4

Organization1:Platte River Power Authority

Commenter1:David Ussery

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Platte River strongly opposes regulation of CCRs under RCRA hazardous waste program. Even though 

CCRs would be labeled, quote, special waste, unquote, EPA has stated that CCR special waste would be 

subject to full hazardous waste control just like any other hazardous waste. This is despite the fact that 

most CCRs do not exhibit characteristics classified as hazardous waste. 

We currently operate our facility as a small-quantity generator of hazardous waste. The Subtitle C 

proposal would put us in a large-quantity generator status.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DEN-0045-1

Organization1:American Coal Ash Association

Commenter1:Melissa Hendricks

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

More than 135 million tons of coal combustion residuals were produced in 2008 making these materials 

our second largest industrial byproduct stream. Today 45 percent are recycled. 

If coal ash is labeled a hazardous waste, the EPA will destroy one of America's greatest recycling success 

stories. With the threat of Subtitle C regulation, the EPA appears to have forgotten a national priority. 

The EPA appears to have forgotten years of productive partnership. The EPA appears to have forgotten 

decades of sound scientific research that has proven these materials are safe when properly managed.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DEN-0048-1

Organization1:American Coal Ash Association

Commenter1:Thomas Adams

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

EPA has recognized, and rightly so, that disposal of all CCR is not in the best interest of our society. The 

more safe recycling that occurs helps mitigate demand for disposal capacity and the resources required to 
101

damage CCR disposal. 

The American Coal Ash Association shares this view. Since its founding in 1968, the ACAA has been 

encouraging beneficial use of coal combustion products in ways that are environmentally safe, 

commercially competitive, and contributing to a more sustainable society. 

However, there is a fundamental problem with the continued recycling of coal combustion products under 

the Subtitle C proposal to call CCR destined for disposals special waste. Subtitle C is intended for 

management of hazardous waste. Therefore, anything managed under Subtitle C is actually a hazardous 

waste no matter what attempt is made to relabel the waste. 

We believe that markets will reject products which include a material considered hazardous waste

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DEN-0050-1

Organization1:Xcel Energy

Commenter1:Terry Coss

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.3

Comment Excerpt Text:

First, we strongly oppose regulation of coal ash disposal on RCRA C. This approach is unnecessary, and 

we believe EPA has seriously under- estimated the negative consequences. We support the more 

reasonable D prime option which, with certain modifications, would allow well-designed and welloperated surface impoundments to remain in use. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DEN-0053-3

Organization1:Association of State and Territorial Solid Waste Management Officials

Commenter1:Gary Baughman

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

We're concern about the impact the regulation under Subtitle C would have on the state's already strained 

resources to manage hazardous waste, and the amount of coal combustion residuals presently being land 

disposed is nearly 40 times as much as the amount of all other hazardous waste currently be land 

disposed.

EPA has not collected information on and the proposal does not recognize the strong state solid waste 

enforcement authorities that are routinely used around the country. We're also very concerned about the 

impact listing this waste under Subtitle C would have on the beneficial use of this waste. The states 

strongly support appropriate beneficial use rather than land disposal of these wastes.

Over a third of the CCR currently generated is presently being used beneficially. We believe that amount 

would reduce significantly if the waste were listed under Subtitle C

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DEN-0059-1

Organization1:Kansas City Power & Light
102

Commenter1:Fred Gustin

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.3

Comment Excerpt Text:

I'm here today to express the support of KCP&L for the Subtitle D prime option and to express our strong 

opposition to any Subtitle C designation for coal ash. 

As we've seen from many years of testing CCPs, and as EPA determined both in 1993 and in 2000, a 

Subtitle C determination is clearly not warranted as long as these materials are managed properly. 

As you've seen, there's been a groundswell of bipartisan opposition to Subtitle C across the political 

regulatory spectrum. Why is this? 

We believe that it's because regulation under Subtitle C would impose significant but unnecessary costs 

on our customers of electricity and on the taxpayers. EPA has stated that a Subtitle D determination 

would provide the same protections to the environment as would a Subtitle C. 

A Subtitle D prime would require groundwater monitoring for ash ponds with compliance enforced 

through the states permitting frameworks. We do not agree that an across-the-board closure of all ponds is 

appropriate for those ponds that are performing in an environmentally satisfactory manner. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DEN-0093-2

Organization1:PPL Montana

Commenter1:Steve Christian

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.3

Comment Excerpt Text:

PPL Montana strongly opposes Subtitle C hazardous waste regulation and requests EPA to regulate CCRs 

under Subtitle D prime option that integrates with current state regulatory programs. 

This will create a reasonable and effective regulatory program that protects the environment, retains 

options for beneficial use, allows companies like PPL Montana to provide hundreds of good-paying, 

family-sustaining jobs.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0004-1

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.1.1 10.1.1

Comment Excerpt Text:

I've attended all eight of EPA public hearings on the proposed coal ash disposal regulations, and I'd like to 

thank EPA for providing such ample opportunity for citizens to speak out. In all of these hearings, one 

point of consensus stands out. Coal ash disposal regulations should be improved and incidents like the 

Kingston coal ash spill should never be allowed to happen again. 

Beyond that, the citizen comments have been divided. One group of citizens has been vocal in calling for 

Subtitle C, hazardous waste designation for coal ash. This group, for the most part, has gained its 

knowledge of coal ash from large, well-funded anti-coal environmental groups. These well-meaning 
103

citizens end up being only partially informed, because those major environmental groups completely 

ignore options for the safe and responsible recycling of coal ash. I challenge you to find even a mention of 

coal ash recycling in any of their publications. 

The other group of citizens you've heard from is comprised of people who have spent decades doing 

what's right for the environment creating safe and environmentally beneficial uses for coal ash that keep it 

out of landfills in the first place. These people are recyclers, architects, engineers, concrete producers, 

farmers, and more. Most of them are small business people, and all of them consider themselves to be 

environmentalists, too, because they're working every day to conserve energy and materials and reduce 

greenhouse gas emissions. 

This group of citizens has been unanimous in stating that Subtitle C hazardous designation for coal ash 

will wreck recycling of the material in this country, and possibly worldwide. I urge you to remember 

these facts: Coal ash does not qualify as a hazardous waste based on its toxicity. And its toxicity is similar 

to that of the materials it replaces when it's recycled. 

The landfill engineering standards being proposed by EPA are essentially the same under both EPA's 

hazardous and non-hazardous approaches. So you're not giving the environment more protection with a 

hazardous label. Finally, EPA's non-hazard approach can be implemented years sooner giving greater 

protection to our environment now instead of later. It is absurd to state that people will want to use more 

of a material in their homes and communities if EPA considers it's hazardous waste on the property of the 

people who produced it. 

Hundreds of citizens who actually work to recycle coal ash have told you at these hearings that Subtitle C 

will not work. Please listen to the citizens who have working knowledge of this subject and remember 

that they care about environmental protection just as much as people who issue scary press releases and 

fundraising appeals that improperly label coal ash as toxic waste. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0009-1

Organization1:American Coal Ash Association

Commenter1:Thomas Adams

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

The Environmental Protection Agency's proposal for regulating the coal -- disposal of coal combustion 

products, or CCP, provides two basic paths creating rules which will improve the protection of human 

health and the environment. Under the provisions of the Resource Conservation and Recovery Act, the 

agency has suggested that CCP be regulated as a hazardous waste under Subtitle C, or as a non-hazardous 

waste under Subtitle D. 

The level of protection provided under either disposal scenario is virtually identical. The distinction 

between describing CCP as hazardous waste or non-hazardous waste has very serious implications for the 

continued beneficial use. The stigma of being associated with hazardous waste is real and is already 

affecting markets. The safe recycling of CCP is a major environmental success story that is in serious 

jeopardy with a looming threat of a Subtitle C rule. 

When faced with the choice of purchasing a product containing a hazardous waste or purchasing a 

product without this stigma associated with it, the rational consumer will choose the non-hazardous 

option. The EPA claims it can construct a rule exempting favored beneficial uses, and under this 

construct, recycling will actually increase. After all, the agency has 13 examples of such a scheme 

demonstrating this result. 

We've continually pointed to the difference between these 13 processed industrial materials and the 

unprocessed CCP used in consumer products such as carpet, wallboards, shingles, concrete foundations, 
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and concrete slabs. Hazardous waste is not something consumers invite into their homes, schools, 

healthcare facilities, or workplaces. In an effort to regulate disposal, the EPA is threatening to destroy an 

industry which provides the only rational solution to disposal, which is recycling. 

I'd like to pose a final question for your consideration. What if you are wrong about beneficial use under 

Subtitle C regulation? The following are some of the outcomes: Millions of tons of coal combustion 

products currently safely consumed in a broad range of applications will be diverted to disposal. Since the 

year 2000 alone, over 400 million tons of CCP have been recycled. Current landfills will have to be 

expanded where possible, and new landfills will be required where capacity cannot be increased. 

Another impact, 15,000 green jobs will be eliminated. The vast majority of these jobs are in small 

businesses, not large utilities. Another impact would be the industry which contributes as much as $25 

billion directly and indirectly to the U.S. economy will be lost, and millions of tons of greenhouse gas 

emissions currently being avoided through the use of fly ash in concrete mixtures will be released into the 

atmosphere. Since the year 2000, this beneficial use has accounted for over 125 million tons of 

greenhouse gas avoidance. 

These are just some of the impacts of a Subtitle C hazardous waste rule in the continued recycling of 

CCP. So I repeat the question: What if you're wrong about beneficial use under Subtitle C rules? How do 

you restore decades of recycling success? How do you remediate the environmental damage of increased 

disposal? How do you remediate the damage of millions of tons –

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0024-2

Organization1:Haley & Aldrich

Commenter1:Chris Hardin

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

We oppose the Subtitle C option, a position which we believe is consistent with the views of virtually all 

states and the regulatory agencies, CCR marketers, beneficial users who feel that regulating CCRs under a 

record hazardous waste program does not provide the additional protection to human health and the 

environment than a Subtitle D option. In fact, Subtitle C regulations would cripple the CCR reuse 

industry that already has a strong rack -- track record of successfully recycling coal combustion products 

for beneficial reuse. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0029-2

Organization1:Progress Energy

Commenter1:Rob Reynolds

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Progress Energy strongly opposes the regulations of CCRs under Subtitle C. The comparatively stringent 

and costly Subtitle C program is not necessary to manage the relatively low toxicity of CCRs. An 

important aspect of the CCR regulation issue in terms of both cost and effective disposal is the 

availability of adequate infrastructure, specifically landfills that can and will accept hazardous waste.
105

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0037-3

Organization1:

Commenter1:Gary England

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Since the Kingston accident, coal ash is continually referred to as a toxic waste. 

The metals that are consistently referred to that many feel make coal ash toxic are also present in most 

everyday products that we all use. We have arsenic in treated lumber. Mercury is in lightbulbs and in 

fillings in our teeth. Selenium is in a multivitamin that most of us probably took this morning. 

Under the toxicity characteristic leaching procedure, or more commonly referred to as the TCLP test, 

which is the standard tests that EPA uses to determine whether a substance is toxic or not, coal ash does 

not meet that toxic material classification. EPA does not claim that coal ash is tox -- qualifies as a 

hazardous waste based upon its toxicity. Their justification for a hazardous waste regulatory approach is 

based upon damage cases related to failed disposal impoundments, not on the toxic nature of the material. 

There have been other catastrophic failures in releases of material that have resulted in much greater 

damage and death than those experienced at Kingston, but the EPA never considered to labeling material 

released as hazardous based upon damage claims. In 1976, the Teton Dam failed and killed 11 and 

damaged most of the town of Rexburg -- Rexburg, Idaho. The water that -- that was behind the dam was 

never considered hazardous. 

In 1919, a storage tank containing 2.3 million tons of molasses ruptured in Boston. It claimed 21 lives and 

destroyed an entire portion of lower Boston. The EPA never considered making molasses a hazardous 

waste. These are extreme illustrations, and I don't want to in any way discount or minimize the impact of 

the Kingston ac -- Kingston accident. My point is: Let's address the disposal standards, not the material.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0039-4

Organization1:SEFA Group

Commenter1:Burt Nunn

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

I urge you to please consider the science behind the material. By the EPA's own definition, fly ash is not 

hazardous. In fact, the trace amounts of heavy metals found in fly ash are not dissimilar from what we 

find in our own backyards and -- and waterways naturally. 

In summary -- in summary, fly ash is not hazardous; and therefore, the disposal of fly ash should not be 

regulated under Subtitle C. Listing and regulated fly ash under Subtitle C will create a tremendous 

reduction in the volume of fly ash and -- that is beneficially used and redirect millions of tons to landfills 

instead of away from overstressed landfills. 

I implore the EPA to implement an alternative to Subtitle C if it deems Subtitle D --

MR. HOFFMAN: Excuse me. Your time is up. 

MR. NUNN: -- to be inadequate.

Response: The Agency acknowledges and appreciates the comment. 
106

Comment Number: TRANS-KNX-0055-2

Organization1:American Electric Power

Commenter1:Matt Powell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Regulation of CCRs under the RCRA Subtitle C hazardous waste rules is simply not warranted due to the 

minimal environmental gain versus the significant financial costs that will accompany Subtitle C 

regulation. Extensive studies by EPRI and others have demonstrated that CCRs do not exhibit hazardous 

waste characteristics, and the EPA has previously reported to Congress that CCRs do not warrant Subtitle 

C regulation. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0061-1

Organization1:Headwaters Resources (spoke as employee)

Commenter1:David Lawrence

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

We have seen the stigma effect, we -- and we know its exists. And we've seen the expanded clay and 

shale people speak out against bottom ash. We have explained their motive has been monetary. They're 

greedy. They want our market -- marketplace. 

I have a document from a third party lab that actually gives TCLP results that compare the expanded clay 

and shale and bottom ash. Guess what? The expanded clay and shale exceeds bottom ash in several heavy 

metal areas. Imagine that. So much for their argument. It's simply more of the marketplace. 

Let's discuss for a moment who will pay for the fly ash and bottom ash going to a Class C landfill or 

additional on-site landfill costs. Look around. We will pay. We will pay additional attorney costs. And the 

poor will pay. The very people that can't afford additional costs, they're going to pay. 

So, please, let's keep fly ash and bottom ash in non-hazardous material

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0063-1

Organization1:Harsco Corporation

Commenter1:Tom Shaw

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.5.1.6

Comment Excerpt Text:

Since the 1930s, we have been a green recycler of boiler slag, one of the four major types of coal 

combustion byproducts. Boiler slag is formed when extremely hot molten coal ash is quenched with cold 

water and the coal ash immediately becomes a vitrified amorphous solid, glassy matrix soil known as 

boiler slag. Vitrification renders a material inert in a chemical process using heat. It transforms a mixture 

into a soluble liquid which solidifies on cooling, essentially encapsulation by nature. 
107

Because boiler slag is vitrified, it is a very durable and environmentally stable material that permanently 

immobilizes its chemical constituents in a glassy amorphous structure which remains stable even when 

broken into small fragments during abrasive blasting as evident by x-ray diffraction and TCLP data. 

Because it is beneficially reused, boiler slag is not commonly stored in surface impoundments. We 

regularly test our boiler slag, and it has always passed the TCLP testing and has never exhibited any 

hazardous waste characteristics. This includes both pre and post blast abrasive grit. 

The scientific information about boiler slag and its physical properties have not changed since we began 

our operations over 70 years ago. We have also tested our material using the recently developed 

Vanderbilt leaching procedure which is designed to reflect real world conditions, and the results confirm 

the absence of any hazardous waste characteristics. 

Regulating boiler slag destined for disposal as a special waste under Subtitle C would unfairly stigmatize 

beneficially reused boiler slag, as is already evident by competitive actions. We have seen no evidence 

that boiler slag meets any threshold for regulation under Subtitle C. We are not aware of any 

environmental problems linked to our products. 

As an abrasive, we are the primary alternative to silica sand, an abrasive that presents serious worker 

health concerns. We recognize the need for proper and environmentally sound standards for regulating the 

small percentage of boiler slag that is discarded rather than beneficially reused. 

Accordingly, consistent with the announced views of nearly 30 states and EPA's 2 previous 

determinations evaluating proper management of coal combustion byproducts, we support appropriate 

and reasonable disposal standards for any waste boiler slag under Subtitle D of RCRA

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0067-1

Organization1:Headwaters Resources (spoke as employee)

Commenter1:Shaun Ivey

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I have constructed ash management sales all through the southeast part of the United States without a 

failure. We do groundwater testing every quarter without a failure. Before the Kingston site, no one here 

has -- most of the people hadn't even heard of coal combustion byproducts. 

I strongly encourage the EPA to keep Subtitle D. It will encourage a lot of costs to go to Subtitle C

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0100-1

Organization1:Headwaters Incorporated (spoke as employee)

Commenter1:John Van Ham

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

There are a number of incontrovertible facts that must be discussed if coal ash is regulated Subtitle C. 

Designating coal ash as special waste that can also be use beneficially will destroy any kind of potential 

use of the ash due to stigma, which is already taking place. No one will want to utilize materials that are 

somehow considered both hazardous and nonhazardous. It's too confusing and obfuscates the fact that 

coal ash does, indeed, have a myriad of beneficial uses.
108

Subtitle C regulation will affect everyone who turns on a light switch. There will be large increases to 

power bills due to the cost of building numerous hazardous landfills and the loss of selling ash for 

beneficial use or sustainable construction. Considering the dire economic situation most Americans are in 

these days, rebranding coal ash as hazardous will put a huge dent in all of our pocketbooks, guarantee it. 

Additionally, no other country in the world considers it a hazardous material. 

What happened here at Kingston was a tragedy, to be sure. However, this tragedy was not due to the 

potential toxicity of fly ash. It was an engineering accident and should be addressed as such. 

Coal is what we have to produce electricity. It is still by far the most dependable and widely- used source 

for power. Each and every one of us uses it every day. And we have in fly ash the beneficial byproduct. 

We all take advantage of this benefit daily in the roads that we travel on, in the drywall and foundations 

of our homes, and our everyday lives. 

I urge you not to react, as most everyone seems to do in this day and age, with shrill and quick emotion. 

We have been using fly ash in con -- in concrete and construction reliably since the 1930s in the United 

States. 

Current science proves that the material is nonhazardous by your own standards. The eight heavy metals 

that we test for may be present in ash, but not in the levels that would classify them as hazardous. 

In fact, these same chemicals are found in native soil and rock. It's the same exact metals that are already 

found in the soil all around us. 

So in closing, I urge you to maintain the past technical findings, that coal ash's regulation under Subtitle C 

is unnecessary and unwarranted

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0103-1

Organization1:Headwaters Resources (spoke as employee)

Commenter1:David Marshall

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

As an individual who understands science and scientific process, the most disturbing charge against the 

Bush Administration was its willingness to allow science to be suppressed in favor of politicallyfavorable actions. The Obama Administration was elected partially in response to this type of behavior. 

It's a science based on the standards set by the EPA. It's clear that coal ash poses no greater harm to 

human health than any other building materials we use today. 

There are those in the audience today who will tell us that great harm is being done, but they have no hard 

specific evidence to document that. These charges have been thoroughly investigated and demi --

dismissed multiple times. 

And now we see the EPA, as an act of expedience, is putting on this show to allow people to express their 

opinions. The EPA has continued to dismiss the science that demonstrates clearly the effective use of coal 

ash is not harmful and is beneficial when 42% of the coal ash generated is used in this country. 

The administration is doing exactly what the Bush generation was --was doing, ignoring the facts and the 

science, and allowing a political popular sideshow to occur, and ignoring those of who have dedicated our 

lives to making use of byproducts because we know and believe in what we are doing. 

It's popular to attack coal through this backdoor method of product regulation, to attempt to eliminate 

coal, but that is not sufficient for those in the -- in the market. They want to use coal to stop use -- now --

coal use to stop now and completely. 

They are convinced that sufficient power can be generated from solar and wind and other reuseable. 

Those people have no stake in the game, did not understand the needs of meeting the long-term and 

continual supply of energy that is every day in our -- expected every day by our citizens. 
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The people who do have a stake in the game, the generators and distributors of electricity that power 

everything around us do understand that they are expected to be there when the light switch is turned on, 

when the iPod is plugged in. And while advances have made -- been made, energies from renewable is 

not there nor can be it -- can it be soon. 

Major utilities are not ignoring these potential sources of energy generation. They all have programs 

developing the grids, the technologies, and the processes to integrate all means of power generation to 

meet the needs in the U.S. and beyond its borders. 

Coal ash is not toxic. The science does not support that term. That adjective has begun to be attached to 

just about everything that the press reports on. Yet the term "toxic" has specific meanings. It has 

definitions outlined by the EPA guidelines. 

To regulate the EPA under a label -- by the EPA under a label of "special waste" is to deny what the EPA 

has supported and promoted for over 30 years, and would require the EPA to deny their own truth, their 

own science, and enable political expedience

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0125-2

Organization1:Dixie Electric Cooperative

Commenter1:Gary Harrison

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.3

Comment Excerpt Text:

We understand the need for the development of federal regulations that assure the safe disposal of CCRs, 

and we feel that the subtitle D prime option will meet this objective. On the other hand, we strongly 

oppose using the subtitle C approval. EPA can obtain a high level of protection for the environment and 

human health without resorting to the unnecessary and extreme measures of regulating CCRs under 

RCRA's hazardous-waste rules.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-KNX-0129-4

Organization1:PowerSouth Energy Cooperative

Commenter1:Keith Stephens

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

PowerSouth recognizes public concern over the handling and disposal of coal combustion residuals, or 

CCRs, and the EPA's obligation to protect the environment. However, the issue of whether CCR should 

be regulated as a hazardous waste has been thoroughly evaluated and resolved. In its 2000 regulatory 

determination, the EPA found that coal ash does not warrant hazardous- waste regulation, concluding 

instead that the most appropriate mechanism for regulation would be under subtitle D, non-hazardous 

waste regulations. There's no basis or need for -- to regulate under subtitle C, so the final course of action 

that the EPA chooses must be carefully considered to avoid unintended counterproductive consequences 

that would jeopardize beneficial uses and increase energy costs with no real environmental benefit.

Response: The Agency acknowledges and appreciates the comment.
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Comment Number: TRANS-KNX-0195-1

Organization1:SEFA Group

Commenter1:John Castleman

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Based on my experience, fly ash in and of itself is not a hazardous material, and the disposable of fly ash 

should not be regulated under Subtitle C. To do so will significantly reduce, or possibly even eliminate, 

the beneficial use of ash. 

EPA is proposing to label coal fly ash a "special waste" under Subtitle C, the hazardous waste section of 

the law, because it is, in EPA's words, "capable of posing a potential hazard to human health when 

improperly disposed of or ma -- or managed." The EPA position is that fly ash could pose a potential 

hazard if it is mismanaged. I do not disagree with this assessment. And further, I agree with EPA that the 

disposal of fly ash should be properly regulated in such a way to prevent mismanagement. However, coal 

a -- go -- coal fly ash does not need to be listed and regulated under the hazardous waste section of the 

law. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0001-2

Organization1:American Coal Ash Association

Commenter1:Thomas Adams

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

It's taken several decades of hard work to get to the 44% recycling rate of 2008. Is it really worth 

jeopardizing one of the great environmental success stories of recent history just to get a Subtitle C rule. 

We tell you today that Subtitle C will devastate the beneficial use industry

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0021-2

Organization1:E.ON U.S.

Commenter1:John Voyles

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

We strongly oppose regulation of CCRs under Subtitle C. Extensive study by the Electric Power Research 

Institute and others has demonstrated that CCRs do not have hazardous characteristics and EPA has found 

in the past that CCRs do not warrant regulation as a hazardous waste. The landfill design standards are 

almost identical under both the Subtitle C and Subtitle D options and environmental benefits would be 

virtually the same. However, compliance costs would be substantially higher under the Subtitle C 

hazardous waste option. 

Response: The Agency acknowledges and appreciates the comment.
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Comment Number: TRANS-LVL-0023-1

Organization1:Headwaters Resources (spoke as employee)

Commenter1:Bill Kane

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I've seen the utilization and recycling of CCPs increase dramatically. Not because everyone jumped on 

the recycling band wagon, but because company's realized what a great product fly ash is when used in 

their concrete. 

When using fly ash in concrete it will produce a cost savings, not just to the ready mixed producer but 

also to the customers. And -- and the -- the use of fly ash in concrete reduces the use of natural resources, 

mainly water and sand, but it also increases the strengths and the durability of the concrete. 

I strongly encourage the EPA not to classify CCPs as a hazardous waste under Subtitle C. I feel the EPA

should follow its final 2000 Regulatory Determination in which the agency determined that the regulation 

of CCPs under Subtitle C of RCRA is not warranted. In that determination the EPA also declared that 

RCRA Subtitle D would fully protect human health and the environment. The EPA went through decades 

of su -- scientific analysis to conclude that CCPs do not warrant hazardous regulations. 

If the EPA follows through with Subtitle C and classifies CCPs as a hazardous waste, it would eliminate 

one of the greatest recycling programs this country has ever participated in. It would increase utility rates 

substantially and destroy jobs. 

In this current economic time we are living in, I cannot see how the EPA would even consider classifying 

CCPs hazardous. The cost would be passed on to the American people and it would be enormous cost for 

people on fixed incomes, they could simply not afford this. 

In closing, there is simply no basis to pursue Subtitle C option for CCPs when there is a more viable and 

cost effective alternative in selecting Subtitle D non-hazardous waste. I strongly encourage the EPA to 

select Subtitle D in their final ruling

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0024-1

Organization1:Headwaters Resources (spoke as employee)

Commenter1:David Lawrence

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I want to speak a few minutes on stigma. Webster defines "stigma" as an expressed disapproval, blame, or 

censor. Webster also defines "reproach" as to express disapproval, blame, or censor. That's exactly what's 

happening today. No matter what the final outcome of the EPA's hearing, we are disgraced; we are 

blamed; we are reproached. 

The greatest example of this is right here in these meetings. In the Charlotte hearing you heard testimony 

from the expanded clay and shell people highly critical of bottom ash. Why? What were they critical of 

bottom ash? They have no emotional ties. There's no -- they had no toxic data. They have no cancer --

cancer stories to share. Why? Economics. We have market share they want. They can't outsell us; they 

can't out market us. So the only way to grain the market back is through you, the EPA and these hearings. 

Yes, the stench has been smelled. The buzzards are circling. Please do not allow this to occur. We ask you 

to keep the status of fly ash and bottom ash as non-hazardous

Response: The Agency acknowledges and appreciates the comment.
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Comment Number: TRANS-LVL-0025-1

Organization1:Headwaters Resources (spoke as employee)

Commenter1:Keith Seymour

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

You've heard during public hearings that fly ash causes cancer. My question is: Where's the proof? 

I personally contacted the Americ -- National Cancer Institute and asked them if they had heard of any 

cases that were directly related to fly ash as being the fau -- the cause of the cancer, and the answer was 

"No." There are thousands upon thousands of employees working in coal ash landfills every day 

throughout the United States. Have any of them ever deported (sic) and believes (sic) that fly ash was 

cause of cancer? The answer, again, is "No." 

I personally have worked in the industry for 25 years and have not developed cancer from being around 

fly ash, so the answer, again, is "No." 

I have children, too, and would not put them -- would not put them in harm's way. 

Fly ash is not a hazardous waste according to the Environmental Protection Agency. And this label is 

unwarranted. Coal ash does not qualify as a hazardous waste based on its toxicity. The toxicity of coal ash 

is similar to that of materials re -- that replaces recycling applications. 

EPA has their own tests. The EPA tests waste like coal ash like toxicity characteristics, better known as 

TLC -- TCLP, Toxicity Characteristic Lea -- Leachate Procedure to determine if it should be considered a 

hazardous waste versus a non- hazardous waste. Coal ash is regularly tested and -- under the TCLP 

criteria, and, therefore, has not, up to this point, been su -- been considered a hazardous waste, in large 

part due to scientific evidence. 

Other organizations such as EPRI, the Electric Power Research Institute, and as well as many colleges, 

universities, along with state and federal agencies have all come to the same conclusion, that fly ash is not 

a hazardous waste. 

The hazardous waste stigma is real. The plants that produce coal ash are unlikely to dis -- to disperse 

material at thousands of locations in the countryside if it were con -- deemed hazardous. Architects and 

engineers would not specify this product in the same manner. 

Products that compare with coal ash have already begun to use the potential hazardous waste designation 

to create fear and doubt in the coal ash uses. American public or the users in products produced with coal 

ash are highly succes -- successful to the message created, fear and doubt. 

Lip service won't save recycling. EPA uses the term "special waste" does not change the fact that Subtitle 

C would legally des -- designate coal ash as a hazardous waste when destined for disposal. 

The EPA's unrelated and unannounced suspension of the Coal Combustion Products Partnership, C2P2, 

far outweighs the agency's statements and news releases that the EPA supports coal ash recycling. 

Therefore, Subtitle D approach will do the same as Subtitle C but without the hazardous waste label 

attached to it. 

The Subtitle D non-hazardous approach will let recycling efforts continue and keep less coal ash in 

landfills, which is the whole matter we're here today (sic

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0030-2

Organization1:National Ready Mixed Concrete Association

Commenter1:Kerri Leininger

Commenter Type: Trade Association

Classification: Substantive
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Other Sections: 10.4.3

Comment Excerpt Text:

Based on the concrete industry's extensive use of reliance on fly ash in concrete and over examining 

EPA's proposed rule, we have determined a RCRA Subtitle C designation for CCRs bound for disposal, 

while retaining exemptions for beneficial use, will lead to the following unintended consequences for the 

concrete industry: An increase in production costs and the cost of construction, an increase in potential 

liability for concrete producers. 

Currently, the regulatory status of small amounts of fly ash in waste streams for concrete production and 

construction is unclear. Any proposed rule sould -- should explicitly state that such waste streams from 

the concrete industry are exempt and not subject to such regulations. There will also be litigation which 

will target existing structures built with fly ash and concrete. 

Potentially stricter state laws impacting beneficial use, for example, a proposed rule in the State of

Maryland states that any product containing fly ash is to be disposed of in a special facility authorized to 

accept fly ash. More states will establish similar laws as a result. 

The potential elimination of fly ash in -- in concrete. A hazardous waste stigma and fear of liability will 

drive specifying engineers, architects and end-users to disallow the use of fly ash in concrete. 

There will be a drastic impact upon the durability of our nature's -- nature's -- nation's infrastructure and 

the current re-authorization legislation of SAFETEA-LU

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0042-3

Organization1:Charah

Commenter1:Nathan Boone

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

A common theme that we've heard at these hearings is that -- by those favoring Subtitle C regulations is 

that C is the only approach that will protect our water resources regardless of the cost implications. 

I believe that we all support protection of our natural resources, however, Subtitle D regulations will 

provide the same engineering controls as Subtitle C for accomplishing this goal. We do not believe there 

to be enough difference between the environmental protective features proposed in the Subtitle C and D 

options to warrant risking the damage to the marketability of CCRs that we re -- believe will accompany 

Subtitle C

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0044-3

Organization1:Duke Energy Indiana

Commenter1:Bryan Walsh

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Additionally, I want to touch on briefly our opposition to the Subtitle C option. Duke agrees with the 

views of virtually all the states, many federal agencies, municipal and local governments, state public 

utility commissions, and many other third parties that regulating CCRs under RCRA's hazardous waste 

priv -- provision does not provide significant additional protection to human health or the environment. In 
114

fact, it would be counterproductive to do so because the Subtitle C regulation would cripple the CCR 

beneficial use industry

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0047-1

Organization1:Headwaters Resources (spoke as employee)

Commenter1:Doug Anderson

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I have also seen the beneficial reuse tonnages increase yearly as new programs have developed, it is 

estimated we have utilized between 50- and 60-million tons into beneficial reuses here in the United 

States of America. 

It is with great concern the EPA regulate CCBs as a listed waste under the hazardous waste authorities of 

Subtitle C of the Ra -- of the Resource Con -- Conservation and Recovery Act. If the Subtitle C option is 

passed, all of these CCBs would have to be placed in a landfill or a holding pond, which is how we 

arrived here today. 

If these tons were beneficially reused in a responsible manner, the incident at the Kingston landfill never 

takes place. I don't understand why the EPA would want that situation to exist. These 50- to 60-million 

tons would not be recycled but landfilled. 

Many people will be directly affected by the Subtitle C ruling. Ready mixed concrete producers who will 

not use CCBs will see their raw material costs rise as well as some quality of their concrete decrease; 

concrete prices will increase; trucking companies will have insurance costs rise; landfill costs would 

significantly increase, which, in turn, raises our electricity rates. Marketers of CCBs will lose jobs and 

significant progress of beneficial reuses will be lost. 

Already some producers that I have seen of CCBs will not release their material into already approved 

uses in fear of this ruling and the stigma of this ruling. The potential stigma that will be associated by this 

ruling has caused that. 

One of the most positive and progressive programs that has come into my industry has been the Green 

Building & LEED's program. The government has been behind this program. 

Coal Combustion Byproducts is one of the greenest materials you can find. This building we are in today 

contains CCBs as does the sidewalk outside and the street next to that. 

It is my hope and request that you, the EPA, try and develop a federal program for CCB disposal under 

RCRA Subtitle D, Non-Hazardous Waste Program, which provides virtually the same safeguards to the 

public as does Subtitle C, so we can keep American people working and developing more beneficial 

reuses in this green building environment

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0053-1

Organization1:Harsco Corporation

Commenter1:Tom Shaw

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Since the 1930s we have been a green recycler of boiler slag, a coal combustion by- product. Boiler slag 

is formed when extremely hot, molten coal ash is quenched with cold water, and the coal ash immediately 
115

becomes a vitrified amorphous, solid, glassy matrix known as "boiler slag." Vitrification renders a 

material inert in a chemical process using heat to transform a mixture into a soluble liquid which 

solidifies on cooling. 

Because boiler slag is vitrified, it is very durable and environmentally stable material that permanently 

immobilizes its chemical constituents in a glassy amorphous structure, which remains stable even when 

broken into small fragments during abrasive blasting as evident by x-ray diffraction and TCLP testing. 

Because it is beneficially reused, boiler slag is not commonly stored in surface impoundments. We rig --

regularly test our boiler slag. It has always passed the TCLP testing and has never exhibited any 

hazardous waste characteristics. This includes both pre- and post-blast abrasive grit. 

The scientific information about boiler slag and its physical properties have not changed since we began 

our operations 70 years ago. 

Regulating boiler slag destined for disposal as a special waste under Subtitle C would unfairly stigmatize 

beneficially reused boiler slag as is already evident by competitive actions. We have seen no evidence 

that boiler slag meets any threshold for regulation under Subtitle C, and we are not aware of any 

environmental problems linked to our products. 

As an abrasive we are the primary alternative to silica sand, an abrasive that presents serious worker 

health concerns. 

We recognize the need for proper and environmentally sound standards for regulating the small 

percentage of boiler slag that is discarded, rather than beneficially reused. Accordingly, consistent with 

the announced views of nearly 30 states and EPA's two previous determinations evaluating proper 

management of coal combustion byproducts, we support appropriate and reasonable disposal standards 

for any waste boiler slag under Subtitle D of RCRA

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0058-2

Organization1:Gibbco

Commenter1:Brian Keplinger

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

While I applaud the EPA for their work in safeguarding the environment, I have to question how the 

structural failure of an ash impoundment dike, while certainly a disaster and not to be taken lightly, leads 

to the regulation of CCPs as a hazardous waste. A Subtitle C designation for the materials that I use every 

day would have disastrous results for us.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0062-2

Organization1:Duke Energy

Commenter1:David Weiss

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Since the initiation of this rule-making effort, an over whelming number of government entities have gone 

on record supporting a non-hazardous waste designation, including more than two dozen state 

environmental protection agencies, a bipartisan group of 165 members of Congress and 45 U.S. senators. 

The Subtitle D option provides the only reasonable and lawful regulatory approach for these materials 
116

under RCRA. The characteristics of CCRs have not changed since EPA's last determination, and there's 

no new science to support a federal hazardous designation. 

Adoption of the Subtitle C Option will only raise electric costs for consumers and jeopardize CCR reuse 

without delivering additional health benefits

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0085-4

Organization1:

Commenter1:Bill Chlebowy

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

It takes 55 gallons of oil to produce one ton of cement for concrete. If the 13 million tons of fly ash used 

in place of cement per year cannot be used anymore and the industry has to revert back to cement, oil 

equal to approximately 35 Exxon Valdez oils spills or 4 Gulf oil spills per year would be needed to 

produce the cement that is replaced with coal ash. 

I'm sure it is in country's our (sic) best interest to avoid using extra oil equivalent to that of 4 Gulf oil 

spills every year if coal ash cannot be beneficially used in concrete. 

In conclusion, regulating coal ash under hazardous waste rules is an overreach by the federal government. 

It will raise the cost of electricity, kill jobs, and kill the recycling industry. The rule change doesn't make 

sense and is not needed, especially as our country is trying to climb out of a recession

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0097-2

Organization1:Kentucky Coal Association

Commenter1:Bill Bissett

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The Kentucky Coal Association believes that the rationale articulated by the EPA in support of its 

proposal is wholly and without merit. The EPA has suggested that this proposed action is an appropriate 

response to the TVA's release of coal combustion residuals from its Kingston, Tennessee facility. The 

cited release is a reflection of methodology used in construction and operation of the facility rather than 

the hazardous or non- hazardous nature of coal combustion residuals, and provides no legitimate basis for 

listing such materials as hazardous waste under RCRA. 

The EPA has also suggested that the proposed listing is necessary in order to provide the federal rather 

than state regulation of coal combustion residuals. This suggestion is in conflict with the basic concepts of 

federalism upon which this nation's environmental programs are premised, and represents an affront to the 

state agencies that have effectively regulated coal combustion residuals for so long. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0117-3

Organization1:
117

Commenter1:Ron Roberson

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

I support coal ash disposal regulations that protect human health and the environment only if it merits the 

facts that support it, but I do not see any way that a person or a group of people can say that coal ash is 

harmful to the environment. 

As I close, I'd like to thank the panel for the opportunity to voice, be heard, and my voice is that the EPA 

not designate coal ash as a hazardous substance

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0139-1

Organization1:Kentucky Chamber of Commerce

Commenter1:Chad Harpole

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 9.3.7

Comment Excerpt Text:

On behalf of the Kentucky Chamber and our 2700 member companies across the state, we appreciate the 

time to express our concern in opposition with the proposed regulation of fly ash as Subtitle C, hazardous 

waste under the Resource Conservation and Recovery Act. The Kentucky Chamber believes regulating 

fly ash under the Subtitle C option will impose significant cost on power plant operations and ultimately 

result in additional utility cost increases for businesses and consumers.

Kentucky is proud to be the fifth leading producer of energy in the country, driving significant 

manufacturing in our state, including automotive production and aluminum. Most of this is thanks to our 

coal industry, which is vital to Kentucky's economy and threatened under the Subtitle C proposal. The 

Chamber feels these additional costs may cause some power plants to close or significantly reduce 

production in our state, thus threatening electricity reliability and signif -- significantly affecting local

economies through the reduction in payroll taxes and employment numbers. 

Increased energy costs and decreased electric liability will also have a significant adverse effect on all 

sectors of the business community and can potentially force Kentucky businesses to relocate out of the 

state. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0154-2

Organization1:E.ON U.S.

Commenter1:Mike Winkler

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.3

Comment Excerpt Text:

Any federal regulations should be adopted under the RCRA Subtitle D program rather than a Subtitle C 

hazardous waste program. 

Regulation under Subtitle C would be administratively burdensome, unnecessarily expensive and provide 

little environment benefit. Fundamental problems with the Subtitle C approach are evident from the fact 

that virtually every state and environmental agency in the nation opposes regulation of CCRs as 
118

hazardous waste. L -- LG&E and KU support the "D Prime" alternative that would allow continued 

operation of existing ash ponds that are operating in a manner insuring appropriate protection of public 

health and the environment. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-LVL-0175-2

Organization1:Kentucky Association of Manufacturers

Commenter1:Greg Higdon

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

Kam opposes the regulation of coal combustion residuals under the Resource Conservation Recovery Act 

Subtitle C, hazardous waste rules. Several states, including Kentucky, already regulate coal combustion 

residuals in conjunction with solid waste programs dealing with non- hazardous waste. KAM believes 

that if it is necessary to develop a national approach to the regulation of coal combustion residuals, U.S. 

EPA should do so under the auspices of RCRA Subtitle D. Such an approach would allow EPA to work 

with states in implementing regulations that are fully protective of human health and the environment 

without negatively impacting coal ash beneficial use and causing an increase in energy prices at a time 

when the economy can least afford it. 

The regulation of coal combustion residuals under RCRA's hazardous waste rules would be regulatory 

overkill and not -- and would not be economically practical. Coal combustion residuals are industrial solid 

waste that are often beneficially reused. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-PIT-0006-3

Organization1:PPL Corporation

Commenter1:Craig Shamory

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.5.1

Comment Excerpt Text:

PPL strongly opposes federal Subtitle C regulation, and instead requests that EPA regulate CCR's under 

the Subtitle D prime option, including a modification that integrates with current state regulatory 

programs such as Pennsylvania's Residual Waste and Dam Safety Regulations. This approach will create 

a reasonable and effective regulatory program that protects the environment, retains options for beneficial 

use, and preserves jobs, while not adversely impacting our economy.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-PIT-0009-4

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:
119

A Subtitle C designation will only harm conservation and recovery by leading to the disposal of tens of 

millions of tons of material every year that could otherwise be safely put to good use.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-PIT-0012-1

Organization1:Separation Technologies LLC

Commenter1:David Brader

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

I am adamantly opposed to the Subtitle C designation, or any connection between the words hazardous 

and fly ash within regulatory language. 

We have heard the contextual implications between fly ash and negative health effects. In reality, the 

implications sited are no more evidence of causality than me saying, everyone I have ever known who has 

drunk water, has died.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0012-3

Organization1:Separation Technologies LLC

Commenter1:David Brader

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

In an age where we know sustainability is the key to our long term survival, there is no action that will be 

more unsustainable than to associate hazardous terminology with fly ash whether it is for beneficial use or 

not.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-PIT-0013-1

Organization1:Association of Canadian Industries Recycling Coal Ash

Commenter1:Anne Weir

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

Subtitle D and K options stipulate responsible management practices, promote responsible use of Ash, 

respond to market demand and enable the continuation of cross border trade. Subtitle C endangers crossborder trade and its substantial environmental and economic benefit to both our nations. I implore you to 

reject Subtitle C

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-PIT-0014-3

Organization1:Mettiki Coal, LLC
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Commenter1:Jim Ashby

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Lastly, Mettiki strongly opposes EPA's proposal to reverse the 1993 and 2000 Bevill Regulatory 

Determinations which correctly concluded that CCRs should be regulated as non-hazardous wastes. A 

reversal of this well reasoned determination would threaten the beneficial reuse industry and the jobs it 

supports. Mettiki also opposes listing CCRs as special wastes and subjecting these materials to hazardous 

waste regulation under Subtitle C of RCRA.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-PIT-0025-1

Organization1:Alcoa

Commenter1:Tony Schoedel

Commenter Type: Other Company

Classification: Substantive

Other Sections: 2.3.1

Comment Excerpt Text:

One, Alcoa believes that the use of Subtitle C is an approach to regulate CCR's higher than warranted. 

The use of modified TCLP to model and justify the destination of CCR's are hazardous, we believe 

misuses that test method as it does not accurately model the actual releases from many aspects, most 

specially developers out in the midwest. As ours when it comes in contact with water becomes alkaline 

not acidic. The test data from our fly ash surface impoundments both open and closed indicate that our 

ash is nonhazardous. The material has exhibited that for the last 20 years, if not more. The data we 

derived from our groundwater testing as part of our Electro Facility Investigation and the RFI, public 

knowledge, our fly ash shows no detection of any chemicals of concern in the groundwater. 

Alcoa believes that the EPA has exhaustedly researched the toxicity of CCRs in the past, and has at least 

once affirmed the exclusion, under the Bevill Exclusion from the management of hazardous waste, and 

we encourage you to continue that designation. As such, we really see no technical scientific basis for 

changing that designation now. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-PIT-0028-1

Organization1:Headwaters Resources (spoke as employee)

Commenter1:Mike Robinson

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I work for a very reputable company who directly or through our predecessor companies has been 

involved in the utilization of coal ash for well over the 20 years that I have been with our company. 

Because of my long-term intimate associations with not only our management people, but also our 

technical staff, I can tell you our commitment is not only to the utilization of coal ash, but also the 

environment, but, in fact, it is our intention to increase safe utilization of ash and decrease ash going to 

landfills, which ultimately provides sustainable benefits to our environment. For these reasons and others 

I will touch on, I oppose classifying ash as a hazardous material under any circumstances.
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Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0032-1

Organization1:

Commenter1:Darrell Wilson

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I oppose Subtitle C designation because it will negatively affect beneficial use. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-PIT-0059-1

Organization1:American Electric Power

Commenter1:Steven Orenchuk

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.3 4.5.1

Comment Excerpt Text:

It is my professional opinion that the US EPA's proposed regulation of CCRs under the RCRA Subtitle C 

hazardous waste rules is excessive and unwarranted. The correct approach for US EPA to take is to 

regulate CCRs under the Subtitle D Prime option. 

Regulation of CCRs under the RCRA Subtitle C hazardous waste rules is not worth the incremental 

environmental gain versus the extreme financial costs which will accompany this level of regulation. It is 

necessary that in any type of rulemaking, U.S. EPA is cognizant of the broad economic impacts which 

there will be in response to such an undertaking. Protection of human health and the environment from 

the disposal of CCRs regulated under the Subtitle D Prime option is more than acceptable considering the 

potential threat that these materials pose. In addition to providing the necessary protection of human 

health and the environment, the Subtitle D Prime option will bear the least cost on the end user of coalfired electric generation, i.e. customers like you and I. 

Since the promulgation of CCR regulations under the Subtitle D Prime option affords the necessary level 

of protection of human health and the environment without imposing the unnecessary costs associated 

with over regulation, how can U.S. EPA in good conscience propose a set of regulations as irresponsible 

as the Subtitle C hazardous waste regulations for managing CCR disposal? This type of action is illogical 

and represents the wasteful allocation of the American public's financial resources. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-PIT-0066-2

Organization1:Headwaters Resources

Commenter1:Mike Adams

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

The two regulatory options before us comment today -- the Subtitle C hazardous approach and the 

Subtitle D non-hazardous approach -- both propose new landfill engineering standards that are essentially 

the same. Landfills won't be any stronger or better under Subtitle C, but coal ash recyclers will be saddled 
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with a hazardous waste stigma that will make continued recycling of this resource difficult or impossible. 

I repeat, as the stated examples show, stigma is real

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-PIT-0069-4

Organization1:FirstEnergy

Commenter1:Ray Evans

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

In closing, let me reiterate that a non-hazardous regulatory framework will improve environmental 

conditions across the country while preserving the jobs and economic growth related to the beneficial use 

of ash. In contrast, regulation of CCRs as hazardous waste would lead to higher costs and divert more of 

this material to landfills, without achieving any meaningful environmental improvement.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-PIT-0086-2

Organization1:

Commenter1:Stephen Gasiorowski

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

As discussed in the preamble of the proposed regulations, the vast majority of fly ash does not exhibit 

toxic characteristics. While coal fly ash contains arsenic, lead, and other potentially toxic constituents, 

extremely few fly ashes exhibit leachable toxic materials at greater than 10 percent of regulatory levels. 

The tiny proportion of ashes that exhibit such toxic characterizations are already regulated under RCRA 

Subtitle C. Utilization of fly ash in concrete production of other products that result in encapsulation of 

the fly ash dramatically reduces even this small potential for release of toxic materials. The measured 

leachability of fly ash containing concrete is so low that such concrete has easily met criteria to be used in 

direct exposure to municipal drinking water supplies. 

Documented damage cases from disposal of fly ash leading to surface or ground water contamination 

have resulted from already discredited practices, clear mismanagement, or will be phased out under either 

proposed Subtitle C and D designation of CCRs. Thus, a Subtitle C designation will only impose an 

onerous stigma on the material, drastically reducing beneficial use without materially affecting the 

handling and disposal practices. 

Based on these facts, regulation of coal fly ash under RCRA Subtitle C is unwarranted. To do so will 

serious impact the beneficial use of the material, to the detriment of the construction industry and public 

infrastructure. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-PIT-0092-3

Organization1:Separation Technologies

Commenter1:Kyle Flynn

Commenter Type: Beneficial User

Classification: Substantive
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Other Sections: 10.4.3

Comment Excerpt Text:

Instead of being recycled, this material will be sent to a landfill, an expensive and unnecessary cost that 

will ultimately be carried by electricity consumers. 

Allowing coal ash to accumulate in landfills across the country is not only costly, but unwarranted. In 

numerous documents, including testimony given to Congress as recently as 2008, the EPA has asserted 

that the risks associated with the reuse of coal ash in concrete are, quote, likely to be insignificant. In 

2000, the EPA concluded that national regulation under the Resource Conservation and Recovery ACT, 

RCRA, is not warranted. The science behind coal ash has not changed since these statements were issued, 

only the politics. 

In summary, I urge the EPA to carefully consider the effects of the proposed Subtitle C regulatory 

approach, and the unintended consequences that would follow in its wake. Coal ash does not meet the 

qualifications for hazardous waste, and should not be labeled as such. Such a stigma would limit its 

beneficial reuse and increase the volume of coal ash landfilled each year. The environmentally 

responsible thing to do is support beneficial as a means of reducing coal ash waste.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-PIT-0100-1

Organization1:Abrasives Incorporated

Commenter1:Russell Raad

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

As an owner of a profitable, surviving North Dakota business, I came here to ask EPA to consider 

scientific data, as well as the practical implications of regulating boiler slag not as a Subtitle C hazardous 

waste. 

I believe that as a matter of sound science, boiler slag does not meet the definition of a hazardous 

material, thus should not be defined as a hazardous waste. My question to the EPA is, by definition what 

identifies boiler slag chemically or scientifically as a hazardous material or waste in the CFR40? Does it 

have the definition characteristics of ignitability, corrosivity, reactivity, or toxicity? My research says no

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-PIT-0102-2

Organization1:Pennsylvania Department of Environmental Protection

Commenter1:Mike Forbeck

Commenter Type: State Government

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

Pennsylvania does not believe that additional regulations for the management of coal ash beyond RCRA 

Subtitle D are warranted. Classifying coal combustion residues under RCRA Subtitle C would create 

unnecessary burdens to current management practices without producing any greater degree of 

environmental or public health protection. The Commonwealth opposes the rulemaking for Subtitle C, 

and is in support of a Subtitle D proposal with implementation authorization continuing with the states.

Response: The Agency acknowledges and appreciates the comment.
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Comment Number: TRANS-PIT-0107-1

Organization1:Ohio Coal Association

Commenter1:Mike Carey

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Mandating coal ash as a hazardous waste is ridiculous. Doing so will not result in environmental 

protection, but only more owners' regulatory burden. 

Further, the nation's existing hazardous waste landfills are not designed to deal with the characterization 

of coal ash as hazardous. The sheer product of coal ash, which is swamp, the limited capacity of the 

nation's landfill and properly, safely managing each of its hazardous waste facilities. 

The new proposed rule is aimed at exactly that. Making coal-fired power and manufacturing coal 

impossible because of the high cost of the regulatory burden. Each dollar going towards the cost of the 

unnecessary regulation is a dollar that will not be spent on the employees and the communities of the 

future

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-PIT-0117-3

Organization1:Ohio Ready Mixed Concrete Association

Commenter1:Gregory Colvin

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

In summary, the reclassification of fly ash as a hazardous material, whether exempt from regulation or 

not, would cast a negative stigma on the product. It would significantly reduce the amount being used in 

concrete, if not end its use altogether. Fly ash has been reviewed and classified as non-hazardous by the 

EPA in the past. This product has not changed since that review. The use of fly ash in concrete products is 

a win-win scenario. It not only enhances the strength and long term durability of the concrete, it helps 

protect the environment. Therefore, the Ohio Ready Mixed Concrete Association strongly urges the EPA 

not to reclassify this product as a hazardous material

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-PIT-0121-1

Organization1:Alpha Natural Resources

Commenter1:Bill Schloemer

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

We are strongly opposed to the regulation of coal combustion residuals or CCRs under Subtitle C. 

Although, we have some reservations, we are in favor of regulation of CCRs under the option of Subtitle 

D. 

Our corporation and industry is concerned with additional needless regulation that drive up the cost of 

coal and puts mining investments and thus jobs at risk, especially at a time when our nation needs all 

forms of reliable and clean energy to drive the economy, create and sustain jobs well into the future. 
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Decades of study from the EPA indicate the regulation of CCRs under the option of Subtitle C, and thus a 

hazardous waste classification, is not warranted. We believe the option of regulating CCRs under Subtitle 

D would provide an adequate protection of human health and the environment. Subtitle C would provide 

an undue financial burden on the electric generation industry that would be passed on to the consumers 

resulting in higher electric bills. Some estimates indicate the additional annualized cost of Subtitle C 

verses D to be $12 billion. These types of uncertain government regulations and associated costs that add 

risk to mining ventures and make the likelihood of the huge capital investment and potential jobs to be 

created less certain

Response: The Agency acknowledges and appreciates the comment.

Section 3.2.4 - Other enforcement issues/concerns

Total Number of Submissions: 12

Total Number of Comments: 12

Comment Number: TRANS-CHI-0064-3

Organization1:Peoria Families Against Toxic Waste

Commenter1:Tracy Fox

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.2.4

Comment Excerpt Text:

The second reason why I think C is so important is because it includes enforceable corrective action, and I 

think that's a key difference. As someone who has looked at the numerous reports showing water quality 

violations, well incursions and other monitoring problems, and to realize that Subtitle D includes no 

enforceable corrective action, all the self-imposed monitoring and reporting in the world is worthless 

without that.

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: TRANS-PIT-0029-1

Organization1:Ebensburg Power Company

Commenter1:Gary Anderson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

The ARIPPA organizations promote the National Academy of Science study. While EPA sites the NRCNAS Study concerning ash in its preamble it ignores its scientifically based factual findings, which 

include enforceable federal standards should be established to ensure that states have specific authority 

and implement adequate safeguards. Primary regulatory mechanisms that should be used to develop 

enforceable standards are SMCRA, joint OSM-EPA, or RCRA-D rules

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 
126

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Section 3.4.1.1.1 - Proposed requirement for composite liner and leachate collection/removal system 

(35174)

Total Number of Submissions: 29

Total Number of Comments: 41(Note only one of the comments in this section came from the public 

hearing)

Comment Number: TRANS-ARL-0082-5

Organization1:

Commenter1:Jessica Miller

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I do want to stress that as to the surface impoundments built after the rule, it's very important that 

companies actually get jobs when it comes to liners being required.

Response: The Agency acknowledges and appreciates the comment. 

Section 3.4.1.3.1 - EPA solicits comment on adequacy of proposals to address SI integrity under 

RCRA Subtitle C (35223); on proposal to adopt MSHA standards to address SI integrity under 

RCRA (35176); on whether to address all CCR SIs for stability, regardless of height and storage 

volume; whether to use MSHA cut-offs; or whether to use other regulations, approaches, or size 

cut-offs instead (35176, 35223)

Total Number of Submissions: 18

Total Number of Comments: 27(Note: only one of the comments in this section came from the public 

hearing)

Comment Number: TRANS-ARL-0103-4

Organization1:Environmental Defense Fund

Commenter1:Bill Petty

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Finally, EPA should adopt MSHA-style regulations for the storage of wet CCR waste and all surface 

dams and impoundments. Such regulations would require facilities to conduct and submit to the EPA or 

the state important plans for the design, construction, and maintenance of existing impoundments, plans 

for closure, and to conduct periodic inspections by trained personnel. Due to the toxicity of CCRs and the 

number of high-hazard facilities, such regulations should apply regardless of size.

Section 3.4.1.4 - Wet handling of CCRs, closure, and interim status for SIs, including SI retrofit 

requirements (35176-35179)
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Total Number of Submissions: 23

Total Number of Comments: 28(Note: only those comments that were heard at the public hearings are 

included in this section.)

Comment Number: TRANS-ARL-0082-3

Organization1:

Commenter1:Jessica Miller

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

For the surface impoundments that have been built before and after this rule, I am glad to see that both 

proposals include testing of the water. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0184-5

Organization1:Kentucky Resources Council

Commenter1:Tom Fitzgerald

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Finally, the use of embankment impoundments for management of coal waste slurries should be 

eliminated in favor of dry ash and gypsum management, and existing slurry impoundments closed unless 

it can be demonstrated that they were designed, engineered and constructed according to sound 

engineering practice.

Response: The Agency acknowledges and appreciates the comment. 

Section 3.4.1.4.2 - EPA solicits comment on whether 7 years (5 years to cease receiving waste and 2 

years to close) from effective date to implement these provisions is an achievable time for facilities 

to comply (35178); EPA seeks comment on procedural or technical issues, e.g., time for allowing 

permit modifications for new capacity or EPA or state approval of closure plans (35179)

Total Number of Submissions: 22

Total Number of Comments: 28 (this section only includes those comments from the public hearing and 

not in response to the proposed rule.)

Comment Number: TRANS-CLT-0012-3

Organization1:

Commenter1:Stephan Bray

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 4.6.1.4

Comment Excerpt Text:

Thirdly, the proposed timeline for closure of existing ash impoundments under both options is too short. 

Both the hazardous and nonhazardous proposal generally require impoundments to be closed within 5 to 7 
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years. Some sites may choose to close the impoundments by de-watering and capping over the in- placed 

waste. Whereas, other sites may find it more appropriate to remove the waste and place it in lined 

landfills. 

Based on my experience, the proposed allowable time may not be long enough to adequately investigate, 

plan, permit and execute closure. These concerns are primarily warranted for those impoundments for 

which appropriate closure includes removal and landfilling of millions of cubic yards of waste.

Response: The Agency acknowledges and appreciates the comment. 

Section 3.5.1 - Effective dates, including comments on effective dates might vary as states adopt rule 

individually (35190-35191)

Total Number of Submissions: 15

Total Number of Comments: 20 (Note this section only includes comments heard at the public hearings).

Comment Number: TRANS-ARL-0082-1

Organization1:

Commenter1:Jessica Miller

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

I am supporting Subtitle C with the exception that the enforcement date should be changed to be taking 

effect 6 months after the ruling, if not sooner, since time is of the essence as the folks who have talked 

about their experiences and negative health impacts of this on their lives and their families. 

Response: The Agency acknowledges and appreciates the comment. 

Section 3.6 - RCRA Permit Requirements by Facility Status (35189-35190)

Total Number of Submissions: 6

Total Number of Comments: 7(this section only includes comments heard at the public hearings.)

Comment Number: TRANS-CHI-0064-1

Organization1:Peoria Families Against Toxic Waste

Commenter1:Tracy Fox

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

As a local activist, I feel the first key for Option C is the permitting. I feel that permitting is essential if 

communities are to maintain control and determine the character of their surroundings. I don't feel that 

anything in the industry's voluntary self-regulated Subtitle D option gives citizens any input into the 

process as to where these coal ash impoundments would be sited, how they would be managed, and how 

they would fit in to the cumulative pollution burden that any community is going to bear.

Response: The Agency acknowledges and appreciates the comment. 

Section 3.7.4 - Closure and post-closure care (35182)
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Total Number of Submissions: 13

Total Number of Comments: 19 (This section only includes comments heard at the public hearings.)

Comment Number: TRANS-CHI-0064-2

Organization1:Peoria Families Against Toxic Waste

Commenter1:Tracy Fox

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Thirdly, I believe that the clearly delineated post closure care and financial responsibilities that are only 

included under Subtitle C are critical. Otherwise, the long-term maintenance of these sites is left in the 

hands of the state which is understaffed and under-equipped to deal with the existing superfund sites 

that we have, let alone new ones. Only Subtitle C includes the right tools to manage this deadly coal ash 

waste.

Response: The Agency acknowledges and appreciates the comment. 

Section 3.11 - Other

Total Number of Submissions: 23

Total Number of Comments: 33(This section only includes comments heard at the public hearings.)

Comment Number: TRANS-KNX-0102-1

Organization1:

Commenter1:Henry Fair

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I've looked at a number of coal ash sites in the United States and around the world, and I'd like to point 

out, first, that the reason the United States is addressing this issue is precisely the -- because we've had 

a catastrophic event. There are over 100 cases of groundwater contamination, and those are only ones 

we know. There are over 44, according to the EPA report, cases of high-hazard impoundments. And 

again, those are just the ones that we know. There's coal ash stored in many places we don't know. 

I would argue that it is the role of the federal government to protect its citizens and not to protect the 

fiduciary interests of manufacturers in an industry. I think that Subtitle C is probably not enough. 

I think that all sites should be monitored for groundwater contamination. I think that all sites should 

have a liner. And I think that all sites should be capped so that windblown dust is not a problem

Response: The Agency acknowledges and appreciates the comment. 

Section 4.1.1 - Support Subtitle D proposal

Total Number of Submissions: 553

Total Number of Comments: 710

Comment Number: TRANS-ARL-0021-1

Organization1:Anne Arundel County

Commenter1:John Leopold

Commenter Type: Local Government
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Classification: Substantive

Other Sections: 6.1.1 3.1.1

Comment Excerpt Text:

SPEAKER NO. 1: Good morning. I am here this morning speaking on behalf of County Executive John 

Leopold from Anne Arundel County, Maryland. His testimony: 

"I strongly support the proposed rule to regulate the management and disposal of coal ash and coal 

combustion residuals generated by electric utilities and independent power producers. I further support 

Options C and D under the Resource Conservation and Recovery Act to address human health concerns 

and structural integrity issues associated with coal ash impoundments and landfills. 

"The disposal of coal ash and coal combustion residuals poses a serious threat to the public health and the 

environment. Coal combustion residuals generated by electric utilities and independent power producers 

contain heavy metals that pose a serious health risk and can adversely affect ground and drinking water 

supplies. 

"An investigation in Anne Arundel County, Maryland, in 2007, identified the presence of heavy metals in 

groundwater that resulted from the disposal of coal ash and coal combustion residuals at a sand and gravel 

surface mine. Arsenic, cadmium, chromium, aluminum, thallium, and beryllium were identified in 

groundwater and directly affected off-site private wells and drinking water supplies. 

"The disposal of coal combustion residuals caused significant public health and environmental concerns 

in Anne Arundel County, Maryland, ranging from contamination of groundwater, nuisances from 

airborne dust, and adverse effects on private drinking water supplies. In 2007, 2008, and again in 2009, 

the county executive secured County Council approval of legislation he proposed to ban the disposal of 

coal ash and other coal combustion residuals in Anne Arundel County, Maryland. He continues to support 

this legislation and has great concern for the management and disposal of this material at landfills and 

service impoundments on a national level. 

"He strongly supports the development of a state and federal permit program as proposed under Subtitle C 

which provides the minimum level of protection necessarily to protect public health and the environment. 

The classification of coal ash and coal combustion residuals as a special waste under the Resource 

Conservation and Recovery Act will ensure the necessary regulatory oversight will be in place to 

adequately address the storage, manifest, transportation, and disposal of coal ash and coal combustion 

residuals. This option also requires the installation of liners and groundwater monitoring at new landfills 

and provides the greatest benefit to protect human health, the environment, and our limited resources. 

"The requirements proposed in Option D provide additional measures to protect public health and the 

environment through retrofitting existing surface impoundments with liners and through improvements in 

the structural integrity of existing surface impoundments. These measures will further reduce the risk of 

surface impoundment failure and provide the added protection to human health, surface and drinking 

water supplies, and our limited water resources." 

The county executive wants me to note that there is a flaw with the proposed rule in that it does not 

address exposure to fly ash from fugitive dust. Maryland is among the 42 states --

MR. DELLINGER: Your time limit is up. 

SPEAKER NO. 1: Can I finish? I have just a little bit. 

MR. DELLINGER: Real quick. 

SPEAKER NO. 1: Pardon me? 

MR. DELLINGER: Real quick. 

SPEAKER NO. 1: Okay. As this matter is of great urgency to the citizens of Anne Arundel County, the 

county executive strongly supports options Subtitle C and D under the proposed rule.

Response: The Agency acknowledges and appreciates the comment. 
131

Comment Number: TRANS-ARL-0025-2

Organization1:Geosynthetic Materials Association

Commenter1:Boyd Ramsey

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

A brief word on the hazardous/nonhazardous question. While coal ash does contain heavy metals, it lacks 

the traditional characteristics of hazardous materials: Radioactivity, the presence of infectious medical 

waste, et cetera. In the opinion of our trade organization, coal ash can be properly stored using Subtitle D 

regulations, a nonhazardous solid waste designation, and composite lining systems

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0053-3

Organization1:American Coal Ash Association

Commenter1:Thomas Adams

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The Board of Directors of the American Coal Ash Association passed a resolution earlier this year 

supporting national enforcement authority for EPA under Subtitle D of RCRA. The same resolution calls 

for opposition to any form of Subtitle C regulation. We simply cannot afford to risk the progress and 

recycling CCPs for the sake of creating the most extreme regulation for disposal. Disposal requirements 

are the same under Subtitles C and D and we call on EPA to say yes to the continued safe recycling of 

CCP with Subtitle D regulation of coal ash disposal. We hope you'll rule on science and not science 

fiction or political science

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0062-1

Organization1:Old Dominion Electric Cooperative

Commenter1:David Smith

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 9.3.7

Comment Excerpt Text:

I am here today to state that ODEC favors the development of federal regulations for CCRs under RCRA 

Subtitle D prime nonhazardous waste program. However, we feel strongly that regulating CCRs as a 

hazardous waste under RCRA's Subtitle C program would impose unnecessary regulations and costs on 

our current and proposed coal-fire facilities, would threaten jobs, increase electric rates and have a large 

effect on the beneficial use industry. EPA is obligated to pursue the least-cost approach in order to 

mitigate impacts on the firms that can least afford them. Since the proposed controls for CCRs are 

virtually identical under C and D, in approaches that would be expected to provide the same increased 

levels of protection, Subtitle D should be adopted. 

However, the regulations of CCRs as a hazardous waste under RCRA Subtitle C would introduce many 

unnecessary measures such as potentially requiring each generating facility to acquire and operate storage 
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facilities with TSD permits. The Clover Power Station currently utilizes a dry landfill system for storage 

and disposal of CCRs that is lined and monitored with groundwater monitoring wells and will be capped 

appropriately when completed in a fashion very similar to what's outlined in Option D. We feel that this is 

an effective means for ensuring that CCRs are disposed of in a manner safe to the environment and do not 

feel there would be any great useful gains through the implementation of Option C.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0064-1

Organization1:Boral Material Technologies

Commenter1:John Scoggan

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

We support the EPA's effort to protect human health and the environment. We don't want another disaster 

like the Kingston spill. We don't want the EPA to overreact due to the Kingston spill with the RCRA 

Subtitle C rule. The problem at Kingston was a disposal problem and not a problem with the material 

itself. We feel that the disposal can be handled properly with a Subtitle D nonhazardous regulation.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0064-4

Organization1:Boral Material Technologies

Commenter1:John Scoggan

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Boral asks EPA to do the right thing, regulate coal combustion residuals under RCRA Subtitle D and 

avoid any reference to hazardous waste. EPA's own scientific data says coal wastes are nonhazardous. 

Under EPA's own admission, RCRA Subtitle D with a nonhazardous label will provide equal protection 

to public health and environment.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0071-2

Organization1:The Concrete Industry Board of New York City

Commenter1:Bill Lyons

Commenter Type: Professional Association

Classification: Substantive

Comment Excerpt Text:

For a product that has been used in the construction of the Hoover Dam back in the late 1920s to early 

1930s, I encourage the EPA to listen to the concrete construction industry and deem fly ash a 

nonhazardous material. Let's go D.

Response: The Agency acknowledges and appreciates the comment. 
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Comment Number: TRANS-ARL-0074-3

Organization1:ARIPPA

Commenter1:Jeff A. McNelly

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

EPA appears to be only overly influenced by certain special interest anti-fossil fuel groups that have never 

directly managed ash. An ash accident may be a legitimate reason for EPA to propose regulatory 

improvements pertaining to wet ash disposal impoundments. However, it is unreasonable to propose rules 

that declare all ash hazardous and drastically limit its many current beneficial uses. While EPA cites the 

NRC-NAS study concerning ash in its preamble, it ignores its scientifically based factual findings which 

include, one, enforceable federal standards should be established to ensure that states have specific 

authority and implement adequate safeguards; two, primary regulatory mechanisms should be used to 

develop enforceable standards are SMCRA, joint OSM-EPA rules, or RCRA D rules. Beneficial use of 

ash should be strongly encouraged. Government agencies should examine ways in which they can 

promote ash use or remove impediments to its use. Number four, placement of ash in mines should be 

based on an integrated process of ash characterization, site characterization, management and 

engineering, design of placement activities and design and implementation of monitoring

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0086-1

Organization1:Separation Technologies

Commenter1:Tom Cerullo

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

It's our position as a company, as Separation Technologies, that Subtitle C would not benefit -- the 

beneficial-use industry would not benefit from the implementation of more processing equipment to take 

what would be landfilled ash into beneficial applications. 

When I meet with utilities and I describe to them our solutions for landfilling, their responses and their 

reactions now to me are: Thanks but no thanks; we need to wait and see how this EPA thing sorts itself 

out; if this thing goes Subtitle C, we're out of the beneficial-use business; we're worried about liability; 

we're worried about liabilities finding us from the use of this product in beneficial applications. 

Furthermore, they say we're unwilling to make the investment because if the liability doesn't get us, the 

destruction of the beneficial-use market will get us and so we will now have made an investment to 

beneficiate this ash and there'll no longer be a market to sell the product. 

So, I'm here to report to you as a business development person for a company that could benefit from 

regulations done the right way that we feel that Subtitle C is not the right way to go, and I'm here 

advocating for Subtitle D.

Response: The Agency acknowledges and appreciates the comment. 
134

Comment Number: TRANS-ARL-0092-2

Organization1:Separation Technologies and Essex Cement

Commenter1:Randy Dunlap

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

My point is, in this background on our company, is that as a processor and a marketer in one of EPA's 

positions that not only will a Subtitle C regulation not be a stigma to the use of coal combustion or 

residue recycling, but actually could enhance the utilization that our company, if, in fact, that was true, 

would be one of the biggest beneficiaries of that ruling, both from implementing and expanding our 

technology as well as providing the larger market for the CCRs. So, we come at it from a perspective that 

certainly if we believe that was a legitimate position, we would certainly come out in favor of Subtitle C. 

We are absolutely not in favor of Subtitle C. The stigma is real and we are a proponent of Subtitle D.

I'd like to make a few points, if I could, for your consideration, particularly as it relates to Subtitle C 

classification and the fact that it will not create a stigma for the beneficial use of CCRs. Those 

assumptions from the EPA, as I understand it, is a Subtitle C classification could actually increase the 

beneficial use because it will make the cost of landfilling more expensive, thereby creating an incentive 

for the utilities to either subsidize or further increase the use of CCRs. This assumption is incorrect, and I 

can assure you that this will not be the case for several primary reasons.

A concrete producer operates on very slim margins, as you heard earlier today. The average profit margin 

is less than $5 and current market is less than a dollar. The use of fly ash and concrete is already a strong 

financial incentive for the utilization of fly ash in concrete. 

Second point is any potential cost savings that a producer might see from the use of fly ash would quickly 

disappear with just one lawsuit resulting from the hazardous classification of CCRs regardless of how 

frivolous the lawsuit might be. 

And last point, even if the argument could be made that an additional financial incentive could increase 

the use, this assumes that there's some vast untapped potential for increased usages of concrete. This is 

simply not the case. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0095-1

Organization1:Virginia Manufacturers Association

Commenter1:Joe Croce

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The VMA supports continued regulation of CCBs under Subtitle D as a nonhazardous waste. By allowing 

continued recycling and beneficial use of CCBs in the manufacture of concrete, paints, gypsum, and some 

wood and plastic products, industry is able to assist a cost- competitive feedstock for a variety of 

products. These beneficial uses for CCBs extend to the manufacture of products throughout the economy, 

including our construction industry and housing sector. Construction products such as fiber, cement, roof 

shingles also contain CCBs. A reclassification for handling as hazardous waste would raise the costs of 

these products and undermine an economic recovery that is attempting to take hold and threatening jobs. 
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Stricter regulation of CCBs would also raise energy costs, adding more competitive burdens on the 

manufacturing sector.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0117-3

Organization1:Union for Jobs and the Environment

Commenter1:Bill Cunningham

Commenter Type: Union

Classification: Substantive

Comment Excerpt Text:

Flexibility and discretion by the states is needed due to the many differences in storage sites in each state. 

Maintaining flexibility for state regulators can best be served under Subtitle D. As EPA has noted, under 

Subtitle D, regulations would go into effect much more quickly than under Subtitle C. 

The statement I am giving today is for all U.J. Members, but some members including the mine workers 

and the IBW will be submitting their views as well. I would like to call your attention to the mine 

workers' letter which requests that EPA work with Congressman Boucher and the majority of members of 

the Energy and Commerce Committee that transmitted their views in a July 29 letter of their desire for 

revisions of Subtitle D regulation. 

In summary, U.J. members are confident that regulation under Subtitle D of RCRA would protect public 

health and safety and that regulation under hazardous waste provisions would damage the recycling 

program for CCRs while giving no real measure of public benefit. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0128-4

Organization1:International Brotherhood of Electrical Workers

Commenter1:Bruce Burton

Commenter Type: Union

Classification: Substantive

Comment Excerpt Text:

Even if it classifies fly ash as nonhazardous, EPA would still establish national criteria to ensure the safe 

disposal of CCRs and the IBEW is fully supportive of that part of the proposal. Facilities handling coal 

ash would be subject to location standards and composite liner requirements. Existing ash ponds without 

liners would have to retrofit within five years or close and ground water would be monitored for 

contaminants. Finally, post-closure care requirements would be issued to address the long-term stability 

of ash ponds.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0003-1

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive
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Other Sections: 4.2.4 10.4.3

Comment Excerpt Text:

Today, I would like to make four key points that address common misconceptions that have been 

frequently stated at these series of public hearings. 

Number one: Coal ash does not qualify as a hazardous waste based on its toxicity. This is not an option. It 

is a fact that standardized tests show that the levels of metals in coal ash are below the amounts 

established for listing it as a hazardous waste. In recycling settings, the toxicity of coal ash is similar to 

the toxicity of the materials it commonly replaces. 

Number two: EPA's proposed Subtitle D and Subtitle C regulatory approaches are both protective of 

human health and the environment. The landfill construction standards proposed are essentially the same 

in both, and so EPA's Subtitle C proposal is not "stronger." The key differences between the proposals 

boil down to who gets to enforce the new regulations that EPA establishes, new regulations that are far 

from "business as usual" in either option. 

Number three: Stigma is real. Labeling coal ash as hazardous waste when it is disposed creates enormous 

barriers to recycling. Producers, marketers and users of coal ash have been unanimous in expressing this 

fact during the public hearings. The only people claiming the stigma is not real are people with no direct 

involvement in the recycling effort. 

And number four: Stigma is already taking a toll on recycling just as a result of this debate. Specifiers and 

users of coal ash are already beginning to remove the material from projects because of regulatory 

uncertainty and fear of future liabilities. Manufacturers of products that compete with coal ash are 

actively using this forum to make false claims about dangers of using coal ash. And we have seen 

numerous witnesses at these very hearings express fear regarding long established beneficial uses of coal 

ash, proving the point that the drumbeat of the terms "toxic" and "hazardous" dramatically affects

consumer behavior. 

The people who work everyday to recycle coal ash are extremely disheartened by this debate. Many of 

them have devoted entire careers to do something good for the environment. They now feel betrayed by 

the Environmental Protection Agency and by environmental groups who appear resolved to ignore and 

sacrifice the benefits of recycling in their single-minded push for federal enforcement authority. 

New coal ash disposal regulations under Subtitle D will make meaningful improvements to disposal 

practices and do it faster than Subtitle C can. Subtitle D will protect human health and the environment, 

and will avoid the creation of an unnecessary and harmful hazardous waste stigma that will wreck efforts 

to safely and responsibly recycle millions of tons of material that otherwise will find its way to landfills. 

Subtitle D is the right choice for the environment.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0009-1

Organization1:Natural Resource Technology

Commenter1:Robert Karnauskas

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

I'm present at this hearing to urge EPA to regulate coal combustion residues including coal ash as nonhazardous waste under Subtitle D of RCRA. Members of our environmental firm have over 25 years 

experience with CCR related projects. And our experience in this field, as well as continuing education, 

provide a substantial knowledge base on the properties of CCRs and basic engineering principles that 

support their proper management and beneficial use. 

We support the Subtitle D approach because, first, Subtitle D has been demonstrated to be protective of 
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human health and the environment for managing various waste such as municipal refuse, petroleum 

contaminants in soils and -- Based on our experience, we believe Subtitle D is also appropriate and 

protective for CCRs. Our opinion is also supported by USEPA's earlier findings in 2000 based on 

scientific evaluations at that time that non-hazardous waste regulation of CCRs is fully protective of 

human health and the environment.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0017-2

Organization1:We Energies

Commenter1:Art Covi

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

We strongly favor the implementation of a Subtitle D non-hazardous approach to fill the need for 

consistent national regulation for CCPs.We are concerned that a Subtitle C hazardous approach will 

introduce a regulatory barrier and place a stigma on CCPs with our customers. In fact, the stigma of a 

hazardous waste label on CCPs would not encourage beneficial use. Unfortunately, this issue has already 

had a negative effect on some valuable beneficial uses. 

Subtitle C rulemaking provisions are over-reaching and a serious concern for We Energies, especially in 

light of our long-term commitment to develop a wide range of beneficial uses. The Subtitle D approach 

will establish national standards similar to those employed for municipal waste. The EPA has the 

authority to step in and manage noncompliant state programs and take action under the endangerment 

provisions of RCRA. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0020-1

Organization1:Charah, Inc.

Commenter1:Nathan Boone

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Charah supports EPA's effort to implement regulations on the disposal of CCRs under Subtitle D which 

would be consistent with two previous decisions made by EPA concluding that CCRs do not warrant 

classification as hazardous materials. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0022-1

Organization1:MidAmerican Energy Holdings Company on behalf of MidAmerican Energy Company

Commenter1:Cathy Woolums

Commenter Type: Electric Utility Company

Classification: Substantive
138

Comment Excerpt Text:

MidAmerican Energy supports the development of federal regulations for coal combustion residuals 

under RCRA Subtitle D non-hazardous waste rules. The development of rules under this approach will 

establish a federal floor for all CCR facilities to meet. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0038-1

Organization1:Headwaters Resources

Commenter1:Bill Gehrmann

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

In the EPA's May 4th, 2010 press release, the Administrator calls for "common sense national protections 

to ensure the safe disposal of coal ash." In that same press release, the Assistant Administrator states that 

"environmentally sound beneficial uses of ash conserve resources, reduce greenhouse gas emissions, 

lessen the need for waste disposal units, and provide significant domestic economic benefits." Our 

industry agrees with both the Administrator and Assistant Administrator. 

With that being said, let's look at a "common sense" approach to accomplishing these goals. 

Let's start with existing surface impoundments. The spill at the federally owned TVA's Kingston Plant 

was an example of an engineering failure of a surface impoundment. Both proposed regulations require a 

retrofit with a liner within five years of the effective date. New impoundments placed in service after the 

effective date require a liner under both proposals. 

Now let's look at dry landfills. Landfills built before the effective date are not required to have a liner 

under either proposal. Both proposals do require groundwater monitoring. Landfills built after the 

effective date have essentially the same engineering standards under both proposals. 

The effective date. Here is where we start to differentiate between the two proposals. Under Subtitle D, 

the effective date is six months after the final rule is promulgated for most provisions. However, for 

Subtitle C, the EPA states that timing will vary. Each state must adopt the rule individually which can 

take one to two years or even more. Common sense tells us that Subtitle D is the quicker path to 

implementation of essentially the same engineering standards. 

Recycling. We need to continue to take advantage of those benefits that the Assistant Administrator 

mentioned in the May press release. Effective recycling reduces the volumes of coal ash placed in 

landfills. The stigma from a Subtitle C designation will negatively impact the volume of coal combustion 

products currently being beneficially used. Common sense tells us that a hazardous waste designation 

increases the liability risks to everyone involved in the beneficial use supply chain. All it takes is the fear 

of these potential liabilities at any link in this chain to jeopardize the benefits derived from recycling. 

Why would the EPA take such a risk? 

The EPA and speakers at these hearings have stated that a Subtitle C ruling would actually increase 

recycling. Common sense would tell you that if that was the case, as the largest marketer of coal 

combustion products in the country, we would be in favor of Subtitle C. We are not. 

Use common sense. If federal jurisdiction is what you are after, find another solution. Don't jeopardize 

beneficial use and its engineering and environmental benefits by choosing a Subtitle C designation

Response: The Agency acknowledges and appreciates the comment. 
139

Comment Number: TRANS-CHI-0041-1

Organization1:Prairie State Generating Company

Commenter1:Mark Shepherd

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Let me say at the outset that Prairie State supports the development of federal regulations for coal 

combustion residuals under RCRA's Subtitle D non-hazardous waste program. Proposed regulations to 

manage coal combustion residuals as hazardous waste do not properly address the risks posed by these 

CCRs, by disposing of them, or the impact that proposed regulations will have on coal combustion 

residuals beneficial reuse. Environmental protections achievable under Subtitle C are no stronger than 

those under Subtitle D option and come at a much higher cost to the consumer and taxpayer. Let me go 

further to point out that the State of Illinois design standards for construction and operation of landfills for 

CCRs are more protective than either option posed under the proposed Subtitle D regulations and the 

Subtitle C regulations. The proposed regulations thus offer no increased benefit to justify the large impact 

of the cost. 

We believe the state has an important role to play in regulations of coal combustion residuals and should 

take the lead on regulating these materials. The belief that federal enforceability under Subtitle D 

regulations is inadequate is erroneous. As published, the proposed rules also have numerous defects and 

problems, even under the Subtitle D option. 

We urge the EPA to withdraw the current proposal and to work to propose regulations under Subtitle D 

that recognize that CCRs can be managed responsibly and safely.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0042-2

Organization1:Ecologic Tech.

Commenter1:Jerry Liu

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.1.1

Comment Excerpt Text:

All of our test data showing the safety of fly ash bricks would be useless in countering images of nuclear 

scenarios where you have something like the Tennessee Valley spill. 

Look, I'm not here to downplay the importance of diverting fly ash from landfills and impoundment 

ponds. No one wants another incident like what we had in Tennessee. But we must not forget that fly ash 

is generally safe to handle and store. Indeed, Ecologic Tech has been researching and working with fly 

ash since our inception in 2001 without incident. The move to completely redefine fly ash waste is 

especially disheartening because we firmly believe that remediation is an issue that can be handled by 

modifying existing rules and imposing stiffer penalties for accidents. 

So, if there is anything about what I have said that I would want you to remember, it's this, "Please don't 

throw the baby out with the bathwater." Over 40 millions of tons of fly ash go unused each year. Fly ash 

bricks and roofing tiles could be a significant and safe avenue of disposing this waste. But it won't happen 

if we have to start with a source that the public views on the same level as radioactive waste and 

biohazardous material. 

We strongly urge the continued classification of fly ash under Subtitle D.

Response: The Agency acknowledges and appreciates the comment. 
140

Comment Number: TRANS-CHI-0056-1

Organization1:Beneficial Reuse Management

Commenter1:Jeff Ulrey

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2 10.5.4

Comment Excerpt Text:

Under both proposed alternatives, impoundment ponds will go away, something which can be 

accomplished and begin almost immediately under Subtitle D of RCRA. There is no reason to make a 

hazardous waste determination to accomplish this same goal. We can get it done in approximately three 

years rather than the ten years it would take at the minimum with hazardous waste permitting delays. 

Enforcement seems to be a stumbling block that makes some folks call for a hazardous determination. 

With legislation, we should grant the power at the state or federal level to enforcement capabilities 

without a hazardous designation. 

Shutting down beneficial reuse of coal ash by adopting hazardous disposal regulations is not the way to 

jumpstart the renewable energy policy in this country and phase out coal power generation. Let's take the 

good old American ingenuity and be smarter, more creative, and more efficient than the rest of the world. 

Don't weaken this country. A hazardous waste determination will only hurt the rate payer and drive up the 

cost of goods and services if he has to use virgin materials. 

By definition, CCPs are not hazardous by the criteria that the EPA has used for decades: corrosivity, 

ignitability, reactivity and toxicity. The definition of those four categories can be found under 40 CFR 

261 Subpart C. CCPs do not qualify as a hazardous material by all the same standard scientific practices 

used for years to determine whether a material is hazardous or not. So, we have to move on from this talk. 

But whatever happens, don't let FGD gypsum use in agriculture be swept away over the fears about coal 

ash. Gypsum applications used to improve soil structure and soil porosity could quite possibly be the 

single greatest contribution for improving water quality in this country. It would be a great legacy for 

your children's children that your generation had the most impact on improving the quality of their water 

resources. 

And as I end, imagine the positive impact to our water quality and the condition of our water resources if 

gypsum can be allowed to be used and further research can be expanded. That can't happen if included in 

a hazardous determination. Don't let it happen!

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0059-1

Organization1:Illinois Environmental Regulatory Group

Commenter1:James Harrington

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

IERG supports appropriate regulation of coal combustion residuals from coal fired generation to protect 

public health and safety, and believes that it is best regulated as a non-hazardous waste under Subtitle D 

of the Resource Conservation and Recovery Act rather than as a hazardous waste under Subtitle C. 

Regulation under Subtitle D will allow and encourage continued beneficial use of such materials where 

appropriate as well as protection of public health and safety without undue cost or burden on industry, the 

states or the public. IERG is concerned that creating sub-classification of "special" hazardous waste as is 

proposed under Subtitle C will not alleviate the stigma that will be placed on coal combustion byproducts 
141

will greatly reduce the environmentally sound beneficial use of such materials. 

Under Subtitle D, regulations can more easily be tailored to the individual circumstances of each state, 

taking into account the geography and geology and overall regulatory structure. It can provide for 

appropriate construction and location standards, monitoring and closure. As an example, ash ponds 

located in the relatively flat lands of Illinois may require a very different design than ponds located in the 

hills and mountains of other states. Similarly, depending on geology, existing facilities may be allowed to 

continue operation in some states with appropriate monitoring where that would be inappropriate in other 

locations. Requiring the closure of such facilities before the end of their useful life would be wasteful and 

not provide commensurate benefit to public safety or the environment. In such instances, IERG believes 

that the Subtitle D option described in the USEPA proposal would be appropriate.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0067-2

Organization1:American Coal Ash Association

Commenter1:Thomas Adams

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The American Coal Ash Association supports Subtitle D enforceable standards on a federal level and 

opposes any form of Subtitle C regulation. If we're going to continue the recycling success story of the 

recent past, the EPA must make a serious effort to understand the engineering practices that support the 

decades of safe and sustainable use of coal combustion products in the geotechnical markets. The science 

and track record is available if the EPA is truly committed to real science, not political science

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0082-1

Organization1:Paul Koziar Consulting, LLC

Commenter1:Paul Koziar

Commenter Type: Other Company

Classification: Substantive

Other Sections: 10.2.3.1 10.4.2

Comment Excerpt Text:

EPA's Draft Rule seems to prefer regulating the material under RCRA Subtitle C which relies on strict 

and administratively burdensome approach that is not required by the level of risk posed by coal ash when 

beneficially used. I believe this will discourage beneficial use and believe proper regulations under RCRA 

Subtitle D will be adequate. 

Why do I say this? It has been my experience as a regulator responsible for implementing NR 538 that an 

effective program can be developed to protect public health if it is based on a simple and common sense 

and balanced approach. 

When NR 538 was originally designed and adopted in 1998, it was done with the cooperation of all 

stakeholders. The resulting program included material assessment, locational criteria to protect sensitive 

environments, public health, and engineering criteria to ensure proper design and construction, and post 

beneficial use monitoring activities. It also provided flexibility to try new and innovative approaches 

while saving money and conserving natural resources without risk to the public health and the 

environment. 
142

I believe NR 538 provides a successful model that EPA should follow with regard to beneficial use. One 

particular example of the cooperative approach is the success story with our Wisconsin Department of 

Transportation. They have embraced the use of coal wherever possible for structural fills, for roadways, 

bridges and embankments. These projects have been implemented according to the most strictest designs 

of engineering and environmental protection. However, in order to get contractors building these projects 

and comfortable with the use of these materials, the Wisconsin legislature had passed a law in 2002 to 

limit the liability of the use of this ash under NR 538. This success in economically building public 

infrastructure in Wisconsin could not have occurred without these byproducts being designated as a 

hazardous waste. 

The current EPA proposal to prohibit structural fills such as these transportation and infrastructure 

improvements will be a severe setback for projects that are critically needed. EPA should develop specific 

standards and criteria under Subtitle D that will enable these projects to continue to generate savings and 

benefits for the public.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0085-1

Organization1:Florida Concrete and Products Association

Commenter1:Mike Murtha

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Our companies have looked at the numbers. We've looked at the data. We wouldn't think not to look at 

the data because our companies use fly ash for our products. We're concerned about the health, safety and 

welfare of our workers and employees and our communities. And we do a good job with it. We've been 

good corporate partners in our communities.

And so, we're at a point here now where we believe that Subtitle D would be an outstanding regulatory 

mechanism for the EPA to implement. I'm here when I should be down in Florida trying to get our 

businesses back online and firing again. We have a 45 percent unemployment rate in our industry down in 

Florida. Every single day I'm laying off people and we're laying off people and it's hard. 

If you want to help us just get to that recovery or at least no impede us, choose Subtitle D so that we can 

all work together and have a solution that is healthy for our communities and healthy for our industry and 

healthy for our economy.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0094-5

Organization1:Wisconsin Department of Natural Resources

Commenter1:Ann Coakley

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

In conclusion, of the options presented, Wisconsin DNR only supports regulation of CCR materials under 

the EPA Subtitle D option but with state authority and rules. 
143

Comment Number: TRANS-CHI-0101-3

Organization1:Dynegy Midwest Generation

Commenter1:Jeff Ferry

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2 4.1.3

Comment Excerpt Text:

On the other hand, a Subtitle D or D Prime approach would create an environmentally protective program 

for coal ash disposal without destroying these beneficial reuse options or imposing unnecessary 

compliance cost upon power plant operators that will eventually appear as higher price for concrete, 

electricity, or other products. DMG opposes the Subtitle C option and agrees with others to support the 

Subtitle D or D Prime options that will provide environmental options without additional waste, increased 

cost, and the stigmas associated with hazardous ash.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0107-3

Organization1:Concrete Reinforcing Steel Institute

Commenter1:David McDonald

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Under Subtitle D, recycling coal ash in concrete will be encouraged as a safe, environmentally preferrable 

alternative to disposal. Thus, the Concrete Reinforcing Steel Institute strongly supports the 

implementation of Subtitle D.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0109-1

Organization1:Boral Material Technologies

Commenter1:Terry Peterson

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Just a couple of comments on what's happening and what I've been hearing the last couple of hearings I've 

attended is one of the things that's been very successful and led to 30 years of recycling of these products 

is EPA's support and continuing support of Subtitle D classification. We think that this is a very important 

continuation of this classification, not only because of the stigma you've heard in many cases about 

marketing, but more importantly, we need more investment money in this industry to try to do more with 

these products. We're firm believers that we'd rather recycle than landfill. That takes care of two 

problems. But we also recognize that there's landfill practices out there that are not up to standard and 

agree that something needs to be done. 

So, in conclusion, we would encourage the EPA to maintain a Subtitle D classification for CCRs while 

also working with state regulators to improve landfill management procedures. This logical approach will 

provide the solution for both sides of this debate
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Comment Number: TRANS-CHI-0123-2

Organization1:

Commenter1:John Miller

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

There is basically no difference between Subtitle C and Subtitle D in terms of protecting the environment. 

With Subtitle D, there is no doubt that this recycling will continue to grow. There will be less materials 

and landfill around the country. There will be millions of tons less of CO2 and we will have improved the 

disposal methods for CCPs in wet impoundments. 

I agree, wet impoundments need to be regulated. I agree, more stringent regulations, putting liners, 

groundwater testing and monitoring needs to be done as outlined in your Subtitle D proposal. The part I 

have a concern is whether EPA would support the continued beneficial use of the fly ash through a 

proposal of regulation that would impact and possibly destroy it. 

If we go forward with a Subtitle C regulation, we will impact the environment by destroying one of the 

most successful recycling programs. We will place, as I stated earlier, millions of tons of CO2 in the 

environment every year. Subtitle C will greatly increase the amount of tons in landfill every year. 

The carbon footprint to dispose of CCPs is massive. Thousands of machines will be operating daily to be 

able to do this. I ask the EPA to do the right thing and to protect the environment and to choose the 

Subtitle D proposal for the regulation of coal ash.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0137-2

Organization1:USC Technologies

Commenter1:Richie Benninghoven

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

let's not call coal ash hazardous when it doesn't meet any of the characteristics of hazardous waste. EPA 

has outlined identical engineered protections under both Subtitle D and Subtitle C. Subtitle D will protect 

all of us and not risk the safe recycling of coal ash due to stigma. We should all be focusing on making 

these materials recyclable rather than talking about disposing of them.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0148-3

Organization1:Lafarge North America

Commenter1:Mitch Nowicki

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

I implore the USEPA to objectively assess the risks based on the facts, to recognize the adequacy of 
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Subtitle D standards, and to avoid destroying 64 years of technically and environmentally successful CCB 

utilization. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0197-1

Organization1:Harsco Minerals

Commenter1:Dion Mulcahy

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

I support Subtitle D. We take employee health and safety very seriously. We participate in industrial 

hygiene surveys. We conduct regular safety meetings. And I'm not aware of any health issues from any of 

my employees that work for us. As I said earlier, some of them have been there over 30 years. I have five 

that have been there for 35 years plus. So, environmental permit compliance is also an important part of 

the way we conduct our business. In our many years of operation, I do not know of any environmental 

issues caused by the boiler slag process at the facility I work at. Some facts demonstrate that there is no 

reasonable basis for subjecting boiler slag under Subtitle C. When extremely hot molten coal ash is 

quenched with coal water, the coal ash is vitrified and becomes a glassy solid known as boiler slag. 

When boiler slag is vitrified, it's very durable, environmentally stable material that effectively 

immobilizes its chemical constituents by transforming any metals into inert metal silicates. Historically, 

boiler slag has always passed the TCLP testing and has never exhibited any hazardous waste 

characteristics. I recognize the need for proper and environmentally sound standards for regulating the 

two percent of boiler slag that is discarded rather than beneficially reused. However, I feel that the 

associated stigma that will be associated with Subtitle C will adversely impact my business.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0011-4

Organization1:Tampa Electric Company

Commenter1:Randy Melton

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

On the other hand, Subtitle D, or equivalent regulations administered by the states, will adequately 

protect human health and the environment without causing these adverse consequences, as has been 

demonstrated by the program already in place in the state of Florida. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0012-2

Organization1:

Commenter1:Stephan Bray

Commenter Type: Private Citizen
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Classification: Substantive

Comment Excerpt Text:

My experience includes designing, permitting, constructing, and monitoring Subtitle D and industrial 

waste landfills. 

Given the proposed options, it is my opinion that the nonhazardous Subtitle D option is most appropriate. 

Based on my experience, I offer the following comments regarding select engineering components of the 

proposed rules: 

First, hazardous waste is defined as waste that exceeds EPA-established toxicity contaminant 

concentrations. The contaminants typically of concern in CCRs include metals such as arsenic, mercury, 

barium, cadmium, selenium, chromium, lead, and others. While the contaminants present in CCRs are 

certainly a health concern, the data suggests that the contaminant concentrations found in CCRs are 

typically well under EPA's hazardous thresholds.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0021-1

Organization1:Charah

Commenter1:Charles Price

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

Beneficial use of CCRs save landfill space and avoid use of manufactured products which require virgin 

materials and energy to manufacture. A successful CCR recycling program is good for the environment 

and should be supported by EPA through its regulations. Regulations of CCR disposal can be done 

without causing harm to the recycling program that are prevalent throughout our U.S. economy. The 

stigma associated with regulating CCBs under hazardous waste Subtitle C is real. 

I have an ad from the manufacturer of lightweight material that competes with bottom ash. The ad reads: 

"WARNING SIGNS OF UNHEALTHY RAW MATERIAL ARE HERE AND IT'S CALLED COAL 

BOTTOM ASH." The ad goes on to say the liability issues are too great to allow this waste material to be 

used in building materials. EPA's assumption that Subtitle C regulations will result in an increase of 

beneficial use are not correct. 

Customers that use CCBs are concerned over the labeling of CCBs as a hazardous material. Our 

experience and this example prove this recycling will decrease, if not end all together, if EPA regulates 

CCRs under Subtitle C. Simply stating that CCRs are exempt if beneficially used is not sufficient to put 

the legal liability fears to rest. 

The protective features proposed by the EPA for CCRs landfills under Subtitle C and Subtitle D are 

essentially the same; therefore, a Subtitle D regulation program by EPA's own description will provide 

the necessary protection and would avoid further damage to the CCP recycling industry. 

Subtitle D approach is clearly the appropriate record for a mechanism that will protect the environment 

and avoid damage to the recycling industry. Regulations under the Subtitle C approach will not provide 

added environmental benefits as described by EPA in its economical analysis. EPA assumes the growth in 

the beneficial use of CCRs will not occur. The stigma impact will harm our industry and result in the loss 

of jobs

Response: The Agency acknowledges and appreciates the comment. 
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Comment Number: TRANS-CLT-0031-2

Organization1:Sphere One, Inc.

Commenter1:Ryan Brownhill

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.2.4

Comment Excerpt Text:

We in the recycling CCP industry support strong relation (sic) of CCRs under Subtitle D with Federal 

enforcement authority. The EPA can't be afraid to lead. With our economy sputtering, you would think 

the EPA could work with Congress, get direct enforcement authority, and proceed to regulate CCRs under 

Subtitle D without creating this damaging stigma for CCPs. 

If there is even some question about how Subtitle C classification will be detrimental to business, why do 

it, especially when there is a technically sufficient solution that carries virtually no risk to the beneficial 

use of CCPs? A Subtitle D classification allows the EPA to live up to its responsibilities to protect the 

environment as well as its responsibility to all the hard working Americans whose livelihood depends on 

the reuse of CCPs. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0032-2

Organization1:Titan America (Separation Technologies and Essex Cement)

Commenter1:Randy Dunlap

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

In conclusion, I hope that the EPA would give appropriate weighting to the testimony and written 

comments from those in the industry that are opposing Subtitle C and who have no other motivation to do 

so, other than the fact that based on their years of experience, they understand the significant negative 

impact that such a classification will have on future beneficial uses of the CCRs. The only option is 

Subtitle D.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0050-1

Organization1:

Commenter1:Mark Bryant

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

To me this RCRA Subtitle D program seems to be the perfect model to achieve the change that is sought 

today. The similarities are too close to ignore. Subtitle C is a political solution, not a technical solution. 

Back then there were landfills that did not meet a technical standard for structural stability or for 

engineering control. A national standard was required. Today, we have witnessed the structural failure of 

an impoundment that has galvanized a call for action and national standard for managing CCRs. The 

model is in place: A solid waste program that phases in reasonably, that evaluates the performance of 

existing facilities, closing those that fail the test, and allowing adequate time to permit and construct new, 

modern facilities where needed. 
148

This policy and regulatory scheme provided for a manageable, cost-effective transition that brought the 

management of household trash and solid waste to a modern science-based standard. The technical 

standards for Subtitle C and a Subtitle D landfill are essentially the same. So why are we threatening all 

the fine work to promote beneficial use and recycling, most of which was supported by EPA? 

Today, our municipal solid waste program, under a national consistent level of requirements implemented 

by the states, is a success. I believe that the President promised that all policies enacted during his 

administration would be based on science. To politicize a well-tested RCRA is poor public policy, will 

waste decades of good hard work and cause a $10 billion beneficial use and recycling industry to suffer, if 

not die. 

These uses are well-conceived, well-designed and well-constructed and are based on good science, sound 

economics and a market need. A Subtitle C approach is unnecessary. Subtitle D is sufficient.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0057-2

Organization1:Geosynthetic Materials Association

Commenter1:Edward Silva

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

A brief word on the hazardous or nonhazardous question. While coal ash does contain heavy metals, it 

lacks traditional characteristics of hazardous materials; radioactivity or the presence of infectious medical 

waste. In the opinion of our trade organization, coal ash can be properly stored using Subtitle D 

regulations, a nonhazardous solid waste designation with composite liner systems

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0067-1

Organization1:Harsco Minerals

Commenter1:Steven Stanislawczyk

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

I am in support of regulating boiler slag under Subpart D. 

Boiler slag is one of the four coal combustion by-products listed in this proposed Rule. Boiler slag only 

makes up 2 percent of the total CCB volume. The vast majority of boiler slag is recycled into valuable 

product. I'm only the second person to talk about boiler slag. Boiler slag is only produced from special 

types of combustion boilers where the molten material is quenched with water creating a vitrified 

amorphous nonporous solid mass where any metals are made into inert silicates. You can see it's different 

than coal ash. It's a solid mass. 

Historically, boiler slag has always passed the TCLP testing and has never exhibited any hazardous waste 

characteristics. Harsco also ran the material through the ultimate leachate testing method that was 

referenced in the proposed Rule that was conducted at Vanderbilt University; boiler slag passed all 

leaching scenarios even at very high and low digestion pHs. 

Harsco is not aware of any referenced damage cases in the proposed Rule that was the result of 

mismanagement of boiler slag. Boiler slag is not commonly stored in surface impoundments. Harsco does 

not store any of our products, raw or processed, in any surface impoundments. Regulating boiler slag 
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destined for disposal as a special waste under Subtitle C would unfairly stigmatize beneficially used 

products such as boiler slag. 

In summary, placing an unneeded stigma on an inert product beneficially used since the 1930s will add 

millions of tons of extra nonhazardous waste into already crowded hazardous waste landfills and 

significantly increase the demand for mined virgin minerals, which has far greater carbon footprint, to 

replace recycled boiler slag

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0072-1

Organization1:Progress Energy

Commenter1:Cam Wheeler

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Progress Energy supports the development of Federal regulation of coal combustion products under 

RCRA Subtitle D non-hazardous waste. The development of rules under this approach will establish a 

federal standard enforceable for all CCR facilities. Green states, including at the states' Department of 

Energy already operates already have effective solid waste statutes and regulatory programs, and will 

provide an additional layer of regulatory oversight for management, reuse, and disposal of CCRs. Any 

new federal rules should incorporate measures to allow existing state regulations comparable to federal 

requirements to play an active part in the CCR regulatory program at the state level.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0088-3

Organization1:American Coal Council

Commenter1:Janet Gellici

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Coal ash disposal regulations should be enacted under Subtitle D and EPA should work to promote 

beneficial coal use recycling as a benefit for our environment and the economy. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0091-3

Organization1:Carolina's Ready Mixed Concrete Association

Commenter1:William Arent

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The EPA's alternate proposal, Subtitle D option, is just as protective of the environment as Subtitle C 

option but without the pejorative stigma denoted by the hazardous label. Subtitle D option is not less 

stringent. The Subtitle D Option can be implemented much more quickly. If the EPA wants the federal 
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enforcement of fly ash disposal regulations, EPA should petition Congress to give them that authority as a

special waste under Subtitle D, not as a special waste under Subtitle C.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0099-2

Organization1:Advanced Wall Technologies (AWT), LLC

Commenter1:Carl Dudding

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3 3.1.2

Comment Excerpt Text:

I'm opposed to the management of CCRs as a Subtitle C material and strongly support management under 

Subtitle D. To the best of my knowledge, CCRs are the largest, single recycling/reuse success story in the 

United States. They are a useful construction material with uniform physical characteristics, and a Subtitle 

C designation will significantly jeopardize this ongoing success story. 

In my opinion, the stigma that will be created will prevent continued high usage rates of CCRs and is 

currently preventing development of innovative usage of these materials. At a minimum, the management 

of these materials under Subtitle D, instead of Subtitle C, will allow continued current and future 

beneficial reuse development. 

From a technical perspective, the EPA's own proposed regulations have the same liner systems for both C 

and D and effectively change the way wet storage is conducted, which I am fine with. The Subtitle C 

designation will add on a significant amount of time for permitting, however, as facilities try to change 

from existing systems to new requirements. This will occur at the time these facilities need additional 

capacity required by these regulations as they struggle to keep up with demand. 

I am strongly in favor of utilization of geomembrane liner systems in large structural fills applications, 

but with properly designed engineering controls that offer maximum protection of the environment. I also 

believe that CCRs used in this manner can be considered beneficial reuse.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0106-1

Organization1:

Commenter1:Craig Wallace

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.1.1 10.4.3

Comment Excerpt Text:

I'm a coal ash marketer. Based on my tacit and explicit expertise of concrete coal ash marketing, I can 

unequivocally testify that linking coal ash with other hazardous by-products is a monumental mistake if 

you're trying to promote coal ash for beneficial use. It is a bad idea that is going to have unintended 

consequences, not only in this country but other countries around the world that follow our government's 

lead. Without EPA's unabashed support for beneficial uses, demand and marketability of coal ash will 

decrease. EPA support is already waning: The termination of EPA's C2P2 website is a verifiable example. 

A hazardous waste labeled coal ash is totally unwarranted. Both Subtitle C and Subtitle D proposals 

accomplish the end goals for citizens impacted by coal ash disposal. Let me point out, Kingston is a 

federal owned and operated facility that had years of unstable sludge deposits that triggered the spill that 

is serving as the catalyst for federal oversight proponents today. 

Recycling coal ash benefits our environment and contributes to the conservation of our resources and 
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reduction of CO2 gases. Putting coal ash disposal in the same group with other Subtitle C wastes thinking 

it will have no effect, or a positive effect on beneficial use, is pure nonsense. We are going to have to 

dispose of more coal ash if we go Subtitle C. 

Today we are asked to provide verifiable evidence that the hazardous stigma has detrimentally affected 

beneficial use. I'd like to know how we are supposed to do that and prove that impact to something that 

has not yet happened. This is a very convenient position for Subtitle C proponents and very disheartening 

for those of us who know the coal ash markets. 

I do not believe there is a person in this room who thinks what happened in Roane County is acceptable. 

Beneficial use marketers understand there are gaps in current disposal rules. These gaps will be fixed with 

Subtitle D. So let's fix the problem without stigmatizing coal ash as hazardous waste. 

But the EPA continued to support coal ash beneficial use without creating an oxymoron scenario that is 

going to reduce demand for coal ash. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0110-2

Organization1:Boral Industries

Commenter1:Terry Peterson

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Maintaining a Subtitle D classification is necessary to build upon the recycling momentum created over 

the past 30 years. Eliminating land filling through recycling is the appropriate course of action that will 

provide the most benefit to all U.S. citizens. 

I encourage EPA to maintain a Subtitle D classification for CCRs while also working with State 

regulators to improve landfill management procedures. This logical approach will provide the solution for 

both sides of this debate.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0116-3

Organization1:North Carolina Chamber of Commerce

Commenter1:John Goodman

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

I want to say a few words today that's going to hopefully express our support for regulating coal ash in a 

way that protects our communities while also protecting North Carolina jobs and maintaining an 

affordable electric rate. For us that means Subtitle D, not hazardous regulation.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0119-4

Organization1:SCANA Corporation

Commenter1:Tom Effinger

Commenter Type: Electric Utility Company
152

Classification: Substantive

Comment Excerpt Text:

So what is the appropriate course of action for EPA to take in this matter? EPA has repeatedly determined 

that CCRs do not warrant regulation under Subtitle C. It makes no sense to declare it now to be hazardous 

in reaction to a civil structural failure. 

As recently as last week the Tennessee Department of Health, under a cooperative agreement with the 

agency for Toxic Substances and Disease Registry, released a final report finding only minimal risk from 

the coal ash spill at TVA's Kingston facility. The CCRs produced by SCE&G and other utilities do not 

meet EPA's hazardous waste levels and therefore, SCE&G believes they should be more appropriately 

regulated as non-hazardous waste under the proposed Subtitle D option, including modification that 

integrates with current state regulatory programs, such as South Carolina Department of Health and 

Environmental Control's solid waste regulations. This approach will create a reasonable and effective 

regulatory program that protects the environment, retains options for beneficial use and preserves jobs 

while not adversely impacting our economy.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0127-2

Organization1:Duke Energy

Commenter1:Chris Hallman

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Since the initiation of this rulemaking effort, an overwhelming number of entities have gone on record 

supporting a non-hazardous waste designation. These include more than two dozen state environmental 

protection agencies, various Federal agencies including the Department of Energy, a bipartisan group of 

165 members of Congress, and 45 US senators. 

The characteristics of CCRs have not changed, and there is no real science to support a hazardous 

designation. Ruling as such will raise electric costs to consumers and jeopardize CCR re-use without 

delivering additional environmental benefit. The Subtitle D option provides the only reasonable and 

lawful regulatory approach for these materials under RCRA

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0133-1

Organization1:UNC Charlotte

Commenter1:John Daniels

Commenter Type: Academia

Classification: Substantive

Comment Excerpt Text:

And I guess a couple of my thoughts that I want to put forth is, first, coal fly ash is really very much 

similar to regular soil; dirt that is right outside this building here. If you were to look at the mineralogical 

composition, look at x-ray of the fraction, look at x-ray of fluorescence, look at whatever technique you 

want and look at the technical composition, by and large they're essentially the same in terms of silica, 

alumina, iron oxides, lime and so on. Sure enough, there are trace metals with fly ash and, in fact, you can 
153

have trace metals with dirt as well. Ash can also absorb contaminants and so can soil. So these things can 

work in different ways. But let's just accept the fact that ash can leach contaminants. Let's manage this 

and manage it in a Subtitle D program. This works very well in municipal solid waste. And I would invite 

folks to look at typical leachate characteristics for municipal solid waste. And, you know, a lot of the 

emotion and a lot of the arguments for how many times higher than a groundwater standard you'll find in 

coal ash leachate, you can find a similar thing if you look at municipal solid waste leachate. And, yet, we 

are able to successfully manage municipal solid waste through Subtitle D. So if it works for MSW, it will 

certainly work for coal ash.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0001-1

Organization1:Texas Coal Combustion Products Coalition

Commenter1:Mike Nasi

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

I represent the Texas Coal Combustion Products Coalition, which is comprised of owners and operators 

of coal-fired power plants across Texas that have a long history of responsibly managing CCRs. 

Although we are confident that the existing industry practice and environmental regulatory framework 

is adequate without the need for federal intervention, we would support the EPA's efforts to establish 

national criterion on two conditions. 

First, that the criteria be developed with Subtitle D, not Subtitle C; and second, that that Subtitle D 

criteria be implemented by states, and states be afforded the leading role. We would suggest the states 

be afforded the role that they played in municipal solid waste regulatory limitations, which has been 

successful. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0004-2

Organization1:Texas Commission on Environmental Quality

Commenter1:Earl Lott

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

In summary, TCEQ requests the EPA carefully consider the impact of coal combustion residual 

regulations on beneficial use, and the TCEQ would like to reiterate the EPA should determine -- if the 

EPA should determine that federal regulations are necessary, we prefer the Subtitle D option rather than 

the Subtitle C.

Comment Number: TRANS-DAL-0008-1

Organization1:Utility Solid Waste Activities Group

Commenter1:Jim Roewer

Commenter Type: Trade Association

Classification: Substantive
154

Comment Excerpt Text:

The first myth I want to dispel is that industry wants to preserve the status quo. This is not correct. In fact, 

we support the development of federally enforceable regulations under RCRA's Subtitle D non-hazardous 

waste program. 

The second myth is that EPA's Subtitle D option is only guidance. This is not correct. Under the Subtitle 

D option, EPA would issue federal regulations specifically designed for CCR disposal units. These 

regulations would be directly enforceable by the states and the public, and violators would be subject to 

significant civil penalties. These are real regulations with teeth, and it is misleading to suggest otherwise

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0009-1

Organization1:Harsco Corporation

Commenter1:Tom Shaw

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.5.1.6

Comment Excerpt Text:

Since the 1930s we have been a green recycler of boiler slag. Boiler slag is formed when extremely hot 

molten coal ash is quenched with cold water, and the coal ash immediately becomes a vitrified, 

amorphous solid, glassy matrix known as boiler slag. 

Vitrification renders the material inert. In a chemical process using heat, it transforms the mixture into a 

soluble liquid which solidifies when cooling. Because slag is vitrified, it is very durable and an 

environmentally stable material that permanently immobilizes its chemical constituents in a glassy 

amorphous which remains stable, even when broken in small fragments during abrasive blasting, as 

evidenced by x-ray diffraction and TCLP data. 

Because it is beneficially reused, boiler slag is not commonly stored in surface impoundments. We 

regularly test our boiler slag and it has always passed TCLP testing and has never exhibited any 

hazardous waste characteristics. Our testing of pre- and post-blast boiler slag, an EPA standard TCLP test, 

has confirmed that the resulting leachate meets drinking water standards. 

The scientific information about boiler slag and its physical properties have not changed since we began 

our operations more than 70 years ago. Regulating boiler slag destined for disposal as a special waste 

under Subtitle C would unfairly stigmatize beneficially reused boiler slag, as is already evident by 

competitor actions. We have seen no evidence that boiler slag meets any threshold or regulation under 

Subtitle C, and we are not aware of any environmental problems linked to our products. 

As an abrasive, we are the primary alternative to silica sand, an abrasive that presents serious worker 

health concerns. We recognize the need for proper environmentally sound standards regulating the small 

percentage of boiler slag that is discarded rather than beneficially reused. 

Accordingly, consistent with the amounts used of nearly 30 states and EPA's two previous determinations 

evaluating proper management of coal combustion by-products, we support appropriate and reasonable 

disposal standards for any waste boiler slag under Subtitle D of RCRA

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0018-2

Organization1:Geosynthetic Materials Association

Commenter1:Matt Skinner

Commenter Type: Trade Association
155

Classification: Substantive

Comment Excerpt Text:

A brief word on the hazardous versus non-hazardous question. While coal ash does contain heavy metals, 

it lacks the traditional characteristics of hazardous materials, radioactivity, or the presence of infectious 

medical waste, et cetera. In the opinion of our trade organization, coal ash can be properly stored using 

Subtitle D regulations, a non-hazardous solid waste designation with composite liner systems

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0021-1

Organization1:Acme Brick Company

Commenter1:Ed Watson

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.5.1.6

Comment Excerpt Text:

Acme has successfully incorporated bottom ash and fly ash as a substitute for other raw materials in the 

body of our finished product for over 25 years. In the case of clay brick manufacturing, we've utilized 

bottom ash produced at four different coal-fired generation plants, as a substitute for raw clay at six of our 

24 brick plants. Bottom ash is an excellent body additive that helps to stabilize the shrinkage of the brick 

body and assist in the -- in the drying and firing stages of the brick manufacturing process. And it helps to 

lower the consumption of fuel used to fire the brick. 

One of our largest plants, which employs close to 100 employees, has successfully -- was unsuccessful in 

making a durable fired brick until we incorporated bottom ash in 1986. If bottom ash were not available, 

we'd be required to mine additional raw clay and fire it in a rotary kiln to produce a calcined material for 

use. Over the course of the past 24 years, a single Acme plant has produced over 2 billion face brick; 

thereby -- and has consumed approximately 640,000 cubic yards of bottom ash; thereby conserving that 

same volume of virgin raw materials and millions of cubic feet of natural gas. Our utilization of this raw 

material also means that the power company is not required to dispose of the same volume in a landfill. 

In addition to the preceding example, Acme consumes significant volumes of bottom ash and fly ash at 

our seven concrete block plants. Bottom ash can be used as a replacement for other virgin raw materials, 

such as sand, gravel, or exposed -- or expanded lightweight aggregate. And fly ash can be substituted for 

a high percentage of portland cement used in manufacturing of CMUs. During the -- the process, CCRs 

are incapsulated in the body of the product. We're not aware of any issues with brick or block containing 

CCRs having any hazardous characteristics. This means that there are no known hazards associated with 

the use of products which have been manufactured using CCR. 

We're supportive of the adoption of Subtitle D for this regulation. If industry were able to utilize CCRs 

and overcome potential marketimpacts associated with using waste designated under Subtitle C, would 

likely require consumers to implement stringent controls, governing disposal, transportation, and so forth 

of this material. The actual planning and direct implementation of solid waste programs under Subtitle D 

remains a state and local function. This approach allows states to devise programs to deal with sitespecific conditions and needs. Acme believes this arrangement is preferred over stronger federally 

controlled programs that cannot effectively deal with the matters specific to state and local conditions

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0032-1

Organization1:Boral Material Technologies
156

Commenter1:Gary Shelton

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3 10.5.1.6

Comment Excerpt Text:

Our company's principle business is coal combustion products marketing and management. We have been 

involved with these activities for over 50 years. And certainly, we are supportive of the effort to protect 

the environment and human health. There's no doubt about that. We believe that this goal can be 

accomplished by regulating coal combustion products under a Subtitle D classification and that a Subtitle 

C classification will be harmful to the continued and ongoing use of these products. 

The event at Kingston and any other events are disposal and material management issues. They were not 

caused by the material itself and certainly not a hazardous material problem. 

Currently, one of the largest and most successful uses of coal combustion products is the use of fly ash in 

the production of concrete, which you've heard here today. This type of use has a proven 50-year record 

of successful use that is safe and productive. Increased use of all of these types of recovered resources in 

safe and appropriate markets is also occurring in other segments such as the uses as a mineral filler. 

These developments are accomplished in a judicious manner after extensive evaluations of material 

performance, safety and environmental impacts, and the economics of the intended use. Any type of 

hazardous classification will negatively impact usage. 

The -- the reality is the stigma issue is real. I have firsthand experience with concrete producers, the 

engineering community, and various agencies who report that a hazardous classification will at a very 

minimum cause these users -- these CCP users to reevaluate their practices. A Subtitle C regulation will 

only harm the beneficial use of CCPs. The overall effect will be -- will result in increase of virgin mine 

raw materials. CCPs have a proven -- have proven to be a valuable recovered resource that has been long 

recognized by the EPA for its benefits to the environment and society for many years. 

Coal combustion products should be handled, managed, and stored according to sound engineering 

procedures. This should be accomplished at the plant sites where these materials are produced in the 

correct manner. This goal can be -- can be accomplished without the risk of decreasing the ongoing and 

growing application of these products in a constructive method. 

I encourage the people -- the EPA to use sound scientific evidence as it makes the final determination on 

classification. Such evidence does strongly suggest that the correct material classification is Subtitle D. 

We oppose the regulation of CCPs as a Subtitle -- Subtitle C or any hybrid classification

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0041-5

Organization1:Texas Concrete Pipe Association

Commenter1:Bob Folser

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

For the reasons stated above, the Texas Concrete Pipe Association respectfully requests that the EPA 

considers these impacts to our operations and deems that CCRs be regulated under Subtitle D, nonhazardous material with beneficial reuse capabilities.

Response: The Agency acknowledges and appreciates the comment. 
157

Comment Number: TRANS-DAL-0060-2

Organization1:Western Farmers Electric Cooperative

Commenter1:Gerald Butcher

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

In conclusion, Western Farmers respectfully requests that EPA maintain the Bevill amendment and 

regulate the disposal of CCR under Subtitle D.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0065-5

Organization1:Texas Coal Ash Utilization Group

Commenter1:Mike Silvertooth

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

In summary, TCAUG strongly supports and encourages the EPA to elect the RCRA D proposal option to 

manage CC -- CCPs per our comments addressed to the EPA panel this afternoon.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0069-2

Organization1:PMI Ash Technologies

Commenter1:Kyle Crake

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.6.1.5

Comment Excerpt Text:

PMI Ash supports EPA's management of CCRs under RCRA's Subtitle D non-hazardous waste program. 

This would provide uniform rules and higher standards for the utility and CCR industries. Implementation 

of the Subtitle D option will protect human health and the environment with the same standards and 

without the negative impacts caused by Subtitle C. 

The only issue is whether the standards can be enforced uniformly. Rather than a three- to four-year 

implementation as proposed by EPA's Subtitle D option, we suggest that they be able to be enforced more 

quickly via a legislative solution that would give the EPA full authority to regulate CCRs similar to 

municipal solid waste. 

PMI Ash supports strong standards via Subtitle D of RCRA by enacting federal enforcement authority 

such as recommended by the congressional Research Service entitled "Regulating Coal Combustion 

Waste Disposal: Issues for Congress."

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0075-4

Organization1:

Commenter1:Jimmy Lambert

Commenter Type: Private Citizen
158

Classification: Substantive

Comment Excerpt Text:

Simply put, a Subtitle C ruling would qualify as a jurisdictional power grab over states' rights.

I ask that the EPA consider realistic data from industry and issue a ruling in favor of Subtitle D.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0097-1

Organization1:NRG Energy

Commenter1:Jeffrey Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

NRG supports the development of federal regulations for coal combustion residuals under RCRA's 

Subtitle D non-hazardous waste program. We believe that a non-hazardous program is the best path 

forward because it will enable EPA to establish a program that protects the environment while not 

impacting beneficial use or the economy. NRG will provide written comments before the November 19th 

deadline. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0112-2

Organization1:Ameren Energy Fuels and Services

Commenter1:Charles Henderson

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

I want to strongly state our opposition to the Subtitle C option. Regulating CCPs under RCRA's 

hazardous waste program is simply regulatory overkill that would severely cripple the CCP beneficial use 

industry and unnecessarily raise the cost of power to our electric customers. 

Significant government research and demonstrations have supported CCP beneficial use recycling for 

many years. Please reconsider the effort to regulate CCPs under RCRA Subtitle C. Instead, RCRA Subitle 

D approach will accomplish everything essentially necessary to properly manage CCPs when storing, 

recycle, beneficially use, or dispose. 

Even the EPA has stated that there is no significant difference in the level of environmental protection 

between the proposed Subtitle D non-hazardous waste approach and its proposed Subtitle C hazardous 

waste approach. There is just no sound reason to pursue the Subtitle C approach when Subtitle D options 

offer the same degree of protection without the independent risk it burdens the economy, jobs, and 

electric customers. 

A Subtitle D approach is protective of human health and the environment and is clearly the correct 

regulatory approach.

Response: The Agency acknowledges and appreciates the comment. 
159

Comment Number: TRANS-DAL-0116-2

Organization1:American Concrete Pipe Association

Commenter1:Matt Childs

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The American Concrete Pipe Association agrees with EPA's position that it should not change the May 

2000 regulatory determination for beneficial use CCRs. The EPA has acknowledged that it has seen no 

evidence of damages from the beneficial uses of CCRs. It also believes that such beneficial uses of CCRs 

offer significant environmental benefits. 

Although the EPA would list CCRs under Subtitle C as a special waste by using Subtitle C to regulate 

CCRs, the EPA would be branding CCRs as a hazardous waste de facto. 

Given the choice of the two proposed alternatives by the EPA, the ACPA supports Subtitle D as being 

better suited to improve the safety of storing CCRs in impoundments, while not burdening CCRs with the 

label of hazardous waste. Thank you for your time today

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0124-2

Organization1:Geosynthetic Materials Association

Commenter1:Edward Silva

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

A brief word on the hazardous or non-hazardous question. While coal ash does contain heavy metals, it 

lacks the traditional characteristics of hazardous materials: Radioactivity or the presence of infectious 

medical waste. 

In the opinion of our trade organization, coal ash can be properly stored using Subtitle D regulations, a 

non-hazardous solid waste designation, with composite liner systems

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0003-2

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.2.4

Comment Excerpt Text:

It is a fact that coal ash does not qualify as hazardous waste based on its toxicity, which is similar to the 

toxicity of other building materials that it replaces when it's recycled. 

It is also a fact the landfill engineering standards EPA is proposing are essentially the same under both 

the Subtitle C hazardous and Subtitle D nonhazardous regulatory options. 

Designating coal ash as hazardous when destined for disposal does not result in a greater level of 

protection for the environment. It does give the federal EPA a clearer path to enforcing its new 
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engineering standards rather than delegating enforcement of EPA standards to the states. But getting 

that enforcement authority comes at a terrible price, the possible destruction of a recycling industry 

that greatly benefits our environment. 

Common sense says that risking an entire recycling industry over a regulatory turf battle is a bad idea, 

and common sense says that new coal ash disposal regulations should be enacted under Subtitle D, and 

EPA should work to promote safe and environmentally beneficial recycling as a preferred alternative to 

disposal. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0011-2

Organization1:Geosynthetic Materials Association

Commenter1:Andrew Aho

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

A brief word on the hazardous/non- hazardous issue. We believe that coal ash lacks the traditional 

characteristics of hazardous materials. In the opinion of our trade association, coal ash can be properly 

stored using Subtitle D regulations, a nonhazardous solid waste designation with a composite liner system

Comment Number: TRANS-DEN-0028-5

Organization1:Great River Energy

Commenter1:John Weeda

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

We support Subtitle D, and thank you for your time.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0045-3

Organization1:American Coal Ash Association

Commenter1:Melissa Hendricks

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

We can all agree that the spill in Tennessee is not acceptable. A Subtitle D regulation will address the 

problem more quickly than a Subtitle C regulation. The agency has enforcement ability, even with a 

Subtitle D regulation. 

The EPA made a commitment. The EPA has research to support its commitment. Please follow through 

with your commitment. Please continue to support recycling and coal combustion residuals. Please do not 

enact a rule that will be hazardous for Americas

Response: The Agency acknowledges and appreciates the comment. 
161

Comment Number: TRANS-DEN-0053-1

Organization1:Association of State and Territorial Solid Waste Management Officials

Commenter1:Gary Baughman

Commenter Type: State Government

Classification: Substantive

Other Sections: 7.3.1

Comment Excerpt Text:

The states overwhelmingly support the Subtitle D option over the Subtitle C option. The wastes do not 

meet the normal criteria to be listed as a hazardous waste.

To regulate these wastes as a hazardous waste will dilute our ability to focus our efforts on programs that 

are already strained for the proper management of hazardous waste

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0060-2

Organization1:Wyoming Department of Environmental Quality (DEQ)

Commenter1:Bob Doctor

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

We think that states should regulate under it Subtitle D rules and regulations. We're already doing so for 

municipal solid waste, which is characteristically a far greater threat to human health and the environment 

than coal combustion waste and doing a very good job of that. We believe that we should continue under 

that mode. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0073-2

Organization1:Novinda Corp.

Commenter1:Bill Byers

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

The small increase in raw material costs from using alternative materials will outweigh the peace of mind 

from avoidance of litigation from eliminating that liability.

The beneficial use of fly ash supports a multi-billion-dollar economy of small businesses, including 

Novinda, fly ash marketers, and lightweight brick manufacturers among others. That value, however, 

pales in comparison to the total return of the utility industry. The value represents less than one percent of 

the total revenues from the electric power utilities. 

If CCRs are designated a hazardous waste, the power utilities are more likely to landfill the CCRs than to 

place them into a potentially litigious marketplace. 
162

Regulating fly ash under Subtitle D addresses EPA's concerns and satisfies the agency's goals for CCRs 

by promoting beneficial use and increasing the economic incentives for industry to avoid landfilling by 

increasing structural requirements for landfills and impoundments. 

I strongly urge you to go with the Subtitle D route. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0095-1

Organization1:San Juan Coal Company

Commenter1:Paul Nazaryk

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Currently, according to the American Coal Ash Association, approximately 45 percent of CCR material is 

recycled or reused in mined land reclamation. In our view, the final rule should encourage beneficial use 

while at the same time protecting both the public and the environment.

We support the development of national standards to manage CCR material under RCRA Subtitle D

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0004-1

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.2 10.1.1

Comment Excerpt Text:

I've attended all eight of EPA public hearings on the proposed coal ash disposal regulations, and I'd like to 

thank EPA for providing such ample opportunity for citizens to speak out. In all of these hearings, one 

point of consensus stands out. Coal ash disposal regulations should be improved and incidents like the 

Kingston coal ash spill should never be allowed to happen again. 

Beyond that, the citizen comments have been divided. One group of citizens has been vocal in calling for 

Subtitle C, hazardous waste designation for coal ash. This group, for the most part, has gained its 

knowledge of coal ash from large, well-funded anti-coal environmental groups. These well-meaning 

citizens end up being only partially informed, because those major environmental groups completely 

ignore options for the safe and responsible recycling of coal ash. I challenge you to find even a mention of 

coal ash recycling in any of their publications. 

The other group of citizens you've heard from is comprised of people who have spent decades doing 

what's right for the environment creating safe and environmentally beneficial uses for coal ash that keep it 

out of landfills in the first place. These people are recyclers, architects, engineers, concrete producers, 

farmers, and more. Most of them are small business people, and all of them consider themselves to be 

environmentalists, too, because they're working every day to conserve energy and materials and reduce 

greenhouse gas emissions. 

This group of citizens has been unanimous in stating that Subtitle C hazardous designation for coal ash 

will wreck recycling of the material in this country, and possibly worldwide. I urge you to remember 

these facts: Coal ash does not qualify as a hazardous waste based on its toxicity. And its toxicity is similar 

to that of the materials it replaces when it's recycled. 
163

The landfill engineering standards being proposed by EPA are essentially the same under both EPA's 

hazardous and non-hazardous approaches. So you're not giving the environment more protection with a 

hazardous label. Finally, EPA's non-hazard approach can be implemented years sooner giving greater 

protection to our environment now instead of later. It is absurd to state that people will want to use more 

of a material in their homes and communities if EPA considers it's hazardous waste on the property of the 

people who produced it. 

Hundreds of citizens who actually work to recycle coal ash have told you at these hearings that Subtitle C 

will not work. Please listen to the citizens who have working knowledge of this subject and remember 

that they care about environmental protection just as much as people who issue scary press releases and 

fundraising appeals that improperly label coal ash as toxic waste. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0006-1

Organization1:

Commenter1:Craig Wallace

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

The best coal ash plan for the environment is recycling, keeping coal ash out of the landfills. The EPA 

and others have studied coal ash for 30 years determining a hazardous waste designation is not warranted. 

A hazardous waste designation unnecessarily puts all coal ash recycling at great risk. 

In 2008, 144 million tons of coal ash was produced. 44% of the coal ash was used safely in beneficial 

applications equating the 63 million tons of coal ash recycled. 

There are 495 coal-burning power plants depositing coal ash into 194 landfills and 161 ponds. According 

to the National Science Academy and the EPA, only 24 landfills are problematic or proven to 

compromise water supplies. This is only 6.7% of the landfills currently accepting coal ash. 

The majority of the problematic coal ash ponds -- or coal ash sites are ponds, which are being phased out 

with Subtitle D. Under Subtitle D, the EPA will specify and design criteria and standards for all coal ash 

storage in the U.S. Any state not in compliance with Subtitle D standards will be subject to litigation. 

Clearly, Subtitle D addresses the engineering failures of problematic coal ash deposit sites and gives the 

federal government the teeth to enforce the new standards. 

Coal ash recycling is the number one recycling success program in the U.S. Stigmatizing coal ash as a 

hazardous material will expose everyone using the product to liabilities from less than ethical attorneys. 

We are already experiencing the stigma as a result of these hearings. In addition, the mere cost of 

defending oneself in court is enough to discourage future beneficial use of coal ash. 

This discussion is not about burning coal or the toxicity of coal ash. This discussion has determined the 

best way to engineer and standardize coal ash landfills to protect the public safety. Subtitle D 

accomplishes this end goal without putting coal ash beneficial use at risk. If it did not address the issue, 

the Office of Management and Budget would not state it has a coal equal option to Subtitle C.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0007-1

Organization1:Boral Material Technologies

Commenter1:John Scoggan

Commenter Type: Beneficial User
164

Classification: Substantive

Comment Excerpt Text:

We support the EPA's effort to protect the human health and the environment. We don't want another 

disaster like TVA Kingston spill. We support regulation to ensure responsible disposal, but don't want to 

kill recycling in the process. Therefore, we support EPA's ruling for RCRA Subtitle D. The Kingston 

problem was a result of an engineering failure that can be addressed with a Subtitle D non-hazardous 

regulation

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0008-2

Organization1:Boral Material Technologies

Commenter1:Terry Peterson

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

I recognize during these hearings the undercurrent associated with generating power without burning coal 

as well as citizens' concern over inadequate state regulation. Obviously, generating power by burning coal 

has been an integral part of U.S. society and will remain so for many years. So I think it's important that 

we deal with this process by maintaining or recycling efforts in coal combustion residues. I suggest that as 

long as we are burning coal, the right thing to do is to encourage continuation and expansion of current 

recycling efforts. Supporting Subtitle D is a way to maintain this momentum. 

Just importantly, creating confidence among citizens that government agencies, whether federal or state, 

are protecting their interests is critical. I suggest that we can gain public confidence and achieve the 

necessary safeguards for proper landfilling -- properly landfilling CCRs through cooperation between the

EPA and state regulators using a Subtitle D classification. 

In closing, I recommend that the best option going forward for U.S. citizens is for the EPA to continue 

support by designating CCRs under a Subtitle D classification.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0010-2

Organization1:Sphere One

Commenter1:Ryan Brownhill

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.1.1

Comment Excerpt Text:

We're not arguing against new engineering standards. My heart goes out to the people whose lives and 

health have been affected by the improper storage of CCRs. The EPA must take action to protect them 

and the environment. The fact is that the engineering requirements for Subtitle D and Subtitle C are the 

same. So the protections provided to those people would be the same. The states all have programs that 

are effective in hand -- handling solid waste and monitoring solid waste landfills which have significantly 

higher concentrations of known carcinogens than CCRs. 

Once we acknowledge that coal ash is going to be generated, what's the best way to make sure that people 

aren't harmed? Recycle everything we can. If we could recycle 100% of the ash that is generated, no one 

would ever have to worry about how a landfill might affect their health. I know a Subtitle C ruling will 
165

seriously diminish recycling. I have the letters from our customers telling us exactly that. If you don't 

want to listen to me, listen to them. 

A Subtitle D ruling protects people in the same way as Subtitle C. A Subtitle D ruling will have no effect 

on the continued efforts to find new, innovative, safe uses for CCRs. The protections are the same. The 

ability to recycle as much of this waste stream as possible is only viable with a Subtitle D ruling. 

I'm proud to work in an industry that recycles, conserves natural resources, reduces CO2 emissions, and 

create jobs. My sincere hope is that the EP -- EPA does exactly what it has set out to do: protect people 

from improper storage of CCRs and maintain the beneficial use that exists today. Subtitle D is the only 

solution that does both. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0011-3

Organization1:Santee Cooper

Commenter1:Tom Edens

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

The Subtitle D option appears to be the most reasonable way to reduce the cost burden while still being 

protective of the environment. We request EPA to consider the comments from industry in regard to the 

actual pro -- projections of cost. South Carolina DHEC has a re -- robust program that is protective of the 

environment. They already require groundwater monitoring around our ponds and our ash landfills, 

groundwater is monitored by Santee Cooper by a professional geologist and analysis are sent to DHEC 

semi-annually. 

Santee Cooper urges EPA to consider the Subtitle D option. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0015-1

Organization1:Headwaters Resources

Commenter1:Keith Bargaheiser

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.3.1.5

Comment Excerpt Text:

And my comments today are related to the observations while reading the document and its definitions. 

One has to be puzzled as to why the EPA has created the term "coal combustion residue." By EPA's 

definition, the CCR means bottom ash, fly ash, boiler slag and flue gas desulphurization materials that are 

destined for disposal. CCRs are also known as coal combustion waste and fossil fuel combustion waste 

when destined for disposal. 

The commonly accepted terms of CCWs and FFC definitions are clear and concise on what is happening 

to the material and have existed for many years. So, again I ask: Why add to the confusion with this new 

term? 

By the EPA's definition, the term "coal combustion products" means fly ash, bottom ash, boiler slag and 

flue gas desulphurization materials that are beneficially used. This def -- this definition is in no way 

interchangeable with the term "CCR." As I reviewed the EPA document, it became clear the writers of the 

document did not grasp the meaning of the CCR, for throughout they used the term "CCR" for both 
166

beneficial use and disposal. The EPA has stated they have seen no evidence of damages from beneficial 

uses of CCRs. I ask you: How am I to characterize the term "CCR" in this sentence? 

If we use the EPA's definition previously discussed, then the CCRs are destined for disposal and 

beneficial use cannot occur. The correct terminology would be "CCPs" rather than "CCRs." This is just 

one example of the confusion caused by the misuse of terms within this documentation. 

If recycling is truly the national priority, I challenge you to embrace the use of CCPs for what they are: a 

national resource. We can start by opening a dialogue between the EPA, environmentalists and industry 

with a committee of stakeholders to resolve the issues. Under the existing draft, there will be no winners. 

We can only expect lawsuits and years of confrontation. 

If preventing disposal of CCPs and elimination of landfill ashes, everyone's goal, this can be done. Today 

technologies exist where we can take landfill ash and process it for beneficial use. With everyone's 

cooperation, our tomorrows can be giving back these sites to the public so they can enjoy it as nature 

intended it. 

The only true sustainable answer to this issue is Subtitle D

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0022-1

Organization1:

Commenter1:Robert Bergman

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Those of you who are asking for CCRs to be disposed in Subtitle C think the battle just to get CCRs in a 

lined landfill has been difficult, just wait until the power companies have to acquire permits to dispose of 

one of the largest industrial waste streams in America. And the groups represented here today will gladly 

take up your battle with your money. 

According to the EPA, the amount of all listed and characteristic hazardous waste disposed across the 

country in 2007 was just under 50 million tons. How much CCRs are produced each year? Two and a half 

times that amount, over 125 million tons annually. 

Imagine what is going to have to happen to dispose of all that material? Not only will land be -- have to 

be permitted, but the material may have to be transported on highways and railways through your towns 

in order to get to a qualified landfill. Do you want to start tomorrow? 

Even EPA admits that qualifications for permitting a Subtitle C landfill will take at least twice as long or 

longer to complete than it would a Subtitle D landfill which is constructed to the same liner and 

groundwater monitoring standards. The difference between -- the difference being the cost that power 

companies will pass on to you in order to meet whatever requirements the EPA puts on them. 

You say industry is not listening. Industry is listening. Industry is asking for the same construction 

standards as a Subtitle C landfill. They are just asking for administration of the program that will not use 

the same language that is applied to hazardous waste. 

Industry is just money -- money hungry? Every person here works to make a profit to live. Polluting our 

lands. Every coal ash marketer here considers themselves an environmentalist because their business is 

keeping coal ash out of landfills and into durable, sustainable products that are used every day. 

I'm asking everyone here today to take the opportunity to educate yourselves on what industry is asking 

the EPA for and why it believes that Subtitle D is the best option. Please visit the hospitality room for the 

American Coal Ash Association and Citizens for Recycling First which is located behind the conference 

room down the hallway to learn how your desires for a safe landfill can be met --
167

MR. HOFFMAN: Your time is up. 

MR. BERGMAN: -- in a quicker fashion by asking for Subtitle D

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0028-1

Organization1:Headwaters Incorporated

Commenter1:Tom Schmaltz

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Today EPA is asking whether coal combustion residual wastes should be regulated as Subtitle C, 

hazardous waste, or Subtitle D, non-hazardous waste. Over the past 30 years, this question has been 

answered by the federal government over and over again. First it was answered by Congress with the 

Bevill amendment to RCRA in 1980. For a second and third time it was answered by EPA in 1993 and 

2000 with a regulatory determination stating that coal ash wastes do not warrant Subtitle C regulation. 

The question has been answered thousands of times by the results of EPA tests that routinely show that 

CCRs failed to meet the hazardous waste toxicity thresholds established by EPA. There's little question 

then, based on the instincts of Congress, based on previous EPA determinations, and based on EPA tests, 

that CCRs destined for disposal should be a Subtitle D waste. 

But we can't ignore the damage cases that EPA cites as a potential need for Subtitle C regulation. No one 

can downplay the tragedy of the Kingston impoundment failure. But the Kingston impoundment failure 

and other damage cases cited are engineering failures, and we must distinguish between engineering 

failures and the nature of a waste. This is particularly true since the current Subtitle D disposal facility 

standards can be just as protective of the environmental as Subtitle C standards. 

It seems counterproductive to mislabel a waste in order to gain enforcement and permitting authority no 

matter how convenient. Such an action for convenience sets a dangerous precedent and may be 

considered an unwise use of EPA's authority. It prepares a slippery slope towards negative outcomes and 

unintended consequences, especially in creating a stigma towards CCP utilizations. 

The chasm between hazardous waste designation and encouraging beneficial use only creates this stigma -

- not only creates this stigma but also raises uncertainty and confusion around issues of worker safety, 

transportation, liability, public perception, sustainability goals, alleged -- allied industry jobs, product 

quality, the list goes on. EPA's asking the wrong question. If it wishes to gain enforcement and permit 

authority -- permitting authority under Subtitle D, why doesn't it ask Congress to change RCRA? 

We need to feel confident that our federal agencies wield their authority properly under well-crafted laws. 

We need properly-engineered landfills, we need to encourage safe utilization, and all this can be done 

under Subtitle D

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0029-1

Organization1:Progress Energy

Commenter1:Rob Reynolds

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:
168

Progress Energy supports the development of federal regulations for CCRs under Subtitle D. The 

development of rules under this approach will establish a federal standard for all CCR facilities to meet. 

Many states already have effective solid waste statutes and regulatory programs that will provide an 

additional layer of regulatory oversight for management, reuse and disposal of CCRs. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0030-2

Organization1:Geosynthetic Materials Association

Commenter1:Boyd Ramsey

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

A brief word on the hazardous, non-hazardous question. While coal ash does contain heavy metals, it 

lacks the traditional characteristics of hazardous materials, radioactivity, the presence of infectious 

medical waste, et cetera. In the opinion of our trade organization, coal ash can be properly stored using 

Subtitle D regulations, a non- hazardous solid waste with composite lining systems. 

I've done four of these, folks. I'm going to add a personal note. As a result of my career path, I arguably 

know more about our country's waste than almost anyone. The Kingston coal ash spill was tragic. 

However, the potential for far more serious and more damaging incidents at dozens of Superfund sites 

contaminated with truly hazardous materials that are currently seeing zero mitigation activity is a gross 

error in our collective national judgement

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0039-4

Organization1:SEFA Group

Commenter1:Burt Nunn

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

I urge you to please consider the science behind the material. By the EPA's own definition, fly ash is not 

hazardous. In fact, the trace amounts of heavy metals found in fly ash are not dissimilar from what we 

find in our own backyards and -- and waterways naturally. 

In summary -- in summary, fly ash is not hazardous; and therefore, the disposal of fly ash should not be 

regulated under Subtitle C. Listing and regulated fly ash under Subtitle C will create a tremendous 

reduction in the volume of fly ash and -- that is beneficially used and redirect millions of tons to landfills 

instead of away from overstressed landfills. 

I implore the EPA to implement an alternative to Subtitle C if it deems Subtitle D --

MR. HOFFMAN: Excuse me. Your time is up. 

MR. NUNN: -- to be inadequate. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0060-3

Organization1:Trans Ash
169

Commenter1:Bruce Kazich

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 9.2.1

Comment Excerpt Text:

Let us also consider the economic impact of a Subtitle C designation. The American Coal Council 

estimates an economic impact between 6 and $11 billion. Additionally, between 130,000 and 240,000 

green jobs would be in jeopardy. With the current economic crisis and no significant recovery in sight, 

how can we justify a Subtitle C designation when Subtitle D clearly provides for the same level of 

environmental safety? 

The environment can and will be protected with strong regulations under Subtitle D. The EPA should 

develop a performance-based federal program for CCPs under RCRA D which will insure that disposal is 

safely managed while continuing to promote and expand beneficial use.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0064-1

Organization1:

Commenter1:Bobby Raia

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

I'm a civil engineer currently working within the coal ash management business that specialize -- that we 

specializes in recycling coal combustion residuals. Currently, approximately 50% of all electricity within 

the United States is generated by the use of coal with its -- with its uses expected to increase by nine -- by 

19% by 2030, as suggested by the United States Department of Energy. 

Of all the coal used to generate electricity, 44% of its residuals, or CCRs, are currently beneficially 

recycled in such items as concrete, brick, mortar, wallboard, drywall, green fill projects, pavement, and 

blocks. A hazardous classification under Subtitle C would have a crippling effect on the numerous CCR 

recycling programs, programs that I participated in, programs that work. 

There is no doubt in my mind that a hazardous classification would give coal ash and its recycling 

programs an unwarranted stigma. The industry has already felt the effects due to negative spin and the 

looming potential of a hazardous classification. 

Engineers, architects and contractors will be unlikely to specify the use of these products in fear of 

professional liability, forcing them to use alternate, more expensive natural resources. If the industry is 

already feeling the impact, what is the future of the coal ash recycling industry should the EPA classify 

coal ash as hazardous? Will there even be an industry? How will this affect the jobs in the industry? How 

will this affect my job? 

What seems to be forgotten is that between the current stigma and the potential industry extinction, CCRs 

will continue to be generated. And as CCRs continue to be generated, if they aren't being recycled, then 

they'll have to be landfilled. But classifying coal ash -- sorry. Classifying coal ash as a hazardous waste, 

40% percent (sic) of the coal ash that is currently recycled will be sent to landfills for disposal. 

And if these landfills are going to be required to accommodate the added quantity, their life will be 

shortened by nearly half, forcing utility companies to expand or construct new landfills to accommodate 

the added quantities. And these costs are going to be reflected on your monthly bill. 

With landfills being expanded and constructed, the EPA, through these proposals, has attempted to 

standardize and strengthen the engineering standards and protective features associated with these 

expansions and new construction. However, both the Subtitle C and D proposals are essentially the same 
170

with the EPA actually stating that the new disposal regulations will take effect quicker under the Subtitle 

D, non-hazardous approach. 

I'll conclude my speech with this. I strongly believe the EPA should regulate coal ash under the proposed 

Subtitle D, non-hazardous approach. Subtitle -- this approach protects the environment and human health 

with its standards for landfills, yet it reinforces the values and goals of recycling by promoting the use of 

coal ash in a variety of materials

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0066-1

Organization1:Edison Electric Institute

Commenter1:Dan Riedinger

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Many different voices have weighed in, including those of large industry groups, small businesses, 

environmental organizations, religious leaders, state regulators, politicians, and concerned citizens. 

And you've been asked to consider many different concerns: the desire for binding coal ash management 

standards that are federally enforceable; the imperative of maintaining coal ash beneficial use, one of the 

largest and most successful U.S. recycling efforts and the huge number of associated jobs; and the goal of 

avoiding sharp electricity rate increases; and the need to ensure protection of public health and the 

environment. All ofthese issues can be addressed through federal regulation of coal ash as a nonhazardous waste. 

EEI has supported this approach since the initiation of this rule-making proceeding. This approach is 

consistent with the agency's 2000 determination that coal ash does not warrant regulation as a hazardous 

waste because it does not exhibit the characteristics of hazardous waste. 

Over the past decade, the characteristics of coal ash have not changed, nor has the scientific foundation on 

which EPA determined that coal ash could safely be managed as non-hazardous waste. What has changed 

is a level of public awareness, interest and concern. EPA now must try to address stakeholders' varied 

concerns. The solution isn't simply to impose the most burdensome regulation possible on utilities whose 

customers would bear the brunt of these costs. In fact, regulating coal ash as hazardous would not have 

prevented the December 2008 spill at the nearby Kingston facility. 

Instead, we urge EPA to adopt a strong, measured response that effectively targets legitimate coal ash 

management issues. This can be done by devising federal requirements for managing coal ash as a nonhazardous waste. This approach would provide the same level of public protection, as would hazardous 

waste regulation, but without the extra $12 billion in annual costs. 

Both approaches would require installation of liners to prevent leaching, and both would require 

groundwater monitoring. These requirements would be enforceable through citizen and state lawsuits, and 

if the agency chooses, by EPA itself under the same authority as the agency used to develop federally 

enforceable non-hazardous waste rules for municipal solid waste. 

In addition, EEI supports adoption of federal dam safety standards that would help ensure the structural 

integrity of coal ash impoundments such as that used at the Kingston facility. Everyone here wants federal 

regulation with teeth, but we don't need regulation that imposes huge costs on consumers without 

commensurate public health benefits, threatens to eliminate the many beneficial uses of coal ash, and that 

puts U.S. Jobs at risk

Response: The Agency acknowledges and appreciates the comment. 
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Comment Number: TRANS-KNX-0072-2

Organization1:Mineral Resource Technologies

Commenter1:Mike Silvertooth

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Cemex urges EPA to elect man -- management of CCPs under RCRA Subtitle D. This option allows 

CCPs to be managed under the same similar guidelines proposed under the RCRA Subtitle C option, but 

allows CCPs to remain classified as a nonhazardous material. 

Should CCPs fall under RCRA Subtitle C management, there are too many negative variable that will 

hamper the beneficial use of CCPs and will cripple a large avenue in the reduction of greenhouse gases in 

our country.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0073-2

Organization1:Full Circle Solutions

Commenter1:Bob Waldrop

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

The stigma issue is real. It's affecting CCP companies today. Therefore, we urge EPA to make an 

informed decision on the regulation of CCPs and ben -- and beneficial recycling of these valuable 

materials. If EPA truly supports recycling, Subtitle D is the answer. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0074-3

Organization1:Full Circle Solutions

Commenter1:Tyler Farrar

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.1.1

Comment Excerpt Text:

In our grain and reusable society, it is in our best interest to continue to reuse products, such as CCRs, 

that help us live more productive and enjoyable lives. CCRs directly and directly contribute over $4.5 

billion annually to the United States economy and thousands of jobs. In the current state of our economic 

situation, a Subtitle C classification would devastate small businesses and individual towns that depend 

on our industry for survival. 

Many people pride themselves on efforts to recycle paper, glass, cans, and cardboard. These recycle 

strategies are employed widely in the United States to help cut down the need for landfills and conserve 

limited reser -- sources. 

Please allow us to continue this tradition by keeping CCRs as Subtitle D. 
172

Comment Number: TRANS-KNX-0083-1

Organization1:Headwaters Resources (spoke as employee)

Commenter1:Jim Doles

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Previously, fly ash has been reviewed by the EPA and found nonhazardous. Scientists are -- scientific 

research supports this outcome. The recent failure of the ash impoundment in Kingston, Tennessee has --

which has brought the spotlight on ash, was related to a civil-engineering failure, not a failure of the 

product being contained. 

Regulating the use of CCPs as hazardous will give it -- have a neg -- negative impact on beneficial use, 

therefore creating need for more land fills. And people don't like land fills, either. 

Wind and solar power are clean, but with the fraction of power that they supply and the many years it will 

take to build their infrastructure, EPA should not phase out coal so quickly. The dependence on coal can 

and won't -- can't and won't go away soon. These regulations will raise power bills and just be transferred 

to the general public. 

Beneficial use of ash has been around for years with the environmentally-friendly state of California 

requiring the highest Portland cement replacements with fly ash. The impact even by the media on oil 

spills and ash pond problems are negative. Positive things don't get news attention. 

Let's try to utilize several hundred years of coal reserves to keep jobs in America. I ask the EPA to 

continue regulating CCPs as Subtitle D, encouraging its continued beneficial use in building materials and 

other environmentally- friendly products

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0094-1

Organization1:Tennessee Paper Council and American Forest & Paper Association

Commenter1:Richmond Holland

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

We supped the EPA's decision, first, not to include coal combustion byproducts from the manufacturing 

sector in this rule making. We believe our management of coal ash differs somewhat from that of the 

electric utilities. 

Pulp and paper mills use a variety of fuels in addition to coal. As a result, we -- our mills frequently comanage coal ash and with ash generated from other fuels, including biomass. We believe that our ashmanagement units are significantly different from that of the utility sector. 

We do support the decision reached by the Clinton administration in 2000 that coal ash should be 

regulated under Subtitle D, the nonhazardous waste provision of RCRA. We believe that much of the 

additional information developed by EPA subsequent to that determination does not support the need for 

applying hazardous waste regulations to coal byproducts. 

Appropriate management standards and engineering design would have avoided the catastrophic failure of 

the TVA surface impoundment, which can be achieved through nonhazardous waste requirement. 

If EPA promulgates hazardous waste regulations for coal combustion byproducts, those materials may be 

disposed rather than reused. This is not only inconsistent with years of U.S. Policy to support recycling 

and reuse, but is a waste of resources, and is inconsistent with the goals of the Resource Conservation 

Recovery Act
173

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0098-3

Organization1:SEFA Group

Commenter1:Mark Casey

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 11.3

Comment Excerpt Text:

There's no doubt that this issue has bum -- become political, and politics is about compromise. Just 

recently the Congressional Reacher -- Research Service has suggested that Congress add a new Subtitle K 

to federal waste law to give EPA enforcement authority over coal waste rules without declaring the waste 

hazardous and to regulate beneficial reuse of coal ash. That would be a compromise. 

This new proposal, as well as Subtitle D, would take away the stigma associated with the hazardous label, 

and help preserve one of America's greatest all-time recycling success -- success stories.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0116-3

Organization1:Kentucky Chamber of Commerce

Commenter1:Chad Harpole

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

In closing, the Chamber urges USEPA to develop nonhazardous waste regulations for coal ash under 

Subtitle D of RCRA. Such an approach would allow USEPA to work with states in implementing 

regulations that are fully protective of human health and our environment without negatively impacting 

coal ash's beneficial use and causing an increase in energy prices at a time when our country can least 

afford it.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0128-1

Organization1:Central Alabama Electric Cooperative

Commenter1:Terry Mitchell

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 6.1.1

Comment Excerpt Text:

Electricity is the fuel of the Information Age, and coal accounts for more than half of the electricity 

produced in the United States. Over the past 30 years, utilities and specialty companies have found ways 

to increase the ability to recover coal residue. And I know for a fact that that is true, for my -- over a 

decade, my father fed, clothed and educated his family by working for a company that's an -- that -- that 

collected the fly ash in Wilsonville, Alabama. 

I can look each of you in the eye today and tell you that I have touched fly ash. I have washed it from my 

father's truck, and I have seen it on the clothes of my father when he came home from work. I can tell you 

that fly ash is not and does not need to be considered a hazardous waste. 
174

For every ton of fly ash that is used is a ton that doesn't go into a landfill that we have to back up with our 

federal moneys and our local moneys. You know, using fly ash in something as simple as concrete is a 

great way to Build Green without sacrificing quality or cost. 

Central Alabama, as you've already heard, is a member of PowerSouth. It's an energy cooperative that, 

since 1941, has been able to handle its own fly ash and has done an outstanding job with it. 

But I ask each of you to think about Winfred and Mable Grogan, an older couple that lives close to my 

home. They have a modest home and they live on a fixed income. Seventy cents out of every dollar they 

pay for retail power -- for purchase power, 60% of that comes from coal. They are the members who 

remember when the lights came on. They are not the type of people who would ask for help. In fact, they 

would forgo medical treatment just to keep their power on

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0129-4

Organization1:PowerSouth Energy Cooperative

Commenter1:Keith Stephens

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

PowerSouth recognizes public concern over the handling and disposal of coal combustion residuals, or 

CCRs, and the EPA's obligation to protect the environment. However, the issue of whether CCR should 

be regulated as a hazardous waste has been thoroughly evaluated and resolved. In its 2000 regulatory 

determination, the EPA found that coal ash does not warrant hazardous- waste regulation, concluding 

instead that the most appropriate mechanism for regulation would be under subtitle D, non-hazardous 

waste regulations. There's no basis or need for -- to regulate under subtitle C, so the final course of action 

that the EPA chooses must be carefully considered to avoid unintended counterproductive consequences 

that would jeopardize beneficial uses and increase energy costs with no real environmental benefit.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0201-1

Organization1:American Coal Ash Association

Commenter1:Mark Bryant

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

The netagi -- negative stigma created by EPA's proposal is growing. The regulatory effect appears 

weighted towards placing -- excuse me -- a hazardous special waste on a nonhazardous material, and has 

resulted in uncertainty, misinformation, and anxiety in an otherwise normal commodity market. The 

damage to CCR markets is real, and the people that use, manage, and trade them are being harmed.

Additional examples of the negative are available today that EPA needs to be aware of. EPA's proposal is 

-- hurts hard-working and honest, small businessmen and women and their employees.

All this harm and suffering because EPA wants federal jurisdiction for a nonhazardous material, 
175

nonhazardous by any test or criteria. A federal or a state-led RCRA Subtitle D program will be more than 

adequate for everyone's protection and safety.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0201-3

Organization1:American Coal Ash Association

Commenter1:Mark Bryant

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

RCRA works. According to RCRA, CCRs are not hazardous. Government-funded research and 

demonstration has supported beneficial use and recycling for years. This industry is based on good 

science.

Subtitle D is technically sufficient, and all the good people will be protected and not harmed any further.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0006-2

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

For those who want to saddle coal ash with a hazardous waste label, here are some inconvenient truths: 

Coal ash does not qualify as a hazardous waste based on its toxicity and its toxicity is similar to that of the 

materials it replaces when it's recycled. 

The landfill regu -- engineering standards being proposed by EPA are essentially the same under both 

EPA's hazardous and non-hazardous approaches. So you're not going to be giving the environment more 

protection with a hazardous label. 

Finally, EPA's non-hazardous proach -- approach can be implemented years sooner, getting greater 

protection for our environment now instead of later. 

Common sense and the spirit of conservation demand the Subtitle D non-hazardous approach. It will 

improve coal ash disposal standards faster and it will do it without re -- destroying recycling efforts with 

an unnecessary hazardous stigma.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0007-3

Organization1:Gibbco, Inc.

Commenter1:Bruce Kazich

Commenter Type: Beneficial User

Classification: Substantive
176

Comment Excerpt Text:

We encourage EPA to develop a performance-based federal program for CCPs under RCRA D, which 

will ensure that disposal is safely managed, while continuing to promote and expand beneficial use.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0010-2

Organization1:

Commenter1:Craig Wallace

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.1.1

Comment Excerpt Text:

Coal is not going away anytime soon. Population growth is increasing our demand for affordable energy. 

So the best thing to do is to safely recycle as much coal ash as possible until renewable energies are 

competitive in a free market. 

Subtitle D allows us to continue to promote coal ash beneficial use. EPA support for coal ash recycling 

has been invaluable in changing people's skepticisms and perceptions. It is disheartening to see the EPA 

and other knowledgeable people who know the truth about coal ash toxicity push Subtitle C at great risks 

to future coal ash beneficial uses. 

The goal for most in this room is to improve coal ash disposal methods, to improve our public safety and 

protect our environment. Let's fix the problem without destroying an industry that offers numerous 

benefits to society, and most of all keeps coal ash from being disposed of in a landfill in the first place. 

Subtitle D is the right choice for the environment. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0022-1

Organization1:Headwaters Resources (spoke as employee)

Commenter1:David Marshall

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

The EPA has stated they do not believe that a Subtitle C special waste designation will be harmful to 

recycling efforts. I am here to tell you that we have already seen attacks on our successful efforts at 

utilization targeted by our customer -- competitor, even those -- those competitors products test out the 

same as our coal combustion products. Those competitors are using this opportunity as a fear tactic, even 

before the regulations are decided, to try to create a market advantage for themselves. Many of our 

customers know better and they recognize the effort for what it is. But the proof of stigma is already here. 

The fact we will hear today from people who cry the danger of fly ask without really knowing what the 

facts are is another dumo -- demonstrable example of stigmas beginning to impact the potential for this 

effective recycling program. It can only get worse. 

Fly ash and bottom ash result from burning coal in power plants. The Clean Air Act efforts over the past 

25 years has significantly changed the amount and type of emissions allowed from these plants and has 

caused the utilization industry to adapt to the changes of products generated. Many older plants have been 

closed, technology to make unusable ash accept -- acceptable have been developed and the market for this 

recycled material has grown significantly. 
177

Coal ash is no mystery material, it is simply the minerals that were trapped with plant matter when the 

coal deposits were originally formed. It is the prehistoric sands, silts and clays of those times. When 

chemical analysis of coal ash and soil from your own back yard are compared, there is great similarity. 

The EPA defines the standards for a hazardous material and in no measure does the fly ash, bottom ash or 

gypsum generated at these plants meet the EPA standards for hazardous. To list them as special under the 

hazardous guidelines of Subtitle C is -- is disingenuous. It would almost require that the EPA change their 

definitions of hazardous, and they have not indicated this is an issue. 

Fear of the unknown is hard at work in this public effort and we should all be cautioned. 

Our industry works across many state lines and a national standard of Subtitle D would be welcomed so 

that each state will have standard design and operating protocol to follow. And Subtitle D can be 

implemented quickly, within six months of final rules. Subtitle D is the standard for household waste 

disposal and fly ash and bottom ash do not contain the wide range of potentially harmful chemicals 

thrown away everyday. 

Let's use some common sense, let's understand the science at work, and let's move forward with a nonhazardous label that will support the largest recycling program in the U.S

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0026-1

Organization1:Headwaters Resources

Commenter1:Gary England

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

Headwaters Resources is the largest manager of post-combustion materials in the country. We currently 

operate in over 100 utility sites across the country. And as the largest manager of coal combustion 

products, we are involved in all aspects of the utilization of this valuable recycled product. 

In 2008 the benefits realized by re -- utilizing fly ash in concrete and other beneficial uses resulted in this 

country saving 159 trillion BTUs of energy, 12 million tons of CO2 production, 32 billion gallons of 

water, and save between 5- and $7 billion. I would hate to see these benefits go away. 

We have already been notified by several customers and state agencies that if the EPA designates fly ash 

as a Subtitle C waste, they will not risk the liability and potential litigation and will cease utilizing fly ash 

in their products and applications. Many have already ceased the use of fly ash until this matter is 

resolved and the future litigation is settled. The stigma is real. 

Why classify fly ash as a Subtitle C waste? Simply move jurisdiction from the states and give it to the 

federal government. Fly ash, in reality, does not qualify as a hazardous waste based upon its toxicity. This 

isn't opinion; this is science based on standardized tests that show the metal levels are well below the 

EPA's own standards established for the listing of a hazardous waste. 

I agree that human health and the environment must be protected. What I don't feel is that category --

categorizing fly ash Subtitle C hazardous waste is the best way to do that. It will take away from the 

benefits of utilizing fly ash and reducing the CO2 produced from cement manufacturing. 

Under both of the EPA proposed approaches, whether it is a Subtitle D or Subtitle C, the landfill 

construction and design standards are essentially the same, with Subtitle D being enacted sooner than the 

Subtitle C approach. If the goal is to protect the environment and human health, does it not make sense to 

enact the safeguard as quickly as possible. The Subtitle C approach is not a stronger option, it simply 

determines who has the regulatory enforcement. 

We have heard in other hearings and press releases that there are those that believe that there is more 

stringent regulation of cost to disposal increase than there would be more emphis -- emphasis on 
178

beneficial use. Making disposal more expensive will not increase utilization. 

In 2000 utilization of fly ash was approximately 30%; in 2008 that utilization is 44%, almost a 50% 

increase. This was not because of more expensive disposal costs but through the efforts of companies like 

ours that to continue develop more and better uses. It was also because in 2000 the EPA made the 

determination that fly ash did not pose a health risk and did not warrant being regulated as a waste. 

It is our position that Subtitle D is the only correct and prudent answer

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0032-2

Organization1:Kentucky Department of Environmental Protection

Commenter1:Bruce Scott

Commenter Type: State Government

Classification: Substantive

Other Sections: 7.3.1

Comment Excerpt Text:

The Environmental Council of States, or ECOS, in March 2010, reaffirmed a 2008 Resolution on the 

regulation of coal combustion products that recognized the previous findings of the EPA and supports the 

beneficial reuse of CCR, and regulation -- and that regulation under Subtitle C would negatively impact 

the beneficial reuse of CCR. The resolution affirms that the additional level of oversight is unwarranted 

and dip -- duplicates the existing state regulatory programs, and urged EPA to conclude that CCR should 

be regulated under Subtitle D, and called upon the EPA to collaborate with states to develop a national 

framework for beneficial reuse of CCR. Yet, this EPA administration has repeatedly ignored the 

recommendations made by their state counterparts in protecting human health and the environment. 

Simply put, it is not necessary or appropriate to use Subtitle C to enhance or improve the regulation of 

CCR. Regulation via an appropriate Subtitle D approach would achieve the same objectives without the 

unnecessary regulatory complication, higher cost, and with no loss in environmental protection. 

In Kentucky alone, the amount of hazardous waste that would have to be managed under Subtitle C would 

increase from approximately 100,000 tons per year to approximately 10 million tons per year, a 100-fold 

increase. We would remind EPA that Kentucky currently has no authorized hazardous waste land disposal 

facilities. This proposal would create several such facilities

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0034-2

Organization1:Geosynthetic Materials Association

Commenter1:Matt Skinner

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

A brief word on the hazardous/non-hazardous question. While coal ash does contain heavy metals, it 

lacks the traditional characteristics of hazardous materials, including radioactivity, the presence of 

infectious medical waste, and other similar om -- com -- compositions. 

In the opinion of our trade organization, coal ash can properly be stored using Subtitle D regulations, a 

non-hazardous solid waste designation, with composite liner systems

Response: The Agency acknowledges and appreciates the comment. 
179

Comment Number: TRANS-LVL-0038-1

Organization1:Boral Material Technologies

Commenter1:John Scoggan

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

We manage coal combustion products, principally, fly ash for concrete. We've been in business for over 

50 years. We support the EPA's efforts to protect the human health and the environment. We support 

regulation to ensure responsible disposal but don't want to kill recycling in the process. Therefore, we 

support EPA's ruling for RCRA Subtitle D. 

Fly ash been -- has been used in concrete since the 1920s. The federal government and the EPA have 

encouraged and supported the use fly ash in concrete for over two decades

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0039-2

Organization1:Boral Material Technologies

Commenter1:Terry Peterson

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

I suggest that as long as we are burning coal, the right thing to do is encourage the continuation and 

expansion of current recycling efforts. Supporting Subtitle D is the way to maintain this momentum. Just 

as importantly, creating confidence amongst citizens that government agencies, whether federal or state, 

are protecting their interest is critical. I suggest that we can gain public confidence, achieve the necessary 

safeguards for properly landfilling CCRs through cooperation between the EPA and state regulators using 

a Subtitle D classification. In closing, I recommend that the best option going forward for U.S. citizens is 

for EPA to continue its support using a Subtitle D classification for CCRs.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0041-2

Organization1:Charah

Commenter1:Charles Price

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

The protective features proposed by EPA for CCR landfills under the Subtitle C and Subtitle D alternates 

are essentially the same; therefore, Subtitle D regulation -- regulatory program, by your own description, 

will provide the necessary protection and would avoid further damage to the CCP recycling industry. 

The Subtitle D approach is clearly the appropriate regulatory mechanism that will protect the environment 

and avoid damage to the recycling industry. 

I ask that you avoid damaging the best recycling story in America and regulate under Subtitle D
180

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0042-1

Organization1:Charah

Commenter1:Nathan Boone

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Our company is very active in the recycling of coal combustion products that are derived from coal ash 

and we are proud to be associated with one of the most successful recycling industries in the United 

States. 

In accordance with our dedication to the responsible management of CCRs, we support EPA's effort to 

implement regulations on the disposal of CCRs under Subtitle D, which would be consistent with two 

previous decisions made by the EPA concluding that CCRs do not warrant classification as hazardous 

materials

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0048-3

Organization1:Sphere One

Commenter1:Ryan Brownhill

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Subtitle D gives all the same technical protections to the environment that Subtitle C does with national 

standards and a quicker implementation schedule. It carries virtually no risk of devastating an entire 

industry that is dedicated to recycling over 40 million tons of a waste stream that would be otherwise 

landfilled. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0060-2

Organization1:Mineral Resource Technologies

Commenter1:Walter LaMaire

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

MRT fully supports the A -- EPA's proposed RCRA Subtitle D --

MS. GENTILE: Mr. LaMaier, your time is up. Thank you for your comments. 

(Applause) 

MR. LAMAIRE: -- option to manage CCPs. This option increases the existing physical requirements and 

management guidelines of CCPs on a federal level almost identically to the RCRA Subtitle C option, but 

allows CCPs to remain clearly classified as non-hazardous materials. Should the EPA choose to reclassify 
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CCPs under RCRA Subtitle C, the encapsulated beneficial uses supported by the EPA could be severely 

limited or potentially eliminated due to end consumer concerns.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0071-1

Organization1:Commerce Lexington

Commenter1:Tyler Campbell

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.1.1 10.4.2 9.3.7

Comment Excerpt Text:

Again, for -- for the members of my organization, the -- we represent electric utilities, power plants, and 

we also have a rep -- representation of ash marketers. The materials that these are -- that coal ash used for, 

and -- and has been stated here today, include cement and concrete applications. They're found in 

highway constructions programs and wallboard manufacturing, drywall. And all of this can be used to 

reduce the volume of disposed waste without endangering health and -- human health and the 

environment. 

The regulation of and the disposal CCRs under RCRA's hazardous waste rules, even with an exemption 

for beneficial use, could have a dedest -- a devastating impact on CPR -- CCR beneficial use because of 

the stigma associated with regulating any CCRs under the hazardous waste program. 

Given the overwhelming economic challenges confronting all sectors of the U.S. economy, we honestly 

believe that it's absolutely critical the EPA and the state come to a resolution regulating coal ash under 

Subtitle D in -- in an effort to work with the states, and not impose unnecessary regulation and controls on 

the electric power industry. And that would drive -- serve to drive up cost for the business community and 

con -- and residential consumers

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0085-1

Organization1:

Commenter1:Bill Chlebowy

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Coal ash should remain regulated under Subtitle D regulations and not be regulated as a hazard --

hazardous waste under Subtitle C. Subtitle D regulations govern the -- the disposal of household garbage. 

It makes no sense to adopt more stringent regulations for coal ash than garbage since garbage impacts the 

environment a great deal more than coal ash. 

Leachate, which is water that percolates through a material, from a garbage landfill contains more 

contaminants and undesirables than leachate from a coal ash monofill or a landfill. In many instances, 

leachate from a coal ash landfill meets federal discharge standards that requires no treatment. You can't 

say the same about leachate from a garbage landfill. 

Coal ash is a natural resource. After you burn coal, about 10% of it remains as coal ash. Coal comes from 

plants and trees, thick swamps, and marshes that have decayed and been subject to heat and pressure over 

millions of years. Every ingredient in coal, and thus every ingredient in coal ash is a natural material. In 

fact, you can say coal ash is an organic material per today's lingo
182

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0101-2

Organization1:American Coal Ash Association

Commenter1:Mark Bryant

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Also in previous testimony, as a scientist and engineer having worked in the geotechnical environmental 

engineering fields, ash management, landfill, and commodities industries, my comments suggested that 

the appropriate model to rectify this issue already exists before us, that being the RCRA Subtitle D, nonhazardous municipal solid waste landfill rules promulgated in the late 80s and 90s. 

Today I would like to address the facts and data that this decision RCRA D or C, should be based on. 

There is considerable information, good science, generated over the last 20-plus years of research and 

demonstration, much of which was supported in partnership with honest and hard-working regulators at 

EPA, both state and federal. It has been proven that their charge of adequately protective of human health 

and the environment is best served by a RCRA Subtitle D solution. 

Recently, almost daily, new information continues to emerge from various sources that supports a nonhazardous solution. While these works are new, none of being found invalid, and they are considered 

good science. 

I believe that anyone in the room will support a call for a national standard for the safe management of 

these materials as a solid waste, but not hazardous. This would not be good science. It would not make for 

good public policy. 

We have heard testimony that the goal of some of the environmental organizations represented in these 

hearings is to raise the cost of coal-fired generation to a level competitive with wind or solar. A fair goal, 

understandable, given their beliefs. But if this is to become public policy, it should be based on sound 

science, solid science, research, publication, and a scalding peer-review process, and then found valid. 

In your opening comments, it was mentioned that the panel could ask questions. I hope that I may ask a 

question and make a request: That EPA, when considering all of the information presented in these 

hearings, evaluate the legitimacy and the validity of the science upon which these decisions are based. 

Remember, the beneficial use and recycling industry is comprised of many small businesses. In fact, 

based on information available to the public, the largest ash management firm is about a fraction of the 

Sierra Club's annual revenue. 

These are small businesses, and their employees' futures hang in the balance of this decision. 

RCRA works. Trust the process. These materials are not hazardous by any measure. We simply need to 

strengthen the national

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0104-2

Organization1:

Commenter1:Marsha Hicks

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I support the EPA's effort to implement regulations that are designed to avoid structural failures of 
183

impoundments and require additional safeguards for the design and operation of receiving ponds and 

landfills. From what I have learned about the two proposed alternive (sic) regulations, I think the 

approach under Subtitle D is the best. 

As with the Subtitle C proposal, Subtitle D will have engineering requirements to protect the 

environment, such as liners and ground-water monitoring; will provide stronger oversight of structural 

integrity of impoundments. Under Subtitle D, CCRs remain classified as a non- hazardous waste. The 

recycling of CCRs is important, and it's important to consider it non- hazardous so that this recycling will 

remain as a safe, environmentally-friendly alternative to disposal.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0110-3

Organization1:University of Kentucky Center for Applied Energy Research

Commenter1:Tom Robl

Commenter Type: Academia

Classification: Substantive

Comment Excerpt Text:

I encourage the agency to accept regulation under Subtitle D, which I believe will give a -- a -- a balanced 

benefit

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0115-1

Organization1:Citizens for Recycling First (his comment was submitted as a concerned citizen)

Commenter1:Ben Franklin

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

I've read through both proposals and see very little difference in either one of them. The main differences 

that jump out at me are -- are that under Subtitle C, hazardous, the EPA will have control over regulation 

of how these materials are stored and how they are beneficially used. 

You would regulate the materials under a hazardous guideline, but create a new subcategory called 

special waste. I also understand it would take close to five years for the EPA to implement that Subtitle C 

plan. 

Under Subtitle D, however, the non-hazardous proposal, the individual state would continue -- the 

individual states would continue to regulate the materials as a solid waste, as they currently do, but with 

federal oversight. Again, the EPA has stated that with the Subtitle D plan, it could be implemented in less 

than two years, not in five. 

When comparing the two proposals, all else seems virtually the same. From what I've read, both proposals 

are equally protective of both humans and the environment, so why would the EPA want to wait another 

three to implement virtually the same plan, not to mention, risk ruining the very thing you seek to 

accomplish, which is keeping more of these CCPs from the impoundments and landfills? 

The EPA has looked at CCPs in the past under both Democrat and Republican Congresses and presidents, 

and every time the EPA has returned with the verdict that there is no way that CCPs can be considered 

hazardous and they should stay exempt under the Bevill Amendment.

By creating stigma and liability under Subtitle C, you will not only kill the recycling of a beneficial 

material, but you will inadvertently increase greenhouse gas emissions, decrease landfill space, increase 
184

the mining of virgin construction materials, and increase energy use. 

I'm asking you again to make the smart decision and pick the new -- the right proposal based on the facts 

and not on the politics of the day. The right choice and the only choice is that of Subtitle D, nonhazardous.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0121-3

Organization1:

Commenter1:Bobby Raia

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Under both the Subtitle D and Subtitle C proposals, the EPA addresses the need to standardize and 

strengthen the engineering standards associated with landfills and the same as under the Subtitle and 

Subtitle D approach. The EPA actually saying in effect the disposal regulation of the proposed Subtitle D 

would take effect faster than the proposed Subtitle C. 

In closing, I strongly urge the EPA to regulate coal ash under the proposed Subtitle D, non- hazardous 

approach. Coal ash is non-hazardous, as stated by the EPA and recently concluded by the Tennessee 

Department of Health in their final assessment for coal ash release for the Kingston Fossil Plant. I 

wouldn't be standing here today if I didn't believe the same. 

This approach protects the environment and human health with the standard for landfill and disposal, yet 

it reinforces the values and objectives of recycling, not to mention the preservation of many jobs 

associated with the coal ash recycling industry, including mine. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0128-3

Organization1:

Commenter1:Brandon Emmick

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

The benefits of Subtitle D approach far exceed the negative impacts of a Subtitle C approach, especially 

when the protective features are similar under both. The recycling of coal ash has many environmental 

benefits that should be promoted by EPA. If beneficial uses are no longer available, it will force power 

plants to landfill all material and lead to the pollution of more natural resources, increases in greenhouses 

-- greenhouse gases, and ultimately increase costs to my electric bill. 

As someone working to provide for my wife and baby, the last thing I need is for another bill to increase 

because of an illogical regulation. The EPA should endorse prudent coal ash disposal regulations based on

good engineering science. The regulations should be developed without characterizing coal ash as 

hazardous waste and risking the destruction of the best recycling program in the U.S. I ask the EPA to 

consider many families that depend on the recycling industry that would be negatively impacted by the 

Subtitle C ruling

Response: The Agency acknowledges and appreciates the comment. 
185

Comment Number: TRANS-LVL-0132-1

Organization1:

Commenter1:Steven Hudgins

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

I'm a member of Beechland Baptist Church located in Louisville, Kentucky. In 1949, Beechland built a 

new sanctuary. Senior members talked about the construction and ordering coal ash to be used in the 

construction of the building for construction fill. This was ordered from the local power plant. That 

building still today serves the community very well. 

In recent years, sanitary sewers have been installed in southwest Jefferson County, Kentucky. Residents 

of this working class community were required to connect at considerable cost to individual families. 

During the construction phase of this project, coal ash was used as aggregate in the project to help reduce 

the cost. The use of coal ash also prevented the need to mine materials for this project, reducing the use of 

fossil fuels for the mining process. 

The beneficial uses of coal ash in current day applications ranged from construction fill, ready- mixed 

concrete, lightweight concrete as a filler in plastic products, blasting grit, roofing shingles, and even in 

household products as kitchen countertops which qualify for leed certification points. High-profile 

projects such as Federal Bureau of Reclamation dams and the I-35 W bridge project have also used coal 

ash in the concrete in these projects. 

Environmentally, the public benefits from the reduction in Greenhouse gases by using coal ash in these 

applications is a benefit to the community. On a matter of declaring coal ash a hazardous material, I 

would like to reference a study conducted by EPA in 1988 entitled "Waste from Combustion of Coal 

Electric Utility Power Plants." Findings of this study conclude that coal combustion projects should not 

be classified as hazardous waste. This was, again, in EPA reports in 93, '99, 2000, all the same 

conclusions. Here we are again today examining the same issue. 

I would like to strongly, and I repeat strongly, urge you to not consider coal combustion products as a 

hazardous waste. Please consider them as a Subtitle D material and regulate them accordingly

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0139-3

Organization1:Kentucky Chamber of Commerce

Commenter1:Chad Harpole

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

In closing, the Chamber urges U.S. EPA to develop federal non-hazardous waste regulation for coal ash 

under Subtitle D of RCRA. Such an approach will allow U.S. EPA to work with states implementing 

regulations that are fully protective of human health and the environment without negatively impacting 

the coal ash beneficial use and causing an increase in energy prices at a time when the country can least 

afford it.

Response: The Agency acknowledges and appreciates the comment. 
186

Comment Number: TRANS-LVL-0142-1

Organization1:Charah

Commenter1:Danny Gray

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Our company is very active in recycling the CCRs, and we're very concerned that the correct regulatory 

approach be selected without damaging the recycling industry. We're proud of the green jobs that our 

industry has created, and we're thankful for the -- that our company has been able to create green jobs 

right here in Kentucky. 

The coal ash beneficial use business is one of the most successful recycling stories in the United States. 

CCP recycling provides long-term benefits for the environment and improved quality for construction 

materials. These are facts well-demonstrated over decades of use and scientific study. 

Our company's support of EP -- our company does support EPA's effort to strength the CCR disposal 

regulations. Since the protective features of both proposals are similar, we support Subtitle D. A Subtitle 

D approach with state program management has been successful for household solid waste landfills, and 

we believe that national standards with state program management will also be successful for CCR. 

We also know that Subtitle D is -- is the only choice that will avoid damage to the recycling industry. 

Maintaining the success of the recycling industry is in the best interest of all parties. Recycling coal 

combustion residue is good for the environment, good for the construction materials industry

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0142-3

Organization1:Charah

Commenter1:Danny Gray

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

In summary, we support EPA's effort to standardize and strengthen the regulation of CCRs under a 

Subtitle D approach. As the recently-released government health assessment for Kingston reaffirms, the 

characteristics of coal ash do not warrant a Subtitle C label. States have already demonstrated they can 

effectively administer the type of controls that will evolve under Subtitle D program. Taking the risk of 

damage to the CCP beneficial use industry from a Subtitle C approach is not warranted. 

The protective measures are similar under both approaches. A Subtitle D approach is the only sensible 

choice

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0175-2

Organization1:Kentucky Association of Manufacturers

Commenter1:Greg Higdon

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:
187

Kam opposes the regulation of coal combustion residuals under the Resource Conservation Recovery Act 

Subtitle C, hazardous waste rules. Several states, including Kentucky, already regulate coal combustion 

residuals in conjunction with solid waste programs dealing with non- hazardous waste. KAM believes 

that if it is necessary to develop a national approach to the regulation of coal combustion residuals, U.S. 

EPA should do so under the auspices of RCRA Subtitle D. Such an approach would allow EPA to work 

with states in implementing regulations that are fully protective of human health and the environment 

without negatively impacting coal ash beneficial use and causing an increase in energy prices at a time 

when the economy can least afford it. 

The regulation of coal combustion residuals under RCRA's hazardous waste rules would be regulatory 

overkill and not -- and would not be economically practical. Coal combustion residuals are industrial solid 

waste that are often beneficially reused. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0001-1

Organization1:Utility Solid Waste Activities Group

Commenter1:Jim Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

This is the fourth public hearing that I've attended, and I have listened carefully to the testimony of citizen 

activists. 

I've heard them call for groundwater monitoring of ash disposal sites -- and we agree. For groundwater 

protection standards -- we agree; that corrective measures be taken to address environmental impacts --

we agree. 

For liners for disposal units -- in fact, the overwhelming majority of the new facilities have monitors 

because of state regulations. For dam safety and inspection standards -- we agree; and generally for 

protection of human of the environment -- and we agree. In fact, all of these protections can be obtained 

through the implementation of Subtitle D regulations. Most importantly, Subtitle D regulations will be 

implemented sooner, many years sooner than Subtitle C standards. D regulations will not have a 

devastating impact on beneficial use. They will not have an unnecessarily burdensome impact on power 

plant operations, raising energy costs, and threatening an already tenuous jobs recovery; and they will 

build on existing state regulations, strengthening those regulatory programs, rather than requiring 

implementation of an entirely new regulatory program, duplicating existing regulations and imposing 

significant burdens on already strained state governmental resources. 

Subtitle D regulation of coal ash will be protective of human health and the environment, can be 

implemented sooner and will not create the adverse impacts that hazardous waste regulations will have. 

USWAG supports federally-enforceable Subtitle D controls for coal ash, including the integrity standards, 

to help prevent future coal ash releases like that which occurred at TVA. And we believe federally 

enforceable Subtitle D regulations for coal ash can be developed under the same authorities EPA used 

when they developed federally enforceable Subtitle D rules for municipal solid waste landfills. 

Given the above, and the fact that even EPA has recognized that the inflexible nature of the federal 

hazardous waste program would result in excess costs and unduly burdensome regulations for coal ash, 

the answer is clear that Subtitle C regulation of coal ash, the most burdensome and costly option available 

to EPA under federal law, simply is not warranted

Response: The Agency acknowledges and appreciates the comment. 
188

Comment Number: TRANS-PIT-0009-3

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Citizens for Recycling First supports enactment of tougher coal ash disposal regulations that will protect 

human health and the environment. A Subtitle D approach can accomplish this goal without unnecessarily 

destroying coal ash recycling. We urge you to remember that the Resource Conservation and Recovery 

Act intended to put conservation and recovery first. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0010-1

Organization1:Electric Power Generation Association

Commenter1:Doug Biden

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

On four prior occasions, the EPA concluded that CCRs should not be regulated as hazardous wastes. 

EPGA agrees with EPA's prior conclusions and supports the development of federal regulations for CCRs 

under RCRA's Subtitle D non-hazardous waste program. Such an approach should allow for EPA to work 

with the states in implementing regulations that are fully protective of human health and the environment 

without negatively impacting beneficial use and recycling of these materials or causing plant closures or 

unnecessary increases in electricity costs. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0013-1

Organization1:Association of Canadian Industries Recycling Coal Ash

Commenter1:Anne Weir

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

Subtitle D and K options stipulate responsible management practices, promote responsible use of Ash, 

respond to market demand and enable the continuation of cross border trade. Subtitle C endangers crossborder trade and its substantial environmental and economic benefit to both our nations. I implore you to 

reject Subtitle C

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0021-1

Organization1:U.S. Senator Bob Casey

Commenter1:Jackie Erickson

Commenter Type: Federal Elected Official
189

Classification: Substantive

Comment Excerpt Text:

It is imperative that EPA move forward with a regulation that protects the environment and protects the 

health and welfare of the residents of Pennsylvania. 

It is also critical that such a regulation does not place unnecessary burdens on the continued use of coal. I 

believe both of these goals can be accomplished. More than half of Pennsylvania's electricity comes from 

coal. Our electric utilities burn coal in plants equipped with state-of-the-art pollution control equipment 

such as electrostatic precipitators and flue gas scrubbers that capture particulate matter and sulfur dioxide 

emissions. 

The solid materials captured in these devices, along with bottom ash and boiler slag, make up of the 

majority of coal combustion byproducts, called CCBs, that are the subject of today's hearing. 

Pennsylvania's electric utilities produced around 11 million tons of CCBs each year. Of this 11 million 

tons, nearly 65 percent is used for a myriad of beneficial applications. This beneficial reuse includes the 

remediation of acid drainage from coal mines, the production of concrete, and the manufacture of 

building materials such as roof shingles and wallboard. In fact, just a few miles down the Ohio River 

from Pittsburgh, First Energy's Bruce Mansfield power plants supplies more than 400,000 tons a year of 

synthetic gypsum from its scrubbers to National Gypsum to produce wallboard. This represents one of the 

largest recycling operation in the United States. 

The beneficial use of CCBs means that we avoid the need to dispose over 700,000 tons of this materials 

each year in landfills and impoundments in the state. And for each ton of fly ash used to replace Portland 

cement in concrete the release of nearly one ton of the greenhouse gas carbon dioxide is avoided. 

However, the many benefits of reusing these materials would be severely challenged by one of the 

regulatory options under consideration by EPA. 

This option would regulate CCBs as hazardous wastes under Subtitle C of the Resources Conservation 

and Recovery Act if placed in an impoundment or landfill. The other option would continue to regulate 

CCBs as nonhazardous under Subtitle D of RCRA. 

I believe that the second option is the correct approach for EPA to take based on the scientific data the 

agency has collected. EPA has evaluated the reuse and disposal of CCBs on a number of occasions over 

the past several decades. 

Each time the agency has made a regulatory determination that these materials are not hazardous wastes 

as defined by RCRA. I believe this is the correct conclusion and that CCBs should continue to be 

regulated as nonhazardous under Subtitle D of RCRA

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0029-5

Organization1:Ebensburg Power Company

Commenter1:Gary Anderson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

The regulation of ash as hazardous under ARIPPA Subtitle D would protect human health and the 

environment

Response: The Agency acknowledges and appreciates the comment. 
190

Comment Number: TRANS-PIT-0033-1

Organization1:Boral Material Technologies

Commenter1:Terry Peterson

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.1.1

Comment Excerpt Text:

I would like to open my statement by commending the EPA for supporting and maintaining a Subtitle D 

classification for CCRs since the enactment of the Bevill Amendment in 1980. That support has 

underpinned the establishment and development of arguably the most successful recycling program in 

U.S. History. BMTI alone, with this support, has been able to place in excess of 53 million tons of coal 

combustion products into beneficial uses over the past 20 years. Obviously, that's 53 million tons of 

avoided landfill space, but just as significantly, represents a corresponding offset of 53 million tons of 

CO2 emissions that would have resulted if natural materials had been used in lieu of coal combustion 

products. The further benefit of EPA's support of Subtitle D is reflected in the BMTI's R&D program. 

Over the past 10 years, we have invested over $30 million developing three new coal combustion 

products applications outside of ready-mix and cement. Just as importantly, we developed three 

beneficiation processes that enable coal combustion products to meet performance specifications if those 

products are compromised when power plant modifications necessary to reduce NOx, SOx and mercury 

are installed. These investments would not have occurred if CCRs were classified under Subtitle C.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0034-2

Organization1:International Brotherhood of Electrical Workers

Commenter1:Michael Welsh

Commenter Type: Union

Classification: Substantive

Comment Excerpt Text:

We agree and support the EPA's second proposal that would regulate coal ash under Subtitle D, which is 

the section for nonhazardous waste. In prior EPA regulatory determinations the EPA determined that coal 

ash did not need regulation as a hazardous waste and in general does not pose a human health risk. It also 

found that if it did treat coal ash as a hazardous material, there may be counterproductive consequences. 

Even if the EPA classifies fly ash as nonhazardous, EPA would still establish national criteria to ensure 

sage disposal of coal ash and other Coal Combustion Products. Facilities handling coal ash would be 

subject to location standards and composite liner requirements. Existing ash ponds without liners would 

have to retrofit within five years or close and groundwater would be monitored for contaminants. Postclosure care requirements would be issued to address the long-term stability of ash ponds.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0045-2

Organization1:Geosynthetic Materials Association

Commenter1:Andrew Aho

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:
191

A brief word on the hazardous/non-hazardous question. Coal ash lacks the tradition characteristics of the 

tradition hazardous materials; radioactivity, or the presence of infectious medical waste. In our opinion of 

our trade organization, coal ash can be properly stored using Subtitle D regulations, a nonhazardous solid 

waste designation with composite liner systems

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0048-1

Organization1:Separation Technologies

Commenter1:Tom Cerullo

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3 10.4.6

Comment Excerpt Text:

Subtitle C regulations, even with the exemption for beneficial use, will create two conditions that will 

have a deep, negative impact on the recycling industry. 

One, many power companies will not want to put ash into beneficial uses because they cannot and will 

not tolerate the liability of having ash make a left turn out of their property and be designated a hazardous 

material, while that same hazardous material is making a right turn out of their property is being placed in 

concrete sidewalks, home basements and driveways. The risk at this point is too close for comfort, and 

power companies will take the safe route and dispose of all their ash. 

Two, users of concrete with recycled fly ash will be unwilling to draw a distinction between the 

nonhazardous material that they are receiving and the exact same material that is going to the hazardous 

landfill. In the consumer's mind, it's all hazardous and they will not buy the fly ash product. 

My company works with power companies every day. We sell recycled fly ash to concrete producers 

every day. We know this industry. We want to grow our business, but Subtitle C regulations as proposed 

by EPA will create a stigma, profoundly damage the use of fly ash in concrete and drive power companies 

away from recycling. I urge you to reject Subtitle C and give every consideration to Subtitle D.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0051-2

Organization1:Separation Technologies

Commenter1:Brian Dulaney

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

I encourage the EPA to continue its efforts in monitoring the safe disposal of CCBs and to follow its own 

published endorsements of beneficial uses of CCBs. By staying consistent with these views, I know that 

you will make the logical decision and support Subtitle D.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0054-2

Organization1:Pennsylvania Coal Association

Commenter1:Josie Gaskey

Commenter Type: Trade Association
192

Classification: Substantive

Comment Excerpt Text:

We believe the best management option is under Subtitle D. Pennsylvania has some of the strictest and 

most effective regulations in the country for mining, management and disposal of CCRs and has an 

effective regulatory infrastructure in place to ensure the safe management if these materials. We support 

the regulation of CCRs that allows for continued beneficial uses for construction, manufacturing and 

other purposes, as well as integration with the current Pennsylvania regulatory program. 

The regulation of CCRs as nonhazardous waste is supported by past progressive improvements in PA 

DEP's management of coal ash and recommendations from state regulatory and environmental officials 

including the Pennsylvania Public Utility Commission. While we recognize that regulating CCRs as a 

nonhazardous waste will impose significant costs on the power industry, we are concerned that regulating 

CCRs as a hazardous waste will lead to significantly higher cost increases and subsequent increased 

electricity prices. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0069-4

Organization1:FirstEnergy

Commenter1:Ray Evans

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

In closing, let me reiterate that a non-hazardous regulatory framework will improve environmental 

conditions across the country while preserving the jobs and economic growth related to the beneficial use 

of ash. In contrast, regulation of CCRs as hazardous waste would lead to higher costs and divert more of 

this material to landfills, without achieving any meaningful environmental improvement.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0072-1

Organization1:Harsco Minerals

Commenter1:Ray Arigoni

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

I am in support of regulating boiler slag under RCRA Subtitle D. 

Harsco takes employee health and safety very seriously; it has been 7 years since a lost workday case. We 

have participated in industrial hygiene surveys. We conduct regular safety meetings, and safety is an 

important part of how we do business every day. I am not aware of any health issues from any of my 

employees associated with exposure to boiler slag at my facility. 

Environmental permit compliance is also an important part of the way we conduct our business. In our 

many years of operation I do not know of any environmental issues caused by the boiler slag processed by 

my facility. 

Some facts that demonstrate that there is not reasonable basis for subjecting boiler slag to regulation 

under RCRA Subtitle C are as follows: 

When extremely hot, molten coal ash is quenched with cold water, the coal ash is vitrified and becomes 
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the solid, glassy solid known as boiler slag. 

Because boiler slag is vitrified, it is a very durable and environmentally stable material that effectively 

immobilizes its chemical constituents by transforming any metals into inert metal silicates. 

Historically, boiler slag has always passed the TCLP testing and has never exhibited any hazardous waste 

characteristics. 

Boiler slag is not commonly stored in surface impoundments. I do not store any of my boiler slag 

products, raw or processed, in any surface impoundments. 

Regulating boiler slag destined for disposal as a special waste under Subtitle C would unfairly stigmatize 

beneficially reused boiler slag that my employees have been processing for many years. My customers 

will be confused and concerned about purchasing products that are seen to be essentially the same as a 

Subtitle C waste, even with a special waste designation. 

I recognize the need for proper and environmentally sound standards for regulating the 2 percent of boiler 

slag that is discarded, rather than beneficially reused, however, I feel the associated stigma that will be 

associated with Subtitle C will adversely impact my business

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0081-2

Organization1:Sunbury Generation

Commenter1:Teresa Copenhaver

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Excerpt Text:

The regulation of coal ash as non-hazardous waste under RCRA Subtitle D will ensure protection of 

human health and the environment without unnecessarily stigmatizing coal ash that has a safe beneficial 

use as a preferred alternative to disposal. This approach will ensure that ash is safely managed while 

continuing to promote and expand its beneficial use.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0085-4

Organization1:Separation Technologies

Commenter1:Jim Bittner

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Please select the Subtitle D non-hazardous approach. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0094-1

Organization1:International Brotherhood of Electrical Workers

Commenter1:Michael Sowko

Commenter Type: Union

Classification: Substantive

Comment Excerpt Text:
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My members want it known that they are dedicated to performing their duties of operating and 

maintaining these plants in the most safe and professional manner to provide a product that is reliable and 

cost efficient while maintaining environmental compliance in all aspects of production. We devote our 

time, talents and energies toward family and civic obligations. We live in the Greater Pittsburgh, MonValley and Allegheny Valley neighborhoods. We are raising families and contributing to our local tax 

base. We, most of all, understand what it means to carry the responsibility of being environmental 

stewards for the benefit of the future of our children and grandchildren. That's why I come before you 

tonight with support of my membership to go on record supporting regulation of coal combustion 

residuals under Subtitle D of Resource Conservation and Recovery Act. 

This proposal would permit the beneficial use of coal ash without the stigma associated with classifying 

CCRs under the same regulations that regulate hazardous waste. We support the need to establish safety 

requirements to address structural integrity at CCR sites in order to prevent another incident like the one 

at the Tennessee Valley Authority's Kingston Fossil Plant in Tennessee. In addition, the IBEW fully 

supports the other requirements under Subtitle D that are protective of human health and the environment. 

Continued use of CCRs for beneficial use projects provides sales revenues, avoids landfill disposal costs 

and, very importantly, maximizes existing landfill capacity. Being able to pursue beneficial use projects 

and marketing of CCRs within the intent of the Subtitle D regulations will help to maintain the four to one 

ratio cost advantage that exists in generating with coal verses using gas and oil. The added costs 

associated with a reclassification of CCRs under Subtitle C would severely impact many plants 

throughout the industry resulting in premature plant closures with more individuals being added to the 

unemployment numbers at a time when the country can ill afford any more.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0102-2

Organization1:Pennsylvania Department of Environmental Protection

Commenter1:Mike Forbeck

Commenter Type: State Government

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

Pennsylvania does not believe that additional regulations for the management of coal ash beyond RCRA 

Subtitle D are warranted. Classifying coal combustion residues under RCRA Subtitle C would create 

unnecessary burdens to current management practices without producing any greater degree of 

environmental or public health protection. The Commonwealth opposes the rulemaking for Subtitle C, 

and is in support of a Subtitle D proposal with implementation authorization continuing with the states.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0104-2

Organization1:Sphere One

Commenter1:Mark Bonne

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3 10.5.1.6

Comment Excerpt Text:

I support the EPA's need to protect the American public from heavy metal contamination, which were 

improperly stored. The heavy metals found in Cenospheres are fused into aluminum silicate shell offer no 

health risk. These materials are then encapsulated in cement or a polymeric matrix, which makes them 
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biologically insoluble. If the EPA designates CCRs as hazardous waste when being disposed of, the 

American public will consider it hazardous materials in all cases and won't let their use in their homes. 

Subtitle D regulations with strong enforcement will allow American industries find suitable extended 

service life applications for fly ash products. This is a much better option than landfilling them under 

Subtitle C. 

It isn't economically advantageous to landfill all these products and it's just transfers the problem from the

power plant to the landfill. I agree that the proposed legislation creates an incentive coal power to find 

applications for fly ash, but unfortunately, it make the materials unusable by private industry. If the EPA's 

intent is to assure that these materials be rendered environmentally inert, then Subtitle D is the best 

regulation. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0110-2

Organization1:Consol Energy

Commenter1:Steven Winberg

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

Our second concern, voiced by numerous others, relates to EPA's consideration that CCRs be regulated as 

a special waste under Subtitle C of the Resource Conservation and Recovery Act. EPA has reviewed this 

issue in 1993 and again in 2000, and EPA should continue to follow its final 2000 regulatory 

determination that Subtitle D of RCRA could be fully protective of human health and the environment.

Response: The Agency acknowledges and appreciates the comment. 

Section 4.1.2 - Against Subtitle D proposal

Total Number of Submissions: 67

Total Number of Comments: 80 (Note the comments identified in this section were from the public 

hearings. Other comments in this section as identified by the number 80 were written responses to the 

proposed rule and did not originate from the public hearings.)

Comment Number: TRANS-ARL-0093-2

Organization1:Greenpeace

Commenter1:Brian Johnson

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

That's why I urge EPA to regulate coal ash under Subtitle C of the Resource Conservation and Recovery 

Act, giving coal ash the special waste designation it deserves and putting in place requirements that will 

help keep people like myself out of harm's way. 

Subtitle C is backed by the EPA's own science, which shows that some coal ashes leach high levels of 

heavy metals. At the same time, Subtitle C will incentivize ash recycling by increasing disposal costs. 

Subtitle D, on the other hand, is not an acceptable plan. It is amazing to me that the EPA would even 

consider Subtitle D. Subtitle D actually treats coal ash waste as if it were nonhazardous and allows 

industry to slip under weak regulations. Moreover, the EPA itself acknowledges that Subtitle D would 

allow many coal ash dump and waste ponds to go on uncleaned. 
196

With Subtitle D in place can we really expect that the disaster that struck Tennessee in 2008 will not 

happen again? What happened in Tennessee is not limited to that region, but represents an issue of 

national scale. Coal ash dumps exist in nearly every state, including Virginia and Maryland, and coal ash 

is produced at Mirant's Potomac River Generating Station just 10 minutes down the road from my town, 

Alexandria. 

Please, I urge you, regulate coal ash under Subtitle C and help prevent disasters like what happened in 

Tennessee from happening again.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0110-2

Organization1:EarthJustice

Commenter1:Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Albert Einstein once said the definition of insanity is doing the same thing over and over again expecting 

different results. Issuing guidelines under Subtitle D or, worse, under Subtitle D prime, and expecting a 

change in the status quo of state mismanagement is certainly madness. Despite the passage of over three 

decades since Congress has enacted RCRA, many states still by law allow gross mismanagement of coal 

ash, and most states routinely fail to enforce existing Subtitle D guidelines that apply to ash. 

Consequently, EPA must ask if states after 36 years have neither established their own reasonable

requirements for ash and not enforced existing federal guidelines, why would additional unenforceable 

guidelines change the status quo? 

We respectfully ask EPA to correct and not repeat the mistakes of the past. Let sound science and law, not 

outmoded data and conjecture, guide your decision. We ask you to act wisely and without delay to 

protect, at long last, our health, our drinking water, and our environment from further harm

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0004-1

Organization1:Sierra Club Beyond Coal Campaign

Commenter1:Verena Owen

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

There are two options on the table. It is clear that only the coal industry would benefit from the basically 

status quo regulations under Option D they are championing. 

That option requires none of the abovementioned safeguards. Industry will claim that ensuring such 

proper safeguards under the protective Subtitle C option of the proposed rule is a costly proposal. But, 

folks, that cost is already being paid--except it is being paid by the wrong party. It is paid by the party, the 

people affected by coal ash in our neighborhoods. 

Coal is a dirty business through its entire life cycle, from mining to burning to disposal. The coal has been 

shielded for years, for decades actually from the true cost of coal. It is time that they are being held 

accountable, and that means that there is an accounts payable column in their coal and for coal ash 

disposal in their books. 
197

The rule offers two options -- can I finish? Thanks. EPA has two options for the coal ash rule, and in this 

case D is not a passing grade and C is the top of the class.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0110-3

Organization1:

Commenter1:Susan Michetti

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

And the Wisconsin DNR is a politically driven agency. By definition, limited legal liability of coal in 

Wisconsin indicates that serious hazards and risks do exist for the public. And so, I just don't even believe 

in all of the reasons that they're giving for adopting Subtitle D. 

Coal ash concentrates the arsenic, cadmium and mercury. It is not cheap. The costs are transferred to the 

public through environmental pollution, adverse health effects, innocent victims are harmed, absorbed 

coals, external and polluted cost of doing business. Subtitle D option is unacceptable. It further shifts the 

unfair cost of externalities of doing business to the victims when it should be being paid honestly as a cost 

of doing business

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0003-2

Organization1:

Commenter1:Dennis Lemly

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

The two regulatory options under consideration by EPA are very different with respect to selenium 

hazards. Subtitle D would essentially be business as usual since it does not eliminate surface 

impoundment disposal practices like those which led to the disasters at Belews lake and TVA-Kingston, 

and the D Prime alternative does not require liners, leachate collection and treatment. Option D is clearly 

not protective of fish and wildlife health.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0108-1

Organization1:Greenpeace

Commenter1:Robert Gardner

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1 4.1.4

Comment Excerpt Text:

A hazardous waste designation under Subtitle C of RCRA would ensure that coal ash dumps and waste 

ponds have all the protections currently required at waste landfills. Solid waste permitting -- permits, 
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liners, monitoring systems, and leachate collection system make sense, are readily available technologies, 

and can help prevent disproportionately poor communities from being at risk from high hazard dams and 

leaking dumps. 

Lax guidelines such as those that would be applied under the weaker Subtitle D regulations will fail to fix 

the problems as the EPA expects that approximately 50 percent of coal ash dumps and waste will not 

clean up under this plan. 

This is exacerbated even worse under the Subtitle D prime option which would not even apply to some of 

the worst, most dangerous dumps and waste ponds in the country. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0101-1

Organization1:

Commenter1:Mark Quarles

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

I've personally investigated approximately 40 coal combustion waste sites in 12 states within the last ten 

months. Based on my research of actual data and state files, I support the Subtitle C determination 

proposed by EPA. 

My work was recently published in three damage case reports coauthored by the Environmental Integrity 

Project, Sierra Club, Earth Justice, and other technical members and their staff. Subtitle C designation is 

needed because the approach proposed by Subtitle D has not worked. 

My research of those 40 sites where states had discretion on design and operational standards and 

groundwater and surface water indicates a failed policy. Of the approximately 40 sites that I've 

investigated, all but one had obvious evidence of groundwater contamination. Clear evidence of 

contamination exists at these sites regardless of the sites being lined or wet -- lined or not, wet or dry, and 

even composite lined dry landfills. 

The industry argues that no harm exists, and that contaminants are not mobile. My experience is there is 

no scientific basis for that conclusion. They base the argument on their belief that no migration occurs. 

Well, they're able to make that argument because states rarely, if ever, require that off-site monitoring 

even be performed even when severe contamination exists at the property line. Industry solution is to 

simply buy the property instead of initiating corrective actions. 

The industry also argues that contaminants are not toxic. My experience is that cannot be further from the 

truth. Coal combustion waste in recycled byproducts contain heavy metals, some of which are known 

carcinogens. 

They make the argument of no toxicity because states oftentimes do not require monitoring programs to 

even include metals. In fact, monitoring programs in the 1980s and '90s were even more stringent than 

they are today, including metals that don't exist in many sites today. Instead, they require secondary 

standards with no human toxicity standards to make the claim of no toxicity. 

The industry argues that the waste is inert. It couldn't be further from the truth. They base it on laboratory 

methods that the EPA's recognized since 2003 does not work. 

In summary, I support the Subtitle C designation because the risks of waste require that designation. 

State-delegated programs have been unsuccessful in regulating coal waste and beneficial reuse. We need 

uniform standards that states must meet or exceed. 

We need closer existing pilements and landfills that are not compose lined within two years. All disposal 
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facilities should be required to initiate groundwater and surface water monitoring, and also be subjected to 

rigorous design and corrective actions

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0152-1

Organization1:SOCM

Commenter1:Dave Hoch

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 11.3

Comment Excerpt Text:

Now is the time to regulate coal ash as the dangerously toxic hazardous and special waste that it is. The 

unconscionably lax D Prime designation being peddled by big coal and the almost equally poor D 

designation, neither of which require federally enforceable regulations, are both clearly insufficient 

standards by which to effectively regulate coal ash. 

A C designation may show bona fide desire to curb egregious coal industry abuses, but even that 

designation is too lax. It fails to require rapid closure of dangerous ash ponds, timely investigation of all 

toxic coal ash dumps, and immediate cleanup of all toxic coal ash sites. 

It is far past time, scientifically, legally, ecologically, and ethically for the EPA to promulgate and 

vigilantly enforce stringent coal ash regulations pursuant to adoption of the only standard that can provide 

for efficacious regulation, that standard being a C Prime or "Super C" 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0036-2

Organization1:

Commenter1:Rick Clewett

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

It's important that EPA adopt the Subtitle C proposal rather than Subtitle D or D Prime proposal in order 

to deal adequately with the health hazards currently created by coal combustion waste generated by 

electric utilities and independent power producers. 

Under Pre -- Proposal D Prime, "existing surface impoundments would not have to close or install 

composite liners but could continue to operate for their useful life," end quote. Given that EPA has found 

that coal combustion waste expose the public to various serious risk, it would be unconscionable to allow 

existing coal waste ponds to operate -- continue operating as they have been. 

Proposal D would not require, quotes, "permits nor could EPA enforce the requirements. Instead, states 

and citizens would en -- could enforce the requirements under RCRA citizen authority. The states could 

also enforce any state regulation under their independent state enforcement authority," quote. Leaving the 

burden of in -- initiating enforcement actions to state agencies and citizens would be an abrogation of 

EPA's duty to protect the environment and the public.

Response: The Agency acknowledges and appreciates the comment. 
200

Comment Number: TRANS-PIT-0003-2

Organization1:Mountain Watershed Association

Commenter1:Beverly Braverman

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

I urge you to accept C not D. A recently released report entitled Coal Ash, the Toxic Threat to our Health 

and Our Environment, states with certainty that casual disposal of coal ash as a benign substance has 

already had a frightening impact on human health and the environment. 

I'm appending it to my comments and I'm urging you to take the time to read them. 

The most frightening statement in this report is, quote, given the high toxicity of coal ash's constituents, 

the growing number of proven and potential damage cases and the prospect of more damage cases 

emerging as toxicants reaches peak concentration in the coming years. The magnitude of coal ash as a 

threat to human health is likely only beginning to emerge. 

It's time to accept reality. Coal ash must be regulated under Subtitle C, a special waste falling within the 

characterization of hazardous waste. 

Why should it be regulated as such? Why should it be regulated under Subtitle C and not D? Because it is 

hazardous to human and environmental health, to our water and to our air. If the first gentleman's 

assertions are all true, that they could do these things and are already doing a lot of them, why are we 

seeing such impact, such negative impacts to our human health? 

Without federal minimum standards, Pennsylvania has become a dumping ground for coal ash in the 

name of mine filling, beneficial use, and any other justification for improper and inexpensive handling 

thought out by the coal and energy industries and embraced by our agencies.

For years coal communities have been used as science projects. Without sound science and without the 

controls, would normally implement for a well thought out experiment using lab rats. We are not lab rats, 

and we want protection.

Response: The Agency acknowledges and appreciates the comment. 

Section 4.1.3 - Support Subtitle D Prime option

Total Number of Submissions: 202

Total Number of Comments: 299

Comment Number: TRANS-ARL-0003-2

Organization1:National Rural Electric Cooperative Association

Commenter1:James Stine

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Let me say up front that NRECA favors the development of federal regulations for CCRs, but under 

RCRA Subtitle D, nonhazardous waste program. We evaluated the alternatives and believe that the 

Subtitle D prime option is the best path forward. These rules will establish a federal floor that all CCR 

facilities must meet.

Response: The Agency acknowledges and appreciates the comment. 
201

Comment Number: TRANS-ARL-0005-2

Organization1:American Forest and Paper Association

Commenter1:Amy Schaffer

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

AF&PA strongly supports the decision reached by the Clinton Administration in 2000 that coal ash 

should be regulated under Subtitle D, the nonhazardous waste provisions of RCRA. We believe that much 

of the additional information developed by EPA subsequent to that determination does not support the 

need for applying the onerous hazardous waste regulations to coal combustion byproducts. Appropriate 

management standards and engineering design would have avoided the catastrophic failure of the TVA 

surface impoundment, which can be achieved through the nonhazardous waste requirements. 

Frankly, my members prefer the Subtitle D prime option which allows the grandfathering in of existing 

units that are not leaking. Many of the impoundments in landfills used by my members are monitored and 

do not show any signs of encroachment into the environment. We believe that those units should continue 

to be used without additional changes. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0058-5

Organization1:PPL Corporation

Commenter1:Craig Shamory

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

PPL strongly opposes federal Subtitle C regulation and instead requests that EPA regulate CCRs under 

the Subtitle D prime option including a modification that integrates with current state regulatory programs 

such as Pennsylvania's residual waste and dam safety regulations. This approach will create a reasonable 

and effective regulatory program that protects the environment, retains options for beneficial use and 

preserves jobs while not adversely impacting our economy.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0021-1

Organization1:Duke Energy

Commenter1:Richard Meiers

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Duke Energy supports the development of federal regulations for CCR under RCRA Subtitle D nonhazardous waste program. The question for Duke is not whether to regulate but how to regulate. Duke has 

evaluated the alternatives and determined the Subtitle D Prime option with appropriate adjustments is the 

best path forward. Unlike Subtitle C approach, Subtitle D Prime will enable EPA to establish an 

environmentally protective program without crippling CCR beneficial use and imposing unnecessary 

costs on power plants, threatening jobs, and increasing electricity costs

Response: The Agency acknowledges and appreciates the comment. 
202

Comment Number: TRANS-CHI-0023-1

Organization1:Ameren Corporation

Commenter1:Paul Pike

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Ameren favors the development of federal regulations for CCRs under the Subtitle D non-hazardous 

waste program and believes that actually the Subtitle D Prime is the best path forward. Regulating CCRs 

under this option will also allow for the sound science which the Agency states is one of its principles in 

its ultimate decision for coal ash disposal units. The other proposed regulatory options assume that all 

existing surface impoundments and landfills are causing damage; yet in the preamble, the Agency 

observes "that nearly all new CCR landfills and surface impoundments are constructed with liners." We 

agree that disposal units that are not fully protective must either be upgraded or closed; however, there are 

many CCR surface impoundments which are perfectly safe. There is no reason why these units should 

automatically be continued to be closed and shouldn't be allowed to remain operating provided they are 

still protecting the environment and the populace at large. 

Under the Subtitle D Prime option, EPA would issue federal regulations specifically designed for CCR 

disposal units. These regulations would be directly enforceable by the states and the public under RCRA's 

citizen suit provision and violators would be subject to significant civil penalties. EPA would also retain 

its imminent and substantial endangerment authority to take action against any CCR units that posed a 

risk to human health or the environment. However, there is currently no mechanism for the states to step 

in and directly administer these regulations. 

We also believe that the Agency needs a "State First" aspect so that where state regulatory programs meet 

or exceed the proposed standards, that these qualified state programs would be allowed to administer 

them within the existing requirements. Illinois and Missouri both have regulatory programs that meet or 

exceed many of the proposed requirements and should be allowed to continue to administer their program 

without the dual regulation of a federal program. Failure in establishing a single source for requirements 

would mean that the regulated community could have conflicting requirements imposed on it leading to 

potential noncompliance issues. 

Finally, I want to state our strong opposition to the Subtitle C option. Reviewing the eight Bevill study 

factors, there is simply no reason to pursue this approach when the Subtitle D Prime option offers the 

same degree of protection without the fear that results from regulating it under Subtitle C. Regulating 

CCRs under Subtitle D Prime is protective of human health and the environment, and surface 

impoundments status would be based on fact rather than a presumption.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0040-1

Organization1:Great River Energy

Commenter1:Richard Lancaster

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

GRE agrees with many other entities that any development of federal regulations for coal combustion 
203

residuals should be under RCRA Subtitle D non-hazardous waste rules. GRE supports the EPA Subtitle D 

Prime proposal

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0058-2

Organization1:Indianapolis Power & Light

Commenter1:Dana Meier

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

IPL favors the development of federal regulations under RCRA's Subtitle D non-hazardous waste 

program and specifically believes that D Prime will establish an environmentally protective program for 

disposal units without crippling beneficial use and imposing unnecessary regulatory cost and on power 

plants threatening jobs and increasing cost. And D Prime would include appropriate impoundment design, 

inspection and maintenance requirements with groundwater monitoring and performance standards that 

would allow the continued use of existing ponds that are environmentally protective while reducing the 

cost of converting from ponds to landfills.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0101-3

Organization1:Dynegy Midwest Generation

Commenter1:Jeff Ferry

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2 4.1.1

Comment Excerpt Text:

On the other hand, a Subtitle D or D Prime approach would create an environmentally protective program 

for coal ash disposal without destroying these beneficial reuse options or imposing unnecessary 

compliance cost upon power plant operators that will eventually appear as higher price for concrete, 

electricity, or other products. DMG opposes the Subtitle C option and agrees with others to support the 

Subtitle D or D Prime options that will provide environmental options without additional waste, increased 

cost, and the stigmas associated with hazardous ash.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0120-1

Organization1:Hoosier Energy Rural Electric Cooperative

Commenter1:Michalene Reilly

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Hoosier Energy supports development of federal regulations for CCRs under RCRA Subtitle D nonhazardous waste program and believes that the Subtitle D Prime provides substantial safety for human 

health and the environment. In fact, the standards for landfill design under the EPA proposals are 
204

essentially equal under the Subtitle D and Subtitle C options. Statements have been made that Subtitle 

D or D Prime would be akin to the design for a municipal solid waste landfill, and Hooser Energy concurs 

with that assessment. The fact is that municipal landfills are designed to ensure that waste of all types 

thrown in the trash by homeowners are protective. This includes conditionally exempt wastes, mercury 

thermometers, fluorescent light tubes, CFLs, lighting ballasts and batteries. In fact, the design of 

municipal landfills recognizes the disposal, with an adequate safety factor, of materials from households 

that would fail test for hazardous characteristics. However, this is not the case for CCRs as they do not 

exhibit the hazardous waste levels for the same constituents. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0124-3

Organization1:City Water, Light & Power, Springfield, IL

Commenter1:Christine Zeman

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Thank you for the opportunity to express why we oppose regulation of ash under Subtitle C and under 

Subtitle D of RCRA except potentially under Subtitle D Prime.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0131-1

Organization1:Iowa Utility Association

Commenter1:Mark Douglas

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

We are supportive of the development of federal regulations of CCR under a Subtitle D Prime nonhazardous waste rule.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0026-2

Organization1:Georgia Power

Commenter1:Chuck Huling

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

First, Georgia Power supports protection of the environment in safe management of CCBs. Georgia 

Power remains committed to the appropriate criteria to ensure dam safety and the integrity that the public 

can rely on. Georgia Power also supports the regulations of CCBs in a manner that establishes reasonable 

minimum standards while recognizing the variability of each site. EPA's proposed Subtitle D Prime 
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approach recognizes that existing CCB impoundments should be allowed to continue operating with State 

oversight.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0040-2

Organization1:Florida Electric Power Coordinating Group

Commenter1:Carl Eldred

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 11.2.5

Comment Excerpt Text:

Of the options presented in the proposed rule the FCG prefers the Subtitle D Prime option. In light of the 

unique factual and regulatory circumstances present in each state however, EPA should first obtain 

legislative authority to implement state approval processes, or at least at a minimum include in the 

Subtitle D options the ability for states to seek equivalency determinations. For many years Florida 

successfully implemented an approved Subtitle D program that differs from some of the requirements 

of part 258. The same legitimate reasons for Florida's approved alternatives, the parts 258 requirements 

will also apply to the proposed Subtitle D regulations for CCRs. However, as written, there is no process 

by which Florida can seek those alternatives. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0053-2

Organization1:North Carolina Electric Cooperatives

Commenter1:Patrick Buffkin

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

NCEMC supports the Federal regulation of CCRs and urges the EPA to adopt a rule that protects human 

health and the environment but that does not unduly burden the economy or threaten jobs and economic 

reliability. NCEMC favors the development of regulations of CCRs under RCRA Subtitle D nonhazardous waste program. We believe that the Subtitle D Prime option is the best one available. 

It should be noted that NCEMC is strongly opposed to the regulation of CCRs under the RCRA 

hazardous waste program, the so-called Subtitle C approach. Unlike the Subtitle C approach, D Prime will 

enable the EPA to establish an environmentally protective program without crippling the beneficial use of 

CCRs and imposing unnecessary costs on power plants that in turn increase electricity costs. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0062-1

Organization1:Progress Energy

Commenter1:Barbara Capola

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:
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Progress Energy supports the development of Federal regulations for CCRs under RCRA Subtitle D 

Prime. The development of Rules under this approach will establish a Federal standard for all CCR 

facilities to meet. Many states already have effective solid waste statutes and regulatory programs that 

will provide an additional layer of regulatory oversight for management reuse and disposal of CCRs.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0161-1

Organization1:Duke Energy

Commenter1:Allan Stowe

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Duke Energy has evaluated the alternatives and determined that the Subtitle D Prime option, with 

appropriate adjustments, is the best path forward. Unlike the Subtitle C approach, Subtitle D Prime will 

enable EPA to establish an environmentally protective program without crippling CCR beneficial reuse, 

threatening jobs, and increasing electricity costs

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0016-1

Organization1:American Electric Power

Commenter1:David Miller

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.5.1

Comment Excerpt Text:

AEP supports the development of federal regulations for CCRs under RCRA's Subtitle D non-hazardous 

waste program. AEP believes the Subtitle D prime option, if revised appropriately, would be the best path 

forward and establishes an environmentally protective program without destroying CCR beneficial use 

and imposing unnecessary regulatory cost on power plants, threatening jobs, and increasing electricity 

costs for our customers. 

The Subtitle D prime option is preferred because it would not require automatic closure of CCR service 

impoundments that are operating in a manner that is fully protective of human health and the 

environment. AEP agrees that disposal units that are not fully protective must either be upgraded or 

closed. However, there are many CCR service impoundments which are perfectly safe and protective of 

the environment. There is no reason why these units should not be allowed to continue operating.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0020-1

Organization1:

Commenter1:Tom Zorenda

Commenter Type: Private Citizen

Classification: Substantive
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Comment Excerpt Text:

And I believe that the Subtitle D option really addresses what the country needs from a standpoint of 

making sure these materials are safely stored, but not creating a hazardous stigma which will really undo 

much of the good that's been done in having these materials used usefully back in industry.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0022-1

Organization1:San Miguel Electric Cooperative

Commenter1:Mike Kezar

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

I'm the general manager of San Miguel Electric Cooperative, a rural electric cooperative generation 

facility located in south Texas. San Miguel generates power for the benefit of its member cooperatives 

who serve approximately 570,000 end user member owners in 114 Texas counties. The San Miguel 

facilities were constructed in the late 1970's during a time when public policy favored the use of coal for 

generating electricity. And San Miguel's members invested significant resources into the generating plant 

and related facilities, including the adjacent surface mine. 

As a not-for-profit cooperative, those member owners bear all of the costs of owning and operating the 

San Miguel facilities, including the costs associated with regulations such as the CCR rule currently 

proposed by the EPA. San Miguel is willing to support the development of federal regulations for CCRs 

under RCRA's Subtitle D non-hazardous waste program. Furthermore, we believe that the Subtitle D 

prime option is the best -- best pass forward. And the states should be allowed to take the lead in the 

implementation of the program.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0004-2

Organization1:MidAmerican Energy Holdings Company

Commenter1:Cathy Woolums

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

In conclusion, PacifiCorp believes that EPA should reject a one-size-fits-all approach to what we believe 

would be an overly restrictive regulatory scheme without consideration of site-specific risks and instead 

regulate CCR under RCRA Subtitle D prime. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0006-2

Organization1:Tri-State Generation and Transmission

Commenter1:Chris Gilbreath

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2
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Comment Excerpt Text:

It is our position that the monumental costs associated with regulating ash as a hazardous waste 

provides very little, if any, health protection to human health and the environment. There is simply no 

reason to pursue this approach when the Subtitle D prime option offers the same degree of protection 

without the attendant risks and administrative burdens of Subtitle C.

We have evaluated the alternatives and believe that the Subtitle D prime option is the best path 

forward. Unlike the C approach, D prime will establish a robust and environmentally protective program 

for coal ash disposal without negatively impacting coal ash beneficial use, imposing unnecessary 

regulatory costs, and threatening jobs and increasing electricity costs.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0022-1

Organization1:Intermountain Power Service Corporation

Commenter1:Jon Finlinson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

IPP favors the development of federal regulations for CCRs under RCRA's Subtitle D nonhazardous waste 

program. IPP shares EPA's objective of having a federal regulatory program that ensures the safe 

disposal of CCRs. The D prime option will meet this objective without crippling coal ash beneficial use 

and imposing unnecessary regulatory costs on power plants, threatening job and increasing electricity 

costs. 

Regulation of CCRs should be applied regionally and state by state to provide optimal benefit on a caseby-case, site-by-site basis. EPA should therefore consider a mechanism for the states to administer the 

regulations. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0049-1

Organization1:Arizona Public Service Company

Commenter1:Scott Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.5.1

Comment Excerpt Text:

Let me begin by stating that APS supports the development of federal regulations for CCRs under 

RCRA's Subtitle D nonhazardous waste program, and we believe that Subtitle D prime is the appropriate 

option. Not only will this approach create an environmentally protective program for coal ash disposal, it 

will do so without crippling beneficial use and imposing unnecessarily -- unnecessary regulatory costs. 

A concern we have about both Subtitle D and D prime options, however, is the lack of any mechanism for

states to step in and administer the regulations. Many states, including Arizona, have regulatory programs 

in place that meet or exceed the Subtitle D standards in EPA's proposal. 

So rather than throw the proverbial baby out with the bath water, APS encourages EPA to allow qualified 

state programs to administer federal Subtitle D rules. 
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Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0050-1

Organization1:Xcel Energy

Commenter1:Terry Coss

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

First, we strongly oppose regulation of coal ash disposal on RCRA C. This approach is unnecessary, and 

we believe EPA has seriously under- estimated the negative consequences. We support the more 

reasonable D prime option which, with certain modifications, would allow well-designed and welloperated surface impoundments to remain in use. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0059-1

Organization1:Kansas City Power & Light

Commenter1:Fred Gustin

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

I'm here today to express the support of KCP&L for the Subtitle D prime option and to express our strong 

opposition to any Subtitle C designation for coal ash. 

As we've seen from many years of testing CCPs, and as EPA determined both in 1993 and in 2000, a 

Subtitle C determination is clearly not warranted as long as these materials are managed properly. 

As you've seen, there's been a groundswell of bipartisan opposition to Subtitle C across the political 

regulatory spectrum. Why is this? 

We believe that it's because regulation under Subtitle C would impose significant but unnecessary costs 

on our customers of electricity and on the taxpayers. EPA has stated that a Subtitle D determination 

would provide the same protections to the environment as would a Subtitle C. 

A Subtitle D prime would require groundwater monitoring for ash ponds with compliance enforced 

through the states permitting frameworks. We do not agree that an across-the-board closure of all ponds is 

appropriate for those ponds that are performing in an environmentally satisfactory manner.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0093-2

Organization1:PPL Montana

Commenter1:Steve Christian

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

PPL Montana strongly opposes Subtitle C hazardous waste regulation and requests EPA to regulate CCRs 
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under Subtitle D prime option that integrates with current state regulatory programs. 

This will create a reasonable and effective regulatory program that protects the environment, retains 

options for beneficial use, allows companies like PPL Montana to provide hundreds of good-paying, 

family-sustaining jobs.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0099-1

Organization1:Colorado Department of Public Health and Environment

Commenter1:Joe Schieffelin

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

Thank you for the opportunity to share our perspectives on this issue.

Our program opposes regulation of coal combustion residuals under hazardous waste authorities. Our 

program supports continued regulation of coal combustion residuals under state solid waste authorities.

We would prefer no changes to the current regulator construct for coal combustion residuals, but the three 

-- but of the three options under consideration, we strongly prefer the RCRA Subtitle D prime option.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0024-1

Organization1:Haley & Aldrich

Commenter1:Chris Hardin

Commenter Type: Other Company

Classification: Substantive

Other Sections: 4.5.1

Comment Excerpt Text:

Haley & Aldrich supports development of federal regulations for CCRs. And that's defined as coal 

combustion residuals, or in many cases products, under RCRA Subtitle D, non-hazardous waste program. 

We agree with the EPA substantive standards in Subtitle D and Subtitle C are essentially the same. They 

both provide for safe management of coal ash through the use of liner systems, groundwater monitoring 

and corrective action. 

However, Subtitle D will provide a regulatory platform that would accomplish these goals without 

severely impacting CCR beneficial reuse, threatening jobs, and increasing electricity costs for customers 

by imposing unnecessary costs on the utility industry. 

We agree with the EPA that CCR units that are not fully protected must be updated, upgraded, or closed. 

However, CCR impoundments that can be demonstrated to be safe and protective of the environment 

should be allowed to continue operating. We believe that the Subtitle D prime option with appropriate 

adjustments is the best pass forward and will enable EPA to establish an environmentally-protective 

program that meets the objectives of EPA, namely enforceable standards of CCRs, that are protective of 

human health and the environment. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0055-1
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Organization1:American Electric Power

Commenter1:Matt Powell

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.5.1

Comment Excerpt Text:

AEP agrees with the views of the bipartisan group of 165 members of Congress, 45 U.S. Senators, 

majority of states, multiple federal agencies, municipal and local governments, CCR marketers, and 

beneficial users, and many other third parties which have maintained that regulating CCRs under RCRA's 

hazardous waste program is simply regulatory overkill. AEP supports regulation of CCR under RCRA's 

non-hazardous waste Subtitle D program, and specifically under the Subtitle D option. 

The difference between the Subtitle D proposal and D prime is that the latter will not require the closure 

of surface impoundments that are being operated with no significant adverse effect on human health 

and the environment. The closure of surface impoundments, and hence, the conversion of the 

generating units to dry handling, and construction of landfills is a major cost associated with the 

proposal, and minimizing this cost by allowing environmentally protective surface impoundments to 

continue to operate throughout their operating life would present the least cost impact to our 

customers. Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0092-1

Organization1:American Electric Power

Commenter1:Rick Hayek

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 6.1.1

Comment Excerpt Text:

Your responsibility is tremendous because of this freedom that we have to share opposing opinions, and 

I want to offer my perspective on the continued beneficial use of ash. 

I've been in the -- in the marketing end of ash and in the coal business for 32 years with American 

Electric Power. We recently had a downsizing, where we lost 20% of our workforce. And I've -- over the 

32 years, I've met many people that have worked their entire life with ash; people that have walked in it, 

bathed in it, ate it, drank it, because it was part of their job. Going around to these retirement parties 

over the past year, never once has anybody said, "Well, so and so died as a result of his exposure to ash 

or residuals." Maybe they died from smoking or something of that nature, but nothing has ever been 

brought to my attention that, "Hey, we need to re-look at this because it's a result of them and their 

work environment." 

As a marketer, it's my responsibility that before this ash goes out into the public, what we do is we give 

samples of all of these ashes, whether it's fly ash, bottom ash, boiler slag, gypsum, whatever -- and we 

sell millions and millions of tons of this stuff. We give a sample to them to take to a lab, and they test it. 

We have our own lab, and we test it. 

And never once have we had to come out and say, "We can't market this to you because a TCLP test, a 

heavy metal exceeds a -- a safe rating." We've always been within the right parameters. Many times our 

-- in our ash the heavy metals don't even become traceable. There's no trace of them. 

Therefore, we recommend a Subtitle D prime approach and the continued beneficial use. And if there's 

problems with engineering, which is the real cause of what happened at TVA was an engineering fault 

with the dam, address that. But my experience and my social responsibility as a marketer for ash, I can 
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sleep very good at night knowing that we're putting a safe product out into the market Response: The 

Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0125-2

Organization1:Dixie Electric Cooperative

Commenter1:Gary Harrison

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

We understand the need for the development of federal regulations that assure the safe disposal of CCRs, 

and we feel that the subtitle D prime option will meet this objective. On the other hand, we strongly 

oppose using the subtitle C approval. EPA can obtain a high level of protection for the environment and 

human health without resorting to the unnecessary and extreme measures of regulating CCRs under 

RCRA's hazardous-waste rules.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0005-3

Organization1:Indianapolis Power & Light

Commenter1:Dwayne Burke

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

But what I urge you to take a look at is state regulatory agencies. To my knowledge, 48 of 50 have 

suggested Subtitle D or D Prime as the way to go. The only two states that I'm aware of that have 

recommended Subtitle C are California, which has no coal, and I believe Iowa is the other state. 

We'll be submitting comments prior to the November deadline as it relates to our -- what we do support, 

which is Subtitle D Prime.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0021-3

Organization1:E.ON U.S.

Commenter1:John Voyles

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

We firmly believe that any federal regulation of CCRs should be established under the Subtitle D 

program. We specifically support the D Prime option that would allow continued operation of existing 

ash ponds that are operating in a manner ensuring appropriate protection of public health and the 

environment.
213

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0045-1

Organization1:Duke Energy

Commenter1:Debbie Nispel

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Duke Energy supports the development of federal regulations for CCRs under RCRA's Subtitle D nonhazardous waste program. The question for Duke is not whether to regulate, but how to regulate. Duke 

has evaluated the alternatives and determined that Subtitle D Prime option, with appropriate adjustments, 

is the best path forward. Unlike the Subtitle C approach, Subtitle D Prime will enable EPA to establish an 

environmentally protective program without crippling CCR beneficial use and imposing unnecessary 

costs on power plants, threatening jobs and increasing electricity costs

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0054-1

Organization1:American Electric Power

Commenter1:Dana Sheets

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.5.1

Comment Excerpt Text:

. AEP supports regulation of CCRs under RCRA's non-hazardous waste Subtitle D program, and 

specifically under the Subtitle D Prime option. The difference between Subtitle D and D Prime is that the 

latter will not require the closure of surface impoundments that are being operated with no significant 

adverse effect on human health and the environment. 

The closure of surface impoundments and, hence, conversion of the generating units to dry ash handling 

and construction of landfills is a major cost associated with the proposal. 

And minimizing this cost by allowing environmentally-protective surface impoundments to continue to 

operate throughout their operating life will present the least-cost impact to our customers. 

AEP does not support, nor does it think, that the science justifies, regulation of CCRs under the RCRA 

Subtitle C hazardous waste rules. The requirements for liners, groundwater monitoring, surface 

impoundment integrity, and corrective action are essentially the same under both Subtitle C and Subtitle 

D, thereby providing the same level of environmental protection. 

It appears that the major hurdle for EPA concerning regulation under Subtitle D as opposed to Subtitle C 

is a perceived lack of federal enforcement authority under Subtitle D. The EPA already has Subtitle D 

enforcement authority through the provisions of RCRA Section 4010 and 4005, just as it did relative to 

the Subtitle D rules for Municipal Solid Waste Landfills. 

Under this process, the states can be afforded the opportunity to operate the Subtitle D program either by

demonstrating that the state rules already are as stringent as federal Subtitle D rules or by adopting 

additional regulations that include the minimum federal standards. If state programs do not adopt the 

minimum federal standards, the US EPA could step in with direct enforcement authority. 

This is a win-win situation for all involved. The EPA has the Subtitle D enforcement authority that it 

wants, and the states will be afforded the opportunity to run the program. 
214

In addition, the stigma and liabilities associated with CCR reuse applications under the hazardous waste 

Subtitle C option that would, in effect, kill the ash-utilization industry, along with the many thousands of 

associated jobs, would be avoided. 

Finally, under Subtitle D, cost impacts to utility customers would be minimized while protecting human 

health and the environment.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0055-4

Organization1:Vectren Corporation

Commenter1:Angila Retherford

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.5.1

Comment Excerpt Text:

Vectren supports EPA's objective of having a federal regulatory program that ensures the safe disposal of 

CCRs. As a result, Vectren supports the Subtitle D Prime option with appropriate adjustments. Because of 

the three options presented by EPA, this is the option that best balances clean energy with affordability 

and reliability. 

We believe that this regulatory option will best accomplish the objective of ensuring that CCR disposal 

facilities will be appropriately monitored to ensure that they're operated in a safe and environmentallysound manner, and continue to fully support and incentivise the beneficial reuse of CCRs. But unlike the 

Subtitle C approach, the D Prime option would establish comprehensive regulations for coal-ash disposal 

without imposing unreasonable and unnecessary costs on electric rate payers. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0154-2

Organization1:E.ON U.S.

Commenter1:Mike Winkler

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

Any federal regulations should be adopted under the RCRA Subtitle D program rather than a Subtitle C 

hazardous waste program. 

Regulation under Subtitle C would be administratively burdensome, unnecessarily expensive and provide 

little environment benefit. Fundamental problems with the Subtitle C approach are evident from the fact 

that virtually every state and environmental agency in the nation opposes regulation of CCRs as 

hazardous waste. L -- LG&E and KU support the "D Prime" alternative that would allow continued 

operation of existing ash ponds that are operating in a manner insuring appropriate protection of public 

health and the environment.

Response: The Agency acknowledges and appreciates the comment. 
215

Comment Number: TRANS-PIT-0056-1

Organization1:Midwest Coal Ash Association

Commenter1:Gary Haney

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 4.5.1

Comment Excerpt Text:

We favor the development of federal regulations of coal ash under Subtitle D, and specifically believe 

that the Subtitle D Prime option is the best choice. Unlike Subtitle C, D Prime will establish an 

environmentally protective program for coal ash disposal units without crippling beneficial use and 

imposing unnecessary regulatory costs on power plants, threatening jobs and increasing electricity costs. 

The Prime D option will include impoundment design, inspection and maintenance requirements that 

should prevent any future TVA type failures.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0059-1

Organization1:American Electric Power

Commenter1:Steven Orenchuk

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2 4.5.1

Comment Excerpt Text:

It is my professional opinion that the US EPA's proposed regulation of CCRs under the RCRA Subtitle C 

hazardous waste rules is excessive and unwarranted. The correct approach for US EPA to take is to 

regulate CCRs under the Subtitle D Prime option. 

Regulation of CCRs under the RCRA Subtitle C hazardous waste rules is not worth the incremental 

environmental gain versus the extreme financial costs which will accompany this level of regulation. It is 

necessary that in any type of rulemaking, U.S. EPA is cognizant of the broad economic impacts which 

there will be in response to such an undertaking. Protection of human health and the environment from 

the disposal of CCRs regulated under the Subtitle D Prime option is more than acceptable considering the 

potential threat that these materials pose. In addition to providing the necessary protection of human 

health and the environment, the Subtitle D Prime option will bear the least cost on the end user of coalfired electric generation, i.e. customers like you and I. 

Since the promulgation of CCR regulations under the Subtitle D Prime option affords the necessary level 

of protection of human health and the environment without imposing the unnecessary costs associated 

with over regulation, how can U.S. EPA in good conscience propose a set of regulations as irresponsible 

as the Subtitle C hazardous waste regulations for managing CCR disposal? This type of action is illogical 

and represents the wasteful allocation of the American public's financial resources. 

Response: The Agency acknowledges and appreciates the comment. 
216

Comment Number: TRANS-PIT-0110-3

Organization1:Consol Energy

Commenter1:Steven Winberg

Commenter Type: Other Company

Classification: Substantive

Other Sections: 4.5

Comment Excerpt Text:

Our third concern is EPA's proposed Subtitle D regulations to require closure of existing impoundments 

or retrofitting of liners in existing impoundments as a condition of their continued use. Many existing 

impounds have significant remaining useful life, but already contains significant volumes of CCR that 

would make it environmentally and economically infeasible to remove the CCR to install a liner. EPA's 

proposed D Prime option would allow continued use of existing impoundments for the remainder of their 

useful lives. The D Prime option will enable a smoother transition to new facilities and reduce 

disturbances of green field areas.

Response: The Agency acknowledges and appreciates the comment. 

Section 4.1.4 - Against Subtitle D Prime option

Total Number of Submissions: 15

Total Number of Comments: 15

Comment Number: TRANS-DEN-0108-1

Organization1:Greenpeace

Commenter1:Robert Gardner

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1 4.1.2

Comment Excerpt Text:

A hazardous waste designation under Subtitle C of RCRA would ensure that coal ash dumps and waste 

ponds have all the protections currently required at waste landfills. Solid waste permitting -- permits, 

liners, monitoring systems, and leachate collection system make sense, are readily available 

technologies, and can help prevent disproportionately poor communities from being at risk from high 

hazard dams and leaking dumps. 

Lax guidelines such as those that would be applied under the weaker Subtitle D regulations will fail to fix 

the problems as the EPA expects that approximately 50 percent of coal ash dumps and waste will not 

clean up under this plan. 

This is exacerbated even worse under the Subtitle D prime option which would not even apply to some 

of the worst, most dangerous dumps and waste ponds in the country. 

Response: The Agency acknowledges and appreciates the comment. 

Section 4.2 - Implementation and Enforcement of Proposed Subtitle D Regulations (35211)

Total Number of Submissions: 4

Total Number of Comments: 5

Comment Number: TRANS-DEN-0050-3
217

Organization1:Xcel Energy

Commenter1:Terry Coss

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Our third concern is that EPA's proposal discounts the important role that many states play today. Our 

states are very active in our landfill and pond operations, with programs that include permits and 

operating plans, inspections, and requirements for closure. State engineers and geologists and 

hydrologists are in the best position to implement such programs. 

To avoid duplication, we urge EPA to allow states with effective programs to continue to administer 

them under Subtitle D. Federal efforts should focus on a few states that may need improvement.

Response: The Agency acknowledges and appreciates the comment. 

Section 4.2.1 - Citizen suits, including states acting as citizens and whether enforcement through 

citizen suits is adequate (35211)

Total Number of Submissions: 33

Total Number of Comments: 39

Comment Number: TRANS-ARL-0008-1

Organization1:

Commenter1:John Robertson

Commenter Type: Law Firm

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

The industries that are speaking to you to ask for regulation under Subtitle D are able to afford hundreds 

of attorneys. They are able to afford millions of dollars. The citizens in Giles County are able to afford 

me. Citizen suits are going to be very difficult under Subtitle D. They will be outgunned, they will be 

outmanned, and they will likely be done in by the war of attrition. 

We would ask for Subtitle C to cover coal combustion waste because, as Mr. McGrath had indicated, the 

way that the Cumberland Park Project is currently structured is not a beneficial use, and it's something 

that the EPA has recognized under any regulation would not be recognized as a beneficial use. 

Unfortunately, the patchwork of regulation between the states would have one state regulating the type of 

project that Giles County has as a hazardous waste dump and requiring monitoring, permitting, lining; 

whereas in our neck of the woods, you have an unlined site next to a source of drinking water for 

communities that live downriver. That's something that should not be permitted to occur. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0008-3

Organization1:

Commenter1:John Robertson

Commenter Type: Law Firm
218

Classification: Substantive

Comment Excerpt Text:

We believe that the only way that this problem can be controlled is by regulation under Subtitle C. It 

would be the only tool that citizens, like the citizens of Giles County, would be able to have as opposed to 

pooling their resources to hire one attorney as opposed to the industry that's able to afford an entire firm 

of attorneys. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0043-2

Organization1:

Commenter1:Aaron Turkewitz

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.1 4.2.4

Comment Excerpt Text:

Given this reality, it is clear to me that the EPA should and must adopt the strongest possible regulations 

to contain the toxins in coal ash. To begin with, coal ash should be regulated from cradle to grave. Many 

of the conditions in Subtitle D are inappropriate for dealing with hazardous waste. Both logic and history 

argue that it is unrealistic to expect an industry to police itself. 

Similarly, private citizen driven lawsuits, to expect private citizen driven lawsuits to be an effective 

counterbalance to industry power is unrealistic. While David and Goliath may be an appealing story, it's 

not a good model for ensuring the changes that are required to safeguard human and environmental 

health. For this reason, the regulations and the enforcement must come from the federal level. 

The current patchwork of state regulations are weak. Many states fail to require even basic safeguards 

such as adequate monitoring. State-based regulations and enforcement are also inappropriate because 

unless rules are changed, coal ash and coal ash polluted groundwater don't actually respect state 

boundaries. 

I want the environment in which I and my neighbors live to be cleaner and healthier. I want the 

environment that children inherit to be cleaner still. The EPA is the right agency to take the lead and I 

hope it will adopt provisions at least as strong and binding as those in Subtitle D with regard to coal ash. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0065-1

Organization1:Peoria Families Against Toxic Waste

Commenter1:Joyce Harant

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

We do support the regulation by Subtitle C of your options. I have three points that I hope I will have 

time to make. When I read in your website the description for Subtitle D option regarding enforcement, 

Subtitle D enforcement through citizen suits, states can act as citizens. I had a quite visceral and negative 

reaction that I will not share with you this afternoon. The thought that my government who is proposing 
219

this regulation because it knows that coal ash is not currently being stored in a manner that protects the 

public's health and safety, that you would even offer us an option that we should rely on citizen suits to 

protect us is ludicrous. 

I'd like to ask you, have any of you been involved in trying to promote environmental safety as part of a 

grassroots citizens group? By the way, have you documented just where these citizen activists are 

located? Do we live in every location that needs monitoring? Do these regulations give us any authority to 

investigate access to funds to monitor sites, any funds to fight these wealthy corporations in court? I did 

not see that in the regulations. 

If you ever had to face these wealthy corporations in public hearings and could not afford the professional 

testimony that you need, you would never suggest citizen enforcement. Have you ever had to fight a 

wealthy corporation in court without having government attorneys on your side? Have you ever worked 

with seven other people for six hours at 90 degrees at a ball game selling hotdogs just to make $300 to 

pay your attorney? 

I am currently a plaintiff in a lawsuit in the Third Appellate District in Illinois regarding Electric Arc 

Furnace Test. I can tell you that when our single, poorly paid but dedicated attorney faced the five 

attorneys supporting the hazardous waste company, you know it's not a fair fight. So, I repeat, do not rely 

on citizen suits for enforcement. 

The idea of citizen enforcement is like "don't ask don't tell." Don't ask don't tell the coal ash producing 

companies because if there doesn't happen to be a well educated, informed and financed citizen activist in 

the community, we surely know that the wealthy corporations won't tell about their pollution. 

I would also like to express caution in how the coal ash is determined to be able to be used in a so-called 

safe manner. In Peoria, we have one of the highest lead contamination of homes and lead poisoning in 

children. And we need to make sure that any so-called safe use has thorough testing and long-term testing 

so that this is not coming out in dust into the water after demolition of homes or however it is used. 

And lastly, I believe we must have universal rules throughout this country to control coal ash waste. If I 

live in a progressive state, it really doesn't matter because the state next door can be inadequate and I'm 

still at risk

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0110-1

Organization1:

Commenter1:Susan Michetti

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 4.2.4

Comment Excerpt Text:

Coal ash needs classification as a listed toxic substance to be regulated under RCRA Subtitle C with a 

comprehensive program with federally enforceable requirements as a minimum, not through citizen suits 

that require deep pockets and will bring bankruptcy to those citizens.

The coal industry outrageously brags they meet the standards while contaminating the drinking water in 

Wisconsin, so Caledonia has to have bottled water. Since voluntary industry self-regulation is beyond 

failed, industry corporations must be held financially accountable for all external cost including testing 

and cleanup, not paid by individual victims of these unfair, unethical externalities of their costs of doing 

business. 

Response: The Agency acknowledges and appreciates the comment. 
220

Comment Number: TRANS-CLT-0068-1

Organization1:Southern Alliance for Clean Energy

Commenter1:Jennifer Rennick

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

My name is Jennifer Rennick, and I am the federal policy director for a regional nonprofit organization 

called the Southern Alliance for Clean Energy. I am also the mother of two young children, and I am a 

concerned citizen. And I'm very pleased to have the opportunity to speak today in support of the Subtitle 

C designation for coal ash under the Resource Conservation and Recovery Act. 

In my professional capacity, I track how our federal legislative and regulatory systems make and enforce 

laws in this country. And I've had the opportunity first hand to see time and time again why voluntary 

measures, such as those that would result from the Subtitle D option, simply do not work; particularly not 

when we're speaking about for-profit ventures. Unless this industry is required by law to follow particular 

guidelines, there is no guarantee that public health and safety will be assured. In fact, regulating coal ash, 

which, as we've heard several times today, contains, among other substances, lead, mercury, cadmium,

chromium -- to regulate this in the same category as banana peels, soda cans and other household waste is 

truly unthinkable to me, particularly as a mother. 

And I don't believe that citizens should have to sue after the fact for compensation or remediation in the 

event of another coal ash disaster, such as what happened in Harriman, Tennessee in December of 2008. 

And I do believe the correct word there is "when" we have another coal ash disaster, and not "if." 

We should have the strongest public health protections from the start, and I believe that establishing the 

long overdue and robust standards that would result from a Subtitle C designation will help ensure that we 

have the best protections for our water, our air, and our children's future. I do not believe that 

environmental protection is a luxury as some utility spokespersons have suggested. I believe that these are 

fundamental rights and rights that we all have a shared responsibility to protect. 

And I trust and hope that the EPA is going to do the right thing at the conclusion of this hearing process 

and recommend a Subtitle D (sic) designation. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0017-2

Organization1:Dynegy

Commenter1:Linda Whelan

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

The EPA stated reason for favoring the Subtitle C hazardous approach is concern regarding enforcement 

capabilities, yet federal regulation of CCRs as non-hazardous provides extensive enforcement avenues. 

First, most states already have robust regulatory programs that apply to CCR management. Many states 

are likely to adopt Subtitle D requirements. Even in the absence of a state program, CCR facilities must 

meet Subtitle D requirements. They are not optional, unenforceable guidelines. 

Two, RCRA Section 7002 requires that any person, including states, can bring a civil enforcement action 
221

against any facility for violating any Subtitle D requirement. EPA has also proposed the extensive public 

release of CCR inspection and monitoring data to further enable this provision. 

Three, under RCRA 7003, EPA can also enforce Subtitle D requirements whenever a CCR facility may 

present an imminent and substantial danger to health or the environment. The threshold for EPA to abuse 

this authority is low as the courts have interpreted RCRA 7003 broadly. 

And four, to ensure compliance of CCR operations, EPA also has separate enforcement authority under 

the federal Clean Water Act, as does the office of surface mining under the federal Surface Mining and 

Reclamation Enforcement Act. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0030-1

Organization1:Colorado Interfaith Power and Light

Commenter1:Joy Jamison

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Other Sections: 9.2.3

Comment Excerpt Text:

This is a moral and eco-justice issue. Coal ash disproportionately affects the poor. Right here in Denver in 

the Elyria neighborhood next to Xcel's Cherokee plant, Xcel parks railroad cars full of coal ash right 

across the street from private housing.

According to the EPA's own statistics, 52 percent of coal ash sites have higher than average low-income 

families and 28 percent have higher than average minority populations. If coal ash is not regulated, the 

only recourse for individuals in these communities is citizen suits. No one there can afford to sue.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0074-2

Organization1:Clean Water Action

Commenter1:Tom Hoffman

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.2.4 7.1

Comment Excerpt Text:

It is our understanding that the EPA has two proposed regulatory options for coal ash - Plan C and Plan 

D. Clean Water Action is supporting the Strong Option, Plan C, that would provide basic environmental 

and public health safeguards backed up with federal enforcement and financial accountability. We need 

protection from coal ash cradle to grave and the Subtitle C option gives us that. We do not support the 

status quo option that relies on citizen suits or possible state regulations for enforcement. 

Pennsylvania is a resource rich state, but our residents have and will continue to pay a high price for that. 

Streams that are no longer life sustaining. Air that sends kids to the hospital with asthma at four times the 

national rate. Flammable drinking water in peoples' homes. Leaving things to the state is not an option 
222

here in Pennsylvania. We are facing severe budgetary shortfalls and our DEP has been slashed to the 

bone. Our communities are facing serious environmental threats from the booming natural gas drilling 

industry. Our Department of Environmental Protection does not have the necessary resources to protect us 

from those dangers let alone do what is necessary to regulate coal ash. Clean Water Action supports 

strong federal regulations on coal ash. 

Response: The Agency acknowledges and appreciates the comment. 

Section 4.2.4 - Federal enforcement provisions are needed, including concerns that EPA has no 

authority to implement/enforce proposed Subtitle D

Total Number of Submissions: 88

Total Number of Comments: 100

Comment Number: TRANS-ARL-0004-1

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.2 10.4.3

Comment Excerpt Text:

Coal ash recycling can be done safely and effectively, and it creates significant benefits: Environmental 

benefits, improved product performance benefits, and economic benefits. 

Citizens for Recycling First supports stronger regulation of coal ash disposal and does not object to 

federal enforcement authority over that program. But if getting federal enforcement authority requires 

designating coal ash a hazardous waste in any setting, the effects on recycling in the United States will be 

decimating. 

The hazardous waste stigma is real. A hazardous waste stigma presents significant barriers at every step 

of the chain, from the people who generate coal ash to the people who specify its use to the people who 

incorporate it in products, right down to the end-use consumers. How many people want to have 

something that's called hazardous waste somewhere else in their home or their school or their driveway or 

their roads or many of the places that we can use this material productively? 

While we appreciate EPA's statements that the Agency continues to support beneficial use, actions like 

creating the new label of "special waste" are not helpful in shielding the users from the potential liabilities 

of this. And actions like shutting down the coal combustion products partnership are actually having a 

detrimental effect to the recycling industry today well in advance of the conclusion of this rule. 

If the goal of this rulemaking is to protect the environment, then EPA should pursue policies that 

encourage more safe and effective recycling of coal ash as a preferred alternative to disposal. That means 

that we cannot use Subtitle C as a vehicle to promulgate those rules. 

Speaking for more than 1,500 citizens who care about the environment, please do not use Subtitle C as the 

way to enact these rules. We can improve disposal regulations in this country without destroying an 

industry that creates real benefits for our environment. 

Response: The Agency acknowledges and appreciates the comment. 
223

Comment Number: TRANS-ARL-0039-2

Organization1:Izaak Walton League of America

Commenter1:Scott Kavarovics

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Absent this comprehensive approach under Subtitle C, states would only be given suggested guidelines 

for disposal safeguards. Moreover, the EPA would lack enforcement authority. This weak approach under 

Subtitle D is completely inadequate to address proper handling and disposal of the second largest 

industrial waste stream in America.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0109-1

Organization1:Sierra Club

Commenter1:Drew Ball

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 7.1

Comment Excerpt Text:

We applaud EPA for recognizing the very real health and environmental risk posed by toxic coal ash. 

Given the seriousness of these risks, enforceable federal safeguards, not suggested state guidelines, are 

necessary to protect communities. Having done extensive work on coal ash within North Carolina, 

particularly with North Carolina state government, I can say firsthand that some states are not doing an 

adequate job of protecting communities from the dangers of coal ash. Strong federal safeguards needs to 

be issued quickly before more communities are exposed. Continuing to ignore scientific and safety 

concerns could come at a very high cost. 

North Carolina issued -- I'm sorry, the North Carolina Sierra Club issued a report on April 11th -- April 

12th of this year documenting how a lack of federal controls and weak state regulations have created a 

gaping loophole, allowing an unknown volume of coal ash to be disposed of with very little oversight and 

uncertain impacts to public health. This lack of oversight is placing the health of North Carolinians and 

our environment at risk. While some processes may render coal ash inert and, therefore, suitable for reuse, 

such as use in additive concrete, North Carolina's practice of allowing coal ash to be placed on the ground 

as fill material for land development with minimal oversight, has led to numerous problems. These 

problems include groundwater contamination, surface water contamination, sham landfills, environmental 

violations, and a failure to track locations of coal ash fills. The lack of federal regulation is what has led to 

the current failed patchwork of state protections against coal ash. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0003-1

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group
224

Classification: Substantive

Other Sections: 4.1.1 10.4.3

Comment Excerpt Text:

Today, I would like to make four key points that address common misconceptions that have been 

frequently stated at these series of public hearings. 

Number one: Coal ash does not qualify as a hazardous waste based on its toxicity. This is not an option. It 

is a fact that standardized tests show that the levels of metals in coal ash are below the amounts 

established for listing it as a hazardous waste. In recycling settings, the toxicity of coal ash is similar to 

the toxicity of the materials it commonly replaces. 

Number two: EPA's proposed Subtitle D and Subtitle C regulatory approaches are both protective of 

human health and the environment. The landfill construction standards proposed are essentially the same 

in both, and so EPA's Subtitle C proposal is not "stronger." The key differences between the proposals 

boil down to who gets to enforce the new regulations that EPA establishes, new regulations that are far 

from "business as usual" in either option. 

Number three: Stigma is real. Labeling coal ash as hazardous waste when it is disposed creates enormous 

barriers to recycling. Producers, marketers and users of coal ash have been unanimous in expressing this 

fact during the public hearings. The only people claiming the stigma is not real are people with no direct 

involvement in the recycling effort. 

And number four: Stigma is already taking a toll on recycling just as a result of this debate. Specifiers and 

users of coal ash are already beginning to remove the material from projects because of regulatory 

uncertainty and fear of future liabilities. Manufacturers of products that compete with coal ash are 

actively using this forum to make false claims about dangers of using coal ash. And we have seen 

numerous witnesses at these very hearings express fear regarding long established beneficial uses of coal 

ash, proving the point that the drumbeat of the terms "toxic" and "hazardous" dramatically affects 

consumer behavior. 

The people who work everyday to recycle coal ash are extremely disheartened by this debate. Many of 

them have devoted entire careers to do something good for the environment. They now feel betrayed by 

the Environmental Protection Agency and by environmental groups who appear resolved to ignore and 

sacrifice the benefits of recycling in their single-minded push for federal enforcement authority. 

New coal ash disposal regulations under Subtitle D will make meaningful improvements to disposal 

practices and do it faster than Subtitle C can. Subtitle D will protect human health and the environment, 

and will avoid the creation of an unnecessary and harmful hazardous waste stigma that will wreck efforts 

to safely and responsibly recycle millions of tons of material that otherwise will find its way to landfills. 

Subtitle D is the right choice for the environment. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0043-2

Organization1:

Commenter1:Aaron Turkewitz

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.1 4.2.1

Comment Excerpt Text:

Given this reality, it is clear to me that the EPA should and must adopt the strongest possible regulations 

to contain the toxins in coal ash. To begin with, coal ash should be regulated from cradle to grave. Many 

of the conditions in Subtitle D are inappropriate for dealing with hazardous waste. Both logic and history 

argue that it is unrealistic to expect an industry to police itself. 
225

Similarly, private citizen driven lawsuits, to expect private citizen driven lawsuits to be an effective 

counterbalance to industry power is unrealistic. While David and Goliath may be an appealing story, it's 

not a good model for ensuring the changes that are required to safeguard human and environmental 

health. For this reason, the regulations and the enforcement must come from the federal level. 

The current patchwork of state regulations are weak. Many states fail to require even basic safeguards 

such as adequate monitoring. State-based regulations and enforcement are also inappropriate because 

unless rules are changed, coal ash and coal ash polluted groundwater don't actually respect state 

boundaries. 

I want the environment in which I and my neighbors live to be cleaner and healthier. I want the 

environment that children inherit to be cleaner still. The EPA is the right agency to take the lead and I 

hope it will adopt provisions at least as strong and binding as those in Subtitle D with regard to coal ash.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0064-3

Organization1:Peoria Families Against Toxic Waste

Commenter1:Tracy Fox

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.2.4

Comment Excerpt Text:

The second reason why I think C is so important is because it includes enforceable corrective action, and I 

think that's a key difference. As someone who has looked at the numerous reports showing water quality 

violations, well incursions and other monitoring problems, and to realize that Subtitle D includes no 

enforceable corrective action, all the self-imposed monitoring and reporting in the world is worthless 

without that.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0078-1

Organization1:Michigan Citizen Action

Commenter1:Adam Knott

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

We strongly support Subtitle C because of the state and federal enforcement that would be part of the 

rule, because private citizens cannot bring a suit on their own, through their own resources. The industry 

has the unlimited checkbook and can outlast any citizen group. Plus, there is no guarantee that the state, 

even though it can be acting as a citizen, will necessarily bring corrective action or bring enforcement to 

the industry. 

And also, we support the state and the federal government's corrective actions under the Subtitle because 

the industry, as much as they have the good intentions of fixing their mistakes and self regulating, don't 

always do that. I can tell you as someone who lives 30 minutes from Marshall, Michigan where 800,000 

gallons of oil were leaked into the Kalamazoo River where I get my water from, that company had 350 
226

areas of concern and did not address them at all. So, we strongly need both the state and the federal 

government in there to enforce any corrective action that is needed. 

And lastly, Subtitle C will create uniformity throughout the country, from cradle to grave of coal ash and 

its regulation. And if everyone knows the rules, everyone can act accordingly and, you know, those that 

use, whether it's cement makers or the coal industry, if they know what the rules are, they can act 

accordingly and offer the best service and the best product and the landfills will not dry up overnight. 

Every time a rule such as this is proposed, they always say that they'll go out of business. Well, we hear 

that from the regulation of industries that have abused their positions regularly. If it's not the coal 

industry, it's the insurance industry, and not one of them has gone out of business yet. So, we strongly 

support Subtitle C.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0110-1

Organization1:

Commenter1:Susan Michetti

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 4.2.1

Comment Excerpt Text:

Coal ash needs classification as a listed toxic substance to be regulated under RCRA Subtitle C with a 

comprehensive program with federally enforceable requirements as a minimum, not through citizen suits 

that require deep pockets and will bring bankruptcy to those citizens.

The coal industry outrageously brags they meet the standards while contaminating the drinking water in 

Wisconsin, so Caledonia has to have bottled water. Since voluntary industry self-regulation is beyond 

failed, industry corporations must be held financially accountable for all external cost including testing 

and cleanup, not paid by individual victims of these unfair, unethical externalities of their costs of doing 

business. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0004-1

Organization1:Sierra Club Beyond Coal Campaign

Commenter1:Marianne Hitt

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

The first point: coal ash should be classified under Subtitle C of RCRA, not D, because one, it is indeed 

toxic. Why else would TVA be spending $1 billion in buying up all the land around the Kingston spill if it 

was not? We know it causes developmental problems in children, and cancer and other ailments caused 

by all those heavy metals. 

And secondly, the key here is that Subtitle C is federally enforceable and Subtitle D is not. Subtitle D is 

only enforceable by states and citizen suits. And we know that state enforcement has been spotty at best. 

That's what got us into this situation in the first place. And I think we can all agree that it's unfair and I 

would say unreasonable to expect citizens to bear the burden of enforcing rules when the polluters they 
227

are encountering are well-resourced, well-financed, and these are complex, lengthy, technical, legal 

proceedings. 

So putting the burden of enforcement on states and on citizens is not getting the job done when you've got 

hundreds of these sites all across the country. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0031-2

Organization1:Sphere One, Inc.

Commenter1:Ryan Brownhill

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

We in the recycling CCP industry support strong relation (sic) of CCRs under Subtitle D with Federal 

enforcement authority. The EPA can't be afraid to lead. With our economy sputtering, you would think 

the EPA could work with Congress, get direct enforcement authority, and proceed to regulate CCRs under 

Subtitle D without creating this damaging stigma for CCPs. 

If there is even some question about how Subtitle C classification will be detrimental to business, why do 

it, especially when there is a technically sufficient solution that carries virtually no risk to the beneficial 

use of CCPs? A Subtitle D classification allows the EPA to live up to its responsibilities to protect the 

environment as well as its responsibility to all the hard working Americans whose livelihood depends on 

the reuse of CCPs. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0084-1

Organization1:North Carolina House

Commenter1:Tracy Harrison

Commenter Type: State Elected Official

Classification: Substantive

Other Sections: 7.1

Comment Excerpt Text:

I'm a member of the North Carolina House, serving in my third term representing Greensboro. And I'm 

not going to repeat all that you all have heard about the environmental issues associated and public health 

issues associated with coal ash but I would like to talk about my extraordinary frustration with getting 

regulation done at the state level here in North Carolina, and why we need Federal leadership on this. 

It was pretty troubling for me to find out how ubiquitous coal ash is used in North Carolina, in structural 

fill on construction sites, on the roads to melt snow and ice and it goes virtually unregulated, 

unmonitored, unenforced, unreported. So I have been working for three years to introduce legislation at 

the state level to bring in some new practices and provide better oversight, and I feel stymied in efforts by 

the coal ash producers who would prefer Federal regulation -- at the federal level, but I believe -- Subtitle 

D, is treating it as regular household waste, and I contend to you all that it's much too toxic to be used, to 

be regulated as regular household waste. 

And it's pretty clear that the states, when I was looking for legislation, model legislation, around the 

country to model a North Carolina bill, I couldn't find one. So it's my feeling that there's not adequate 

regulation of coal ash anywhere in any state. So we really need federal regulation and we need federal 

regulation under Subtitle C.
228

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0139-1

Organization1:Concerned Citizens of Giles County, Virginia

Commenter1:Darlene Cunningham

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

I live in Giles County, a Southwestern county in Virginia where a division of American Electric Power 

and a 501(c)(3) public school foundation have teamed to construct an unlined fly ash dump right on the 

edge of the New River. Citizens of my county have been denied a right to a public hearing to oppose this. 

Actually, my state DEQ allows such action calling it "beneficial use." That's right. Pouring tons of toxic 

ash in an unlined site right by the river and calling it "fill" is okay in my state. Such is the regulation in 

Virginia. 

The notion that states and utilities are effectively regulating coal waste is grossly erroneous and is being 

circulated by those who stand to profit if the status quo is maintained as described in Subtitle D. These 

hearings would not be necessary if states and industry were generally concerned about protection of our 

water and if they were disposing of their waste responsibly. The fact is there must be effective, 

enforceable Federal regulation for coal waste if public health is to be valued over corporate profits. 

Subtitle C is the only rational choice.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0027-1

Organization1:Ozark Headwaters Group of Sierra Club and Arkansans Against Ash Dumping

Commenter1:David Orr

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

I'm the chair of the Ozark Headwaters Group of Sierra Club in Arkansas. And I am also founder of 

Arkansans Against Ash Dumping. We appreciate the opportunity today to support the proposed Subtitle C 

rule that would regulate coal fly ash as a hazardous waste material. In our state, the -- the regulatory 

framework is considered by many to be one of the weakest in the United States. Our Department of 

Environmental Quality has little authority to take enforcement actions of any significance under the Clean 

Water Act and other -- and other environmental laws. We need help from EPA and from the federal 

government generally to put additional pressure on our state and on the Arkansas Department of 

Environmental Quality to take its responsibilities under federal environmental law more seriously or else 

take enforcement over from ADEQ and the other agencies that are failing in their responsibilities. 

And while we have concerns with failure to enforce existing laws, we are here today to bring to your 

attention a growing threat to groundwater and aquifers in our state, and to our streams and soils, as well. 

The unregulated dumping of coal ash is polluting our state, especially now in areas where drilling for 

natural gas is occurring. We have the Fayetteville shale formation where hydraulic fracking techniques 

are used that cause extensive damage to aquifers, streams, and soils. 

This fracking technology uses massive amounts of clean water from groundwater supplies and surface 

water supplies in fracturing underground gas-bearing rock. Water is mixed with toxic drill muds, organic 

chemicals including benzene and toluene and other heavy metals. These pollutants are either left in place 
229

or pumped out of the drill holes and dumped in open pits or pumped down other holes and ponds, such as 

is done in Bokoshe, Oklahoma, just across our western border near Fort Smith. 

We are now informed that fly ash is being pumped into abandoned drill holes where it may be leaching 

into adjacent groundwater supplies. Because there is no regulation of ash today, we have no idea how 

much ash is being dumped into wells, nor do we know how much leachate has migrated or will migrate 

into aquifers. We have learned that Oklahoma ash is being hauled into Arkansas for dumping and vice 

versa. Clearly, there is now an interstate commerce in fly ash. We must have federal intervention and 

regulation to control the proliferation of these shipments.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0063-1

Organization1:

Commenter1:Jody Harlan

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

I would like for the EPA to recognize the public health and environmental hazards caused by coal ash and 

the impact on the communities in Oklahoma. And ask you to regulate it under federal guidelines Subtitle 

C of the RCRA. This is the only option that establishes federally enforceable standards needed for 

oversight and protection of the citizens and -- and the water.

In Oklahoma, state regulation and enforcement are notoriously weak or nonexistent. The Oklahoma 

Department of Environmental Quality, the Water Resources Board, and the Oklahoma Department of 

Mines each insist that the other is responsible for regulation. And to regulate under Subtitle C would be 

following EPA's own guidelines.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0003-2

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

It is a fact that coal ash does not qualify as hazardous waste based on its toxicity, which is similar to the 

toxicity of other building materials that it replaces when it's recycled. 

It is also a fact the landfill engineering standards EPA is proposing are essentially the same under both the 

Subtitle C hazardous and Subtitle D nonhazardous regulatory options. 

Designating coal ash as hazardous when destined for disposal does not result in a greater level of 

protection for the environment. It does give the federal EPA a clearer path to enforcing its new 

engineering standards rather than delegating enforcement of EPA standards to the states. But getting that 

enforcement authority comes at a terrible price, the possible destruction of a recycling industry that 

greatly benefits our environment. 

Common sense says that risking an entire recycling industry over a regulatory turf battle is a bad idea, and 

common sense says that new coal ash disposal regulations should be enacted under Subtitle D, and EPA 

should work to promote safe and environmentally beneficial recycling as a preferred alternative to 
230

disposal. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0061-3

Organization1:Rocker Six Cattle Company

Commenter1:Clint McRae

Commenter Type: Other Company

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

The State of Montana, Department of Environmental Quality, the only thing they have done is produced a 

two-page flowchart, which I will include with my comments today. 

This toxic and poison water, as I said, is a herd health issue, and the State of Montana has done nothing to 

enforce the law. Subtitle D, if chosen, will also do nothing and will continue the process as is. 

PP&L has done very little to stop the leak, and I think it's time that they become a good neighbor and 

work to protect us in the cow business. It's time for federal oversight. 

Please designate wet ash pond effluent what it is. It's hazardous. And at the minimum, please pick substandard -- C -- the C option

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0002-1

Organization1:Southern Alliance for Clean Energy

Commenter1:Steven Smith

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

I was asked to come up and speak before the Environmental Public Works Committee the first week of 

January. Talking to that committee, we -- and the chairman, Chairman Barbara Boxer, she basically said, 

"Look, Lisa Jackson is going to be up. We're going to talk to her during her confirmation hearing." And 

sure enough, two weeks later she was up there, made a commitment to actually do something about coal 

ash once and for all. And it's been long in coming, because we came very close to regulating coal ash 

back in the late 1990s. And O & B, at that time, held it up. O & B this time has delayed the proceedings 

now for over six months as they've wrangled with and been lobbied by those who have a financial interest 

and are willing to put that financial interest above and beyond the health and -- and safety of citizens. 

So what we did was, now that the new ash rules are out, we've actually written a report where we've taken 

a look at what the state of Tennessee, which has basically been ground zero for coal ash. And what we did 

was we saw, what are they doing in the regulations. I want to submit this as part of the record. But the 

bottom line is that under Subtitle D, you defer tremendously to the states. And what we're seeing is the 

states aren't stepping up. 

EPA has a role, has a responsibility to be a backstop. And that's why we are strongly in support of 

Subtitle C, because we need that backstop, we need that agency to make sure that the rules are enforced. 

And if they're not enforced, then what -- what we see is we see these kind of devastation that we saw in 

Oak Ridge -- I mean, in Harriman. 

So we'll submit this as part of the record. My colleague Josh Galperin is going to get into the specifics on 
231

the report, but I'm here to strongly encourage that Subtitle C be the course. That is the only way that we 

can protect public health and the environment. That's the only way that we can assure that the kind of 

accidents that happened in Harriman will not happen again. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0042-3

Organization1:

Commenter1:William Wilson

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

The state of Tennessee has no effective regulations in place to protect our communities from the danger 

of coal ash. And the evidence is seen in the Kingston coal ash disaster. It's documented that Tennessee 

has no laws designed specifically to address the dangers of coal ash. Because of this lack of state 

regulation, obviously, Subtitle D is not acceptable. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0068-1

Organization1:

Commenter1:Linda Smithyman

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

Several Kentucky utilities, LG&E's ponds, fall into this category. I used to live in Kentucky for a little 

while. These ash-disposal sites also leak their toxic cargo into ground water or discharge it directly into 

rivers, creeks, and lakes as runoff or through permitted outfalls. Until the EPA takes action, there are no 

federal rules setting standards for the safe disposal of ash or limiting the discharge of toxic ash, 

leachate, into our waterways. We need comprehensive federally-enforceable safeguards to protect 

human health, wildlife, and the environment. 

Coal ash must be regulated under Subtitle C of the Resource Conservation and Recovery Act as special 

waste with all the safeguards that apply. Coal ash should not be regulated under the much weaker --

MR. SOUDERS: Sorry. 

MS. SMITHYMAN: Okay. 

MS. DEVLIN: Okay. Thank you very much. 

MS. SMITHYMAN: -- and less protective standards provided by a Subtitle D designation, as nonhazardous 

waste. 

Regulating coal ash under Subtitle D or RCRA is a busted and broken approach that essentially keeps the 

status quo of voluntary and patchwork protections. Subtitle D guidelines cannot guarantee all citizens 

adequate protections from toxic ash because Subtitle D does not require states to adopt federal 

guidelines. 

There are currently no federally-enforceable regulations specific to coal ash, and contamination from 

coal ash landfills and wasteponds is already poisoning drinking water supplies and damaging wildlife. 
232

such as fish and birds, at locations across the country. The last of federally-enforceable safeguards is 

exactly what led to the disaster in Tennessee, which a dam holding more than 1 billion gallons of toxic 

coal ash failed, destroying 300 acres, dozens of homes, killed fish and other wildlife, and poisoned the 

Emory and Clinch Rivers. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0112-2

Organization1:University of Tennessee

Commenter1:Gregory Button

Commenter Type: Academia

Classification: Substantive

Other Sections: 3.1.1 7.1

Comment Excerpt Text:

Unless the EPA adopts the above-mentioned option, our nation's citizens and our environment will 

continue to remain vulnerable to the toxicity of coal ash. The TVA ash spill has dramatically and 

tragically demonstrated the failures of relying on a patchwork of state regulation. 

It is imperative that the EPA have direct oversight over the generation of storage, transportation, and the 

disposal of coal ash in order to safeguard the public and the environment. Subtitle D would continue to 

rely on a state-by-state patchwork of regulations, which time and time again has proven to be inadequate. 

Comment Number: TRANS-LVL-0088-1

Organization1:League of Women Voters

Commenter1:Joan Lindop

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 7.1

Comment Excerpt Text:

Much of Kentucky is dotted with limestone caves, which means that ground water travels miles very 

quickly. It's very hard to know where that ground water will end up once it -- contaminated water is there. 

We know it will go into the Ohio River. The League of Women Voters urges EPA to take charge. 

Already, several organizations in Kentucky have requested that the US EPA take back primacy from the 

Kentucky Division of Water. The failure of the Kentucky Division of Water to enforce water quality 

standards in our waterways has resulted in many miles of polluted streams, streams that are not fishable or 

swimmable, as Kentucky Department of Water was required to report in the latest Kentucky Division of 

Water Integrated Report. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0094-2

Organization1:Environmental Integrity Project

Commenter1:Sam Flenner

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:
233

Voluntary Subtitle D means residents near coal ash disposal sites will have no guarantee that they will 

even have access to coal ash toxicity information that can prevent contamination, illness, birth defects, to 

go along with the fact that they don't even have reliable, accurate tests being conducted right now. 

Numerous letters have been sent to the EPA by state agencies, legislators, and so forth. Indiana 

Department of Environmental Management says none of their many years of -- of -- of -- years to date has 

indicated that the characteristics of CCBs approaches the limits for toxicity in the federal regulations to 

identify havard -- hazardous waste. Of course not. The test is inaccurate. The DNR says that -- and I -- I 

quote -- "Indiana statute provides for the use of CCBs in beneficial-use applications in the state of Indiana 

so long as the material is used for specific purposes and is not hazardous waste." Well, in reality, if you 

take a look at Indiana statute, the Indiana Solid Waste Management Board is prohibited from even 

regulating coal ash. 

And so we need Subtitle D. Subtitle -- or Subtitle C. Excuse me. We need Subtitle C because after three 

years of self-policing under Subtitle D, state regulators and the utilities have proven 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0074-2

Organization1:Clean Water Action

Commenter1:Tom Hoffman

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.2.1 7.1

Comment Excerpt Text:

It is our understanding that the EPA has two proposed regulatory options for coal ash - Plan C and Plan 

D. Clean Water Action is supporting the Strong Option, Plan C, that would provide basic environmental 

and public health safeguards backed up with federal enforcement and financial accountability. We need 

protection from coal ash cradle to grave and the Subtitle C option gives us that. We do not support the 

status quo option that relies on citizen suits or possible state regulations for enforcement. 

Pennsylvania is a resource rich state, but our residents have and will continue to pay a high price for that. 

Streams that are no longer life sustaining. Air that sends kids to the hospital with asthma at four times the 

national rate. Flammable drinking water in peoples' homes. Leaving things to the state is not an option 

here in Pennsylvania. We are facing severe budgetary shortfalls and our DEP has been slashed to the 

bone. Our communities are facing serious environmental threats from the booming natural gas drilling 

industry. Our Department of Environmental Protection does not have the necessary resources to protect us 

from those dangers let alone do what is necessary to regulate coal ash. Clean Water Action supports 

strong federal regulations on coal ash. 

Response: The Agency acknowledges and appreciates the comment. 

Section 4.2.5 - Potential use under Subtitle D approach of “imminent and substantial 

endangerment” authorities under RCRA, CERCLA, CWA or other federal authorities (35211)

Total Number of Submissions: 27

Total Number of Comments: 29

Comment Number: TRANS-DEN-0039-2

Organization1:Utility Solid Waste Activities Group

Commenter1:Jim Roewer

Commenter Type: Trade Association
234

Classification: Substantive

Other Sections: 2.1.2

Comment Excerpt Text:

One of EPA's stated concerns with the Subtitle D option is its perceived lack of federal enforceability 

under this approach. However, EPA does have the authority to issue federally enforceable Subtitle D rules 

for CCRs; it simply is not using that authority. 

I refer EPA to the same RCRA provisions under which it issued federally enforceable Subtitle D rules for 

municipal solid waste landfills. The first provision, Section 4010(c), directs EPA to develop Subtitle 

standards for facilities that may or may potentially receive household or conditionally exempt small 

quantity generator waste. 

A related provision, Section 4005(c), authorizes EPA to enforce these Subtitle D regulations in states that 

fail to adopt and implement the federal rules. 

CCR disposal facilities fall within the scope of EPA's authority under these provisions, and without any 

question may or have the potential to receive these wastes. 

The development of Subtitle D regulations under 4010 of RCRA offers a win-win for EPA and the public. 

While this approach would likely require supplemental proposals, it will assure that the agency gets it 

right, providing the agency with the enforcement authority it desires while avoiding the unnecessary and 

adverse implications of Subtitle C. 

There is simply no reason for EPA to pursue the Subtitle C approach when it can develop federally 

enforceable rules under the less controversial, yet equally protective, Subtitle D nonhazardous waste 

program

Response: The Agency acknowledges and appreciates the comment. 

Section 4.2.6 - General concerns about self-implementing RCRA Subtitle D standards (35211)

Total Number of Submissions: 16

Total Number of Comments: 20

Comment Number: TRANS-ARL-0002-5

Organization1:Environmental Integrity Project

Commenter1:Eric Shaffer

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

A lot of talk about Subtitle D. Under Subtitle D, if you contaminate groundwater at these sites, you are 

supposed to be shut down or upgraded. How many of these sites failed to meet that standard and has 

anything been done about enforcement?

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0153-1

Organization1:Greenpeace USA

Commenter1:Robert Gardner

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:
235

Business as usual will not protect the health and welfare of the American people. Responding to 

pressure from the utility industry, prior administrations have allowed the industry to police itself or selfregulate under a patchwork of state directives, leading to the extensive contamination of water and land 

by toxic heavy metals. This approach has not and will not protect streams, ponds, rivers, lakes and other 

waters. 

Response: The Agency acknowledges and appreciates the comment. 

Section 4.4.5.1 - Requirement for composite liner and leachate collection and removal systems 

(35202-35203)

Total Number of Submissions: 71

Total Number of Comments: 96

Comment Number: TRANS-ARL-0025-1

Organization1:Geosynthetic Materials Association

Commenter1:Boyd Ramsey

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Our comment to EPA is very simple: We request the EPA mandate the geosynthetic lining of coal ash 

storage facilities using composite lining systems. In the shortest terms, use liners, specifically composite 

liners. Why? Because liners work. Concerns of safety regarding CCRs are mitigated if landfill storage 

sites are lined with a composite lining system of a geomembrane and a geosynthetic clay liner. A 

composite lining system prevents leachate from entering the groundwater. Safety concerns regarding 

surface impoundments are also mitigated if the impoundments are lined with a composite lining system. 

The American Society of Civil Engineers does a regular report card on America's infrastructure. For the 

last three report cards, representing over a decade, solid waste has received the highest grade of any 

category. My industry does a good job of taking America's waste and properly storing it to protect the 

environment. The materials, technology, and people exist: the engineers, engineering standards, the 

general contractors and installers who can build the proper facilities, and the regulators and inspectors 

who assure that work is done correctly. We urge the EPA to use what works and is working today. 

Further, our industry has continuously improved over time, and EPA has been a part of that effort. Over 

the years EPA has commissioned nearly 80 studies on the design and performance of lining systems. We 

specifically call your attention to a 2002 study titled Assessment and Recommendations for the Optimal 

Performance of Waste Containment Systems. That study contains a great deal of pertinent information on 

how to construct containment systems. 

Most illustrative for today is a graph charting the leakage rate of various designs over the life cycle of 

nearly 200 facilities. The composite lining system -- that's the line in red -- of a geomembrane and a 

geosynthetic clay liner was demonstrated to have the lowest leakage rate over all life cycle stages, 

including a near zero leakage rate after the facilities are closed and final cover is placed. Our materials 

work. The use of a composite lining system will achieve the EPA mission to protect human health and the 

environment for all Americans

Response: The Agency acknowledges and appreciates the comment. 
236

Comment Number: TRANS-CHI-0013-1

Organization1:Geosynthetic Materials Association (and CETCO)

Commenter1:Jim Olsta

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Our comment to the EPA is simple. We request that the EPA mandate the geosynthetic lining of coal ash 

storage facilities using composite lining systems, specifically geomembranes and geosynthetic clay liners. 

Why? Because "These liners work." Concerns of risk regarding CCRs are mitigated if the landfill storage 

sites are lined with a composite liner system of a geomembrane and a geosynthetic clay liner. 

The American Society of Civil Engineers does a regular report card on America's infrastructure. For the 

last three report cards representing over the last decade, coal ash waste industry has gotten the highest 

grade of any category. Since the enactment of Subtitle D, the solid waste industry has done an excellent 

job of taking America's waste and properly storing it protect the environment. The materials, standards 

and people exist, experienced engineers, contractors and installers who can design and build the proper 

facilities, and the regulators and inspectors to assure the work is done correctly. We urge EPA to "use 

what exists and is working today." 

Further, our industry has continually improved over time and EPA has been a part of that effort. Over the 

years, EPA has commissioned nearly 80 studies of the design and performance of lining systems. These 

studies contain a great deal of pertinent information on how to construct containment systems. We 

specifically call to your attention the 2002 study titled "Assessment and Recommendations for Optimal 

Performance of Waste Containment Systems" (EPA 600/R-02/099). Most illustrative for today is a graph 

charting the leakage rate of different designs over the life cycle of nearly 200 facilities. The composite 

liner system of a geomembrane and a geosynthetic clay liner was demonstrated to have the lowest leakage 

rate over all life cycles including a near zero leakage rate for facilities closed. 

Additionally, CETCO and the University of Wisconsin will be submitting technical information that 

indicates that CCR leachate is compatible with geosynthetic clay liners, and thus should exhibit similar 

performance in CCR composite liner systems to that noted in the previous EPA study. 

We note that in the proposed rule that EPA solicits comments on whether alternative liners should be 

allowed. Geosynthetic clay liners would only be used if they're allowed as an alternative to the 

prescriptive compacted clay component of the composite liner in the rule. Since GCLs are expected to 

contribute the lowest leakage, lower than compacted clay, and can help achieve EPA's mission to protect 

human health and the environment, we recommend that geosynthetic clay liners be allowed as an 

alternative liner component

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0104-1

Organization1:

Commenter1:Charles Wilk

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I am a former RCRA hazardous waste management facility permit writer working at the US 

Environmental Protection Agency here in Region 5. My comment today relates to the landfill design for 

coal ash if it is managed under RCRA Subtitle D. 

The current proposal describing this scenario requires a landfill liner system that is not state of the art. 
237

The proposed rule under Subtitle D's scenario as it is written now excludes the use of geosynthetic clay 

liner. Geosynthetic clay liner or GCL is part of the state of the art landfill liner system. GCLs have long 

been used and approved for both RCRA Subtitle C hazardous waste landfills and Subtitle D solid waste 

landfills. 

By excluding GCL from the design of coal ash landfills under the currently written Subtitle D scenario, 

we are missing an opportunity to provide the public with the most protective landfill liner system 

available. I suggest that EPA review the data and establish the use of GCL, and then promulgate a final 

rule that includes geosynthetic clay liner in the presumptive landfill liner design regardless if coal ash is 

classified as Subtitle D or Subtitle C.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0057-1

Organization1:Geosynthetic Materials Association

Commenter1:Edward Silva

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Our comment to EPA is very simple: We request that EPA mandate the geosynthetic lining of coal ash 

storage facilities using composite lining systems. In the shortest terms, use liners; specifically, composite 

liners. Why? Because liners work. 

Concerns of safety regarding CCRs are mitigated at the landfill starter sites; are lined with a composite 

liner system of a geomembrane and a geosynthetic liner. A composite liner system prevents the leachate 

from entering the environment. Safety concerns regarding surface impoundments are also mitigated if the 

impoundments are lined with a composite liner system. 

The American Society of Civil Engineers does a regular report card on America's infrastructure. Of the 

three report cards representing over a decade, solid waste has received the highest grade of any category. 

My industry does a good job of taking America's waste and properly storing it to protect the environment. 

The materials, technology, and people exist; the engineers, engineering techniques and standards. The 

general contractors and installers who can build the proper facilities and the regulators and inspectors will 

assure the work is done correctly. We urge EPA to use what exists and is working today. 

Further, our industry has continuously improved over time and EPA has been a part of that effort. Over 

the years, EPA has commissioned nearly 80 studies of the design and performance of liner systems. 

We specifically call your attention to 2002 study titled, "Assessment and Recommendations for Optimal 

Performance of Waste-Containing Systems." That study contains a great deal of pertinent information on 

how to construct containment systems. 

What is illustrated for today is a graph charting the leakage rate of different designs over the life cycle of 

nearly 200 facilities. The composite liner system of a geomembrane and a geosynthetic clay liner was 

demonstrated at the lowest leakage rate over all life cycle stages, including a near-zero leakage rate after 

the facilities are closed and final cover placed. Our materials work. Use of composite liner systems will 

achieve the EPA's mission to protect human health and the environment for all Americans

Response: The Agency acknowledges and appreciates the comment. 
238

Comment Number: TRANS-DAL-0018-1

Organization1:Geosynthetic Materials Association

Commenter1:Matt Skinner

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Our comment to EPA is very simple. We request that EPA mandate the geosynthetic lining of coal ash 

storage facilities using composite liner systems. In the shortest terms, use liners, specifically composite 

liners. Why? Because they work. Concerns of safety regarding CCRs are mitigated if the landfill storage 

sites are lined with a composite liner system of a geomembrane and a geosynthetic clay liner. A 

composite liner system prevents the leachate from entering the environment. Safety concerns regarding 

surface impoundments are also mitigated if the impoundments are lined with a composite liner system. 

The American Society of Civil Engineers does a regular report card on America's infrastructure. For the 

last three report cards representing over a decade, solid waste has received the highest grade of any 

category. My industry does a great job of taking America's -- treating America's waste, taking care of it 

properly and storing it, and protecting the environment. The materials, technology, and people exist. The 

engineers, engineering techniques, and standards the general contractors and installers who can build the 

proper facilities, and the regulators and inspectors who assure the work is done correctly. We urge EPA to 

use what exists and what is working today. 

Further, our industry has continuously improved over time, and EPA has been a significant part of that 

effort. Over the years, EPA has commissioned nearly 80 studies of the design and performance of lining 

systems. We specifically call your attention to a 2002 study titled: Assessment and Recommendations for 

Optimal Performance of Waste Containment Systems. That study contains a great deal of pertinent 

information on how to construct containment systems. Most illustrative for today is a graph, which I'll 

provide for your review, charting the leakage rate of different designs over the life cycle of nearly 200 

facilities. The composite liner system of a geomembrane and geosynthetic clay liner was demonstrated to 

have the lowest leakage rate over all life cycle stages including a near zero leakage rate after the facilities 

were closed and final cover placed. Our materials work. 

Use of composite liner system will achieve the EPA's mission to protect human health and environment 

for all Americans

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0124-1

Organization1:Geosynthetic Materials Association

Commenter1:Edward Silva

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Our comment to the EPA is very simple. We request that EPA mandate the geosynthetic lining of coal ash 

storage facilities using composite lining systems. In the shortest terms: Use liners, specifically composite 

liners. 

Why? Because liners work. Concerns of safety regarding CCRs are mitigated if the landfill storage sites 

are lined with a composite liner system of a geomembrane and a geosynthetic clay liner. A composite 

liner system prevents the leachate from entering the environment. Safety concerns regarding surface 
239

impoundments are also mitigated if the impoundments are lined with a composite liner system. 

The American Society of Civil Engineers does a regular report card on America's infrastructure. For the 

last three report cards representing over a decade, solid waste has received the highest grade of any 

category. My industry does a good job of taking America's waste and properly storing it to protect the 

environment. 

The materials, technology and people exist, the engineers, engineering techniques and standards, the 

general contractors and installers who build the proper facilities and the regulators and inspectors who 

assure the work is done correctly. We urge EPA to use what exists and is working today. 

Further, our industry has continuously improved over time, and EPA has been a part of that effort. Over 

the years, EPA has commissioned nearly 80 studies of the design and performance of lining systems. We 

specifically call your attention to a 2002 study titled "Assessment and Recommendations for Optimal 

Performance of Waste Containment Systems." 

That study contains a great deal of pertinent information on how to construct containment systems. Most 

illustrative for today is a graph charting the leakage rate of different designs over the life cycle of nearly 

200 facilities. 

The composite liner system of a geomembrane and a geosynthetic clay liner was demonstrated to have the 

lowest leakage rate over all life cycle stages, including a near zero leakage rate after the facilities are 

closed and final cover placed. Our materials work. Use of composite liner systems will achieve the EPA 

mission to protect human health and the environment for all Americans

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0011-1

Organization1:Geosynthetic Materials Association

Commenter1:Andrew Aho

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Our comments for the EPA is simple. We request that the EPA mandate that geosynthetic material lining 

of coal ash storage facilities using composite lining systems. In the shortest terms, use liners. Liners work, 

specifically composite liners. 

Concerns of safety regarding CCRs are mitigated if the landfill storage sites are lined with a composite 

system of a geomembrane and a geosynthetic clay liner. The composite liner system prevents the leachate 

from entering the environment. Safety concerns regarding surface impoundments are also mitigated if 

impoundments are lined with a composite lining system. 

The American Association of Civil Engineers does a regular report card on America's infrastructure. For 

the last three report cards representing over a decade, soil waste has received the highest grade of any 

category. My industry does a good job of taking America's waste and properly storing it to protect the 

environment. 

The materials, technology, and people exist. The engineers, engineering techniques, and standards, the 

general contractors and installers who can build the proper facilities exist. The regulators and inspectors 

who insure the work is done properly -- done correctly also exist. We urge the EPA to use what exists and 

is working today. 

Further, our industry has continuously improved over time, and the EPA has been part of that effort. Over 

the years the EPA has commissioned nearly 80 studies of the design and performance of lining system. 

We specifically call your attention to a 2002 study title Assessment and Recommendations for Optimal 

Performance of Waste Containment Systems. 
240

That study contains a great deal of pertinent information on how to construct a containment system. Most 

illustrative is a graph charting the leakage rate of different designs over the life cycle of nearly 200 

facilities. 

The composite liner system of a geomembrane and geosynthetic clay liner is demonstrated to have the 

lowest leakage rate over all life cycle stages including near zero leakage rate after the facilities are closed 

and the final cover placed. Our materials work

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0030-1

Organization1:Geosynthetic Materials Association

Commenter1:Boyd Ramsey

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Our comment to the EPA is very simple. We request that EPA mandate the geosynthetic lining of coal ash 

facilities using composite lining systems. In the shortest terms, use liners because they work. The 

concerns of safety regarding coal combustion residuals are mitigated if landfill storage sites are lined with 

a composite liner system consisting of a geomembrane and a geosynthetic clay liner. 

The American Society of Civil Engineers does a regular report card on America's infrastructure. The last 

three report cards represent over a decade and solid waste has received the highest grade of any category. 

My industry does a good job of taking care of America's waste and properly storing it to protect the 

environment. The materials, technology and people exist, the engineers, engineering techniques and 

standards, general contractors and installers that can build the proper facilities, and regulators and 

inspectors to ensure that the work is done correctly. We urge EPA to use what exists and is working 

today. 

Further, our industry has continually improved over time, and EPA has been a part of that effort. Over the 

years, EPA has commissioned nearly 80 studies in the design and performance of lining systems. We call 

your attention to a 2002 EPA study titled "Assessment and Recommendations for Optimal Performance 

of Waste Containment Systems." 

Most illustrated for today is a graph from that study illustrating the leakage rate of different designs over 

the life cycle of nearly 200 facilities. The composite system of geomembrane and geosynthetic clay liner 

was demonstrated to have the lowest leakage rate over all life cycles, including a near zero leakage rate 

after the facilities are closed and final cover placed. Our materials work. The use of composite liners will 

achieve the EPA mission to protect human health and environment for all Americans

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0034-1

Organization1:Geosynthetic Materials Association

Commenter1:Matt Skinner

Commenter Type: Trade Association

Classification: Substantive
241

Comment Excerpt Text:

Our comment to EPA is very simple. We request that EPA mandate the geosynthetic lining of coal ash 

storage facilities using a composite liner system. In the shortest terms, use liners, specifically composite 

liners. Why? Because liners work. 

Concerns over safety regarding CCRs are mitigated if the landfill storage sites are lined with a composite 

liner system of a geomembrane and a geosynthetic clay liner. A composite liner system prevents the 

leachate from entering the environment. Safety concerns regarding surface impoundments are also 

mitigated if the impoundments are lined with a composite liner system. 

The American Society of Civil Engineers does a regular report card on America's infrastructure. For the 

last three report cards, representing over a decade, solid waste has received the highest grade of any 

category. My industry does a good job of taking America's waste and properly storing it and protecting 

the environment. 

The materials, technology, engineers, engineering techniques, the general contractors, and installers who 

can build proper facilities and the regulators and inspectors who assure that the work is done correctly 

exist today. We urge EPA to use what is currently available and working presently. 

Further, our industry has continued to improve over time, and EPA has been a part of that effort. Over the 

years, EPA has commissioned nearly 80 studies on the design and performance of lining systems. We 

specifically call your attention to a 2002 study titled, "Assessment and Recommendations for Optimal 

Performance of Waste Containment Systems." This study contains a great deal of pertinent information 

on how to construct containment systems. Most illustrative for today is a graph, which I will provide, 

charting the leakage rate of different designs over the life cycle of nearly 200 facilities. The -- the life --

the -- the -- the composite liner systems of a geomembrane and a geosynthetic clay liner was 

demonstrated to have the lowest leakage rate over all life cycles, including a near zero leakage rate after 

the facilities were closed and final cover placed. Our materials simply work

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0045-1

Organization1:Geosynthetic Materials Association

Commenter1:Andrew Aho

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Our comment to the EPA is very simple. We request that the EPA mandate that geosynthetic lining of 

coal ash storage facilities using composite lining systems. In the shortest terms, use liners, specifically 

composite liners. 

Why? Because liners work. Concerns of safety regarding CCRs are mitigated if the landfill storage sites 

are lined with composite liner systems of geomembrane and a geosynthetic clay liner. A composite liner 

system prevents the leachate from entering the environment. Safety concerns regarding surface 

impoundments are also mitigated if the impoundments are lined with composite liner systems. 

The American Society of Civil Engineers does a regular report card on America's Infrastructure. For the 

last three report cards representing over a decade, solid waste has received the highest grade of any 

category; my industry does a good job of taking America's waste and properly storing it to protect the 

environment. The materials, technology and the people exist. The engineers, engineering techniques and 

standards exist. The general contractors and installers who can build the proper facilities, and the 

regulators and inspectors who assure the work is done correctly also exist. We urge the EPA to use what 
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exists and is working today. 

Further, our industry has continuously improved over time and the EPA has been a part of that effort. 

Over the years, the EPA has commissioned nearly 80 studies of the design and performance of lining 

systems. We specially call your attention to a 2002 study titled "Assessment and Recommendations for 

Optimal Performance of Waste Containment Systems." That study contains a great deal of pertinent 

information about how to construct containment systems. Most illustrative is a graph charting the leakage 

rate of different designs over the life cycle of nearly 200 facilities. The composite liner system of a 

geomembrane and a geosynthetic clay liner was demonstrated to have the lowest leakage rate over all life 

cycle stages including a near zero leakage rate after the facilities are closed and the final cover is placed. 

Our materials worked

Response: The Agency acknowledges and appreciates the comment. 

Section 4.4.5.1.2 - EPA is interested in data/info that demonstrates under what site conditions an 

alternative liner would be equally protective, including info documenting extent to which such 

conditions currently exist at CCR units (35203)

Total Number of Submissions: 42

Total Number of Comments: 49

Comment Number: TRANS-DEN-0013-3

Organization1:Platte River Power Authority

Commenter1:David Ussery

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Clay liner systems should be an acceptable alternative to the composite liner system for existing facilities. 

Alternative liner designs should be available based on a specific performance standard.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0050-2

Organization1:Xcel Energy

Commenter1:Terry Coss

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Second, we urge EPA to recognize the need for flexibility in liner designs. We operate in states with very 

different climates and geologies, such as Minnesota and Colorado. We've demonstrated to our 

regulators that alternate designs can provide effective protection at lower costs. Any final rule should 

allow for the use of alternate designs that meet applicable performance standards. 

Response: The Agency acknowledges and appreciates the comment. 
243

Section 4.4.5.2 - Stability requirements for CCR SI and dam integrity, including design certification 

by independent PE, weekly inspections, annual re-certification (35203)

Total Number of Submissions: 23

Total Number of Comments: 29

Comment Number: TRANS-CHI-0018-5

Organization1:ALCOA Power Generating, Inc.

Commenter1:Scott Darling

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

ALCOA does agree that there is a need to ensure that surface impoundments are safe in catastrophic 

failure and we recommend that inspections of surface impoundments by certified professional engineers 

knowledgeable with dams and ash ponds be conducted annually.

Response: The Agency acknowledges and appreciates the comment. 

Section 4.5 - Alternative RCRA Subtitle D Approaches (35210)

Total Number of Submissions: 47

Total Number of Comments: 98

Comment Number: TRANS-PIT-0110-3

Organization1:Consol Energy

Commenter1:Steven Winberg

Commenter Type: Other Company

Classification: Substantive

Other Sections: 4.1.3

Comment Excerpt Text:

Our third concern is EPA's proposed Subtitle D regulations to require closure of existing impoundments 

or retrofitting of liners in existing impoundments as a condition of their continued use. Many existing 

impounds have significant remaining useful life, but already contains significant volumes of CCR that 

would make it environmentally and economically infeasible to remove the CCR to install a liner. EPA's 

proposed D Prime option would allow continued use of existing impoundments for the remainder of their 

useful lives. The D Prime option will enable a smoother transition to new facilities and reduce 

disturbances of green field areas.

Response: The Agency acknowledges and appreciates the comment. 

Section 4.5.1 - Subtitle D Prime option: EPA solicits comment on approach/potential modification 

proposed under Subtitle D prime option (35149, 35210); EPA solicits comment on whether Subtitle 

D prime option is protective of HHE (35223)

Total Number of Submissions: 153

Total Number of Comments: 192

Comment Number: TRANS-ARL-0029-1

Organization1:Utility Solid Waste Activities Group

Commenter1:Pam Faggert
244

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Let me say at the outset that USWAG favors the development of federal regulations for CCRs under 

RCRA Subtitle D, nonhazardous waste program. The question for us is not whether to regulate, but how 

to regulate. We have evaluated the alternatives and believe that the Subtitle D prime option is the best 

path forward. Unlike the Subtitle C approach, D prime will establish a robust and environmentally 

protective program for coal ash disposal units without crippling coal ash beneficial use and imposing 

unnecessary regulatory costs on power plants, threatening jobs, and increasing electricity costs. USWAG 

shares the EPA's objective of having a regulatory program that ensures the safe disposal of CCRs and the 

D prime option will meet this objective. 

One of the elements of the D prime option that makes it the preferred option is that it would not require 

the automatic closure of CCR surface impoundments that are operating in a manner that is fully protective 

of human health and the environment. We agree that disposal units that are not fully protective must 

either be upgraded or closed. However, there are many CCR surface impoundments which are perfectly 

safe. There is no reason why these units should not be allowed to continue operating

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0066-1

Organization1:Utility Solid Waste Activities Group

Commenter1:Jim Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

USWAG supports the development of federal regulations for coal ash under RCRA's Subtitle D nonhazardous waste program. Of the three options that EPA has presented, the Subtitle D Prime option with 

appropriate adjustments is the best path forward. Unlike the Subtitle C approach, D Prime which is 

directly enforceable by the states and by citizens will enable EPA to establish environmentally protective 

programs across the states without crippling coal ash beneficial use and imposing unnecessary regulations 

on power plants, threatening jobs and increasing electricity costs

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0090-1

Organization1:Indiana Energy Association

Commenter1:Stan Pinegar

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The Indiana Energy Association submits that the appropriate route for USEPA is to regulate CCRs under 

Subtitle D Prime with modifications. Subtitle D Prime avoids many of the major flaws provided in the 
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alternative Subtitle D option, including what we believe to be an arbitrary requirement to retrofit all 

surface impoundments regardless of the risk to the environment. Subtitle D Prime provides a framework 

for an appropriate platform for ensuring environmentally sound management of CCRs. 

We do believe the Subtitle D Prime option needs to be improved to allow for administration of the 

requirements by state regulatory agencies and through the traditional permitting programs. In addition, the 

schedule for closure of certain CCR disposal units must be reasonably extended to reflect realistic 

challenges of closing large units.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0036-1

Organization1:Utility Solid Waste Activities Group

Commenter1:Pat McCabe

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

USWAG supports the Subtitle D Prime option, with appropriate adjustments, because of the options 

presented by EPA this is the one that best balances clean energy with affordability and reliability. 

USWAG shares EPA's objective of having a federal regulatory program that ensures the safe disposal of 

CCRs. The D Prime option will meet this objective. 

Opponents of a Subtitle D option persist on incorrectly stating that this would merely preserve the status 

quo under which EPA could only issue guidance. This is not the case. Under a Subtitle D option, EPA 

would issue federal regulations specifically designed for CCR disposal units. These regulations would be 

directly enforceable by the states and the public under RCRA's citizen suit provision. EPA would also 

retain its imminent and substantial endangerment authority to take action against any CCR unit that posed 

a risk to human health or the environment. 

We agree that disposal units that are not fully protective must either be upgraded or closed. However, 

there are many CCR surface impoundments which are perfectly safe. The D Prime option will allow for 

development of a regulatory program that meets all objectives. 

A major shortcoming, however, of either the proposed Subtitle D approach is the lack of a mechanism for 

the states to step in and administer the regulations. Clearly, there are state regulatory programs that 

already meet or exceed the proposed Subtitle D standards. States with qualified programs should be given 

the option of administering the federal Subtitle D rules if they so desire

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0061-1

Organization1:Duke Energy

Commenter1:George Everett

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:
246

Duke Energy strongly supports RCRA's Subtitle D nonhazardous program to regulate coal ash residuals, 

and specifically the D Prime Option. Subtitle D would raise the bar nationally for surface impoundment 

safety and achieve the environmental protection we all seek without the exponential costs and damaging 

consequences to the beneficial reuse industry. What would Subtitle D do? It would require electric 

utilities to either remove solids from existing surface impoundments and retrofit them with a composite 

liner or cease receiving residuals within five years of the effective date and close the unit. New 

impoundments could only be constructed with composite liners. Groundwater monitoring would be 

required for all new and old landfills, provide continual assessment of any possible groundwater impacts. 

Utilities have safely managed residuals and hundreds of surface impoundments for decades. In the 

Carolinas, Duke Energy has had a robust monitoring maintenance inspection program for all of its ash 

basins since 1976. This involves daily observations, monthly inspections by plant staff, plus additional 

inspections anytime there are two inches of rain in 24 hours. Additional inspections by a licensed 

professional engineer and inspection every five years by an independent engineer have now been replaced 

due to new legislation in North Carolina with inspections by the North Carolina Dam Safety Program. 

This program was in place well before EPA's inspections currently underway

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0062-4

Organization1:Progress Energy

Commenter1:Barbara Capola

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

EPA's proposal to not regulate CCRs for beneficial use is appropriate for a regulatory program under 

Subtitle D Prime. Most utilities endeavor to market as much of their CCRs as possible. This is better for 

the environment, the land or pond disposal, and provides unique and valued materials for many 

manufactured products, including high-quality cement and wallboard. 

EPA should be aware that the beneficial use marker for CCRs is susceptible to market variations, which 

limits reliance on beneficial uses. Today, the supply of fly ash for cement and concrete and the supply of 

synthetic gypsum for wallboard far exceeds market demand. We need to find ways to increase the 

consumptions of CCRs in these markets. 

There have been many key drivers to reuse volumes. In 2008, over 30 percent of the nearly 61 million 

tons of CCRs used were in other market applications. With the proper engineering design controls and 

quality assurance programs in place, Progress Energy supports other market applications. While we are 

working diligently to beneficially use CCRs, there will remain a significant quantity of CCRs that must be 

disposed of in landfills. 

It should be considered that even with strong efforts to beneficially use CCRs, a permanent disposal 

option at reasonable cost will still be needed.

Response: The Agency acknowledges and appreciates the comment. 
247

Comment Number: TRANS-CLT-0066-1

Organization1:Utility Solid Waste Activities Group

Commenter1:Caroline Choi

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Let me say, at the outset, that the question for us is not whether to regulate, but how to regulate. USWAG 

favors the development of federal regulations for coal ash under RCRA's Subtitle D nonhazardous waste 

program. Of the three options presented by EPA, the Subtitle D Prime option, with appropriate 

adjustments, is the best path forward. Unlike the Subtitle C approach, D Prime will enable EPA to 

establish an environmentally protective program without crippling coal ash beneficial use and imposing 

unnecessary costs on power plants, threatening jobs and increasing electricity costs. Even EPA has agreed 

that hazardous waste regulation will result in excessive and unnecessary regulation. In its final regulatory 

determination for the four large volume coal ash waste streams where EPA concluded that hazardous 

waste regulation was not warranted for coal ash, the agency found that the inflexible nature of the federal 

hazardous waste program would result in excess costs and unduly burdensome regulations for coal ash. 

Let me quote from the portion of EPA's final regulatory determination on this point: A Subtitle C system 

would require coal combustion waste units to obtain a RCRA Subtitle C permit, which would 

unnecessarily duplicate existing State requirements and would establish a series of waste unit design and 

operating requirements for these wastes, which would generally be in excess of requirements to protect 

human health and the environment. Since coal ash sites vary widely in terms of topographical, geological, 

climatological, and hydrological characteristics, for example, depth to groundwater, annual rainfall, 

distance to drinking water sources, soil type, and the wastes potential to leach into the groundwater and 

travel to exposure points is linked to such factors, it is more appropriate for individual states to have the 

flexibility necessary to tailor specific controls to the site or region-specific risks proposed by these wastes. 

We couldn't have said it better, and nothing has changed since issuance of that determination that alters 

this conclusion. 

Moreover, while we agree that steps must be taken to prevent accidents like that which occurred at TVA's 

Kingston facility from happening again, even EPA has found that coal ash being recovered from that site 

can be safely disposed of in a RCRA Subtitle D nonhazardous waste facility. The coal ash from the 

accident that was the impetus for this rulemaking proceeding is, with EPA's explicit approval, being 

safely disposed of in a Subtitle D nonhazardous waste facility. And just last week, the Tennessee 

Department of Health, in conjunction with the Federal Agency for Disease Registry and Toxic 

Substances, issued a final public health assessment concluding that the coal ash from the accident did not 

result in groundwater contamination nor result in ambient releases of ash above levels of concern. 

USWAG supports federal Subtitle D controls for coal ash, including dam integrity standards to help 

prevent future coal ash releases like that which occurred at TVA from happening again

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0131-2

Organization1:Duke Energy

Commenter1:Bill McCabe

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:
248

The Subtitle D Prime option, with appropriate adjustments, best balances clean energy with affordability 

and reliability. Adopting the Subtitle D Prime option will achieve the same long-term environmental 

goals on a more realistic time frame. With a reasonable, science-based approach, we can design federal 

regulations that ensure the safe management of CCRs without significantly raising costs for customers 

and jeopardizing national electric reliability

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0161-3

Organization1:Duke Energy

Commenter1:Allan Stowe

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Another significant flaw is that the environmental groups have not consulted with the very states whose 

programs they allege are deficient. These states contest these allegations and charge that the 

environmental groups have improperly characterized the effectiveness of their state controls. 

Assuming the allegations have any factual basis, USWAG and Duke Energy support a Subtitle D program 

that will involve groundwater monitoring controls specifically designed to detect any contamination 

before it moves off-site. Duke Energy supports federal regulations that will actually address the potential 

threats that the environmental groups allege may occur from these sites. 

If Duke Energy determines an impact to groundwater has occurred at any of its facilities, the appropriate 

regulatory agency is notified and proper next steps taken to ensure public safety. 

In North Carolina, Duke Energy voluntarily initiated ash basin groundwater monitoring more than six 

years ago and has taken substantial measures to reduce or eliminate potential environmental impacts

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0016-1

Organization1:American Electric Power

Commenter1:David Miller

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.3

Comment Excerpt Text:

AEP supports the development of federal regulations for CCRs under RCRA's Subtitle D non-hazardous 

waste program. AEP believes the Subtitle D prime option, if revised appropriately, would be the best path 

forward and establishes an environmentally protective program without destroying CCR beneficial use 

and imposing unnecessary regulatory cost on power plants, threatening jobs, and increasing electricity 

costs for our customers. 

The Subtitle D prime option is preferred because it would not require automatic closure of CCR service 

impoundments that are operating in a manner that is fully protective of human health and the 

environment. AEP agrees that disposal units that are not fully protective must either be upgraded or 
249

closed. However, there are many CCR service impoundments which are perfectly safe and protective of 

the environment. There is no reason why these units should not be allowed to continue operating.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0086-3

Organization1:Entergy Corporation

Commenter1:Mark Bowles

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Entergy has evaluated the alternatives contained in EPA's proposed rule and believes that the Subtitle D 

Prime option is the best solution. Unlike the Subtitle C approach, D Prime will establish a robust and 

environmentally protective program for coal ash storage and disposal units without crippling coal ash 

beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs and increasing 

electricity costs. The Subtitle D Prime option recognizes that existing CCR impoundments with sound 

performance should be allowed to continue to operate. 

However, Entergy feels that the Subtitle D Prime option, as written, requires improvements, including 

allowing for administration of the federal Subtitle D rules for CCRs by state regulatory programs, to 

avoid duplication of federal and state efforts. This would also allow states to enforce compliance through 

a traditional permitting framework. 

Entergy also believes that this option does not limit EPA's enforcement authority since 4010(c) of RCRA 

and similar provisions clearly allow the EPA to oversee state rules regulating solid waste. EPA already 

does this with municipal solid waste landfills and non-municipal solid waste landfills that may receive 

conditionally exempt small quantity generator hazardous waste. 

For these reasons, we ask the EPA to select the Subtitle D Prime option in its final rule. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0013-1

Organization1:Platte River Power Authority

Commenter1:David Ussery

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Platte River prefers the development of federal regulations for CCRs under RCRA Subtitle D, 

nonhazardous waste rules. Additionally, EPA should select the Subtitle D prime option as the appropriate 

course to pursue within the Subtitle D framework because it avoids the absolute requirements to retrofit 

all surface impoundments irrespective of their environmental performance. 

This option correctly recognizes that existing CCR impoundments should be allowed to continue 

operating provided that these units meet applicable groundwater monitoring and structural standards and 

thus are operating in an environmentally sound manner. 
250

The State of Colorado must be given a role in implementation of the Subtitle D option. This will avoid 

duplication with existing state programs and provide the Subtitle D option with the direct permitting 

mechanism the EPA wants. 

EPA already has authority under Section 4010(c) to issue federally enforceable rules under Subtitle D for 

CCRs. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0022-2

Organization1:Intermountain Power Service Corporation

Commenter1:Jon Finlinson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Although a tragedy, the TVA Kingston spill was not caused by the so-called toxicity or any characteristic 

specific to CRR. Any bulk material dammed in the same circumstance would also fail. Poor dam design, 

construction, or maintenance should not be the basis for overreaching regulation.

One of the elements of the D prime option that makes it the preferred option is that it would not require 

the automatic closure of CCR surface impoundments that are designed and operating in a manner which is 

fully protective of human health and the environment, such as at IPP.

We agree that disposal facilities that are not fully protective must either be upgraded or closed. However, 

there are many CCR surface impoundments which are perfectly safe. There is no reason why these units 

should not be allowed to continue operating. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0026-2

Organization1:Arizona Electric Power Cooperative

Commenter1:Patrick Ledger

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

For these reasons, Arizona Electric Power Cooperative supports the development of CCR regulation 

under the Subtitle D prime option. We believe that this regulatory option will best accomplish the 

objectives of ensuring that CCR disposal facilities, like those at Apache Station, will continue to be 

appropriately monitored to ensure they are operated in a safe manner. 

But unlike the Subtitle C approach, the D prime option would establish comprehensive environmentally 

sound regulations for coal ash disposal without imposing unreasonable and unnecessary costs on rural 

electric rate payers.

Response: The Agency acknowledges and appreciates the comment. 
251

Comment Number: TRANS-DEN-0039-1

Organization1:Utility Solid Waste Activities Group

Commenter1:Jim Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Let me say at the outset that USWAG supports the development of federal regulation for CCRs under 

RCRA's Subtitle D nonhazardous waste program. The question is not whether to regulate but now to 

regulate. 

Having evaluated the alternatives proposed, the Subtitle D prime option, with appropriate adjustments, is 

the best path forward. Unlike the Subtitle C approach, D prime will enable EPA to establish an 

environmentally protective program without crippling beneficial use, imposing unnecessary costs on 

power plants, threatening jobs, and increasing electricity costs. 

Opponents of the Subtitle D option persist in incorrectly stating that this would merely preserve the status 

quo under which the EPA can only issue guidance. This is not correct. 

Under the Subtitle D option, EPA would issue federal regulations specifically designed for CCR disposal 

units. These regulations would be directly enforceable by the states and the public under RCRA's citizen 

suit provision and violators would be subject to significant civil penalties. 

EPA would also retain its imminent and substantial endangerment authority to take action against any 

CCR unit that poses a risk to human health or the environment. Ask any utility that has been the subject 

of a RCRA citizen suit, with injunctive relief and civil penalties in the balance, whether it views these 

regulations as mere guidance. These are real regulations with teeth, and it is misleading to suggest 

otherwise

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0049-1

Organization1:Arizona Public Service Company

Commenter1:Scott Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.3

Comment Excerpt Text:

Let me begin by stating that APS supports the development of federal regulations for CCRs under 

RCRA's Subtitle D nonhazardous waste program, and we believe that Subtitle D prime is the appropriate 

option. Not only will this approach create an environmentally protective program for coal ash disposal, it 

will do so without crippling beneficial use and imposing unnecessarily -- unnecessary regulatory costs. 

A concern we have about both Subtitle D and D prime options, however, is the lack of any mechanism for 

states to step in and administer the regulations. Many states, including Arizona, have regulatory programs 

in place that meet or exceed the Subtitle D standards in EPA's proposal. 

So rather than throw the proverbial baby out with the bath water, APS encourages EPA to allow qualified 

state programs to administer federal Subtitle D rules. 
252

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0024-1

Organization1:Haley & Aldrich

Commenter1:Chris Hardin

Commenter Type: Other Company

Classification: Substantive

Other Sections: 4.1.3

Comment Excerpt Text:

Haley & Aldrich supports development of federal regulations for CCRs. And that's defined as coal 

combustion residuals, or in many cases products, under RCRA Subtitle D, non-hazardous waste program. 

We agree with the EPA substantive standards in Subtitle D and Subtitle C are essentially the same. They 

both provide for safe management of coal ash through the use of liner systems, groundwater monitoring 

and corrective action. 

However, Subtitle D will provide a regulatory platform that would accomplish these goals without 

severely impacting CCR beneficial reuse, threatening jobs, and increasing electricity costs for customers 

by imposing unnecessary costs on the utility industry. 

We agree with the EPA that CCR units that are not fully protected must be updated, upgraded, or closed. 

However, CCR impoundments that can be demonstrated to be safe and protective of the environment 

should be allowed to continue operating. We believe that the Subtitle D prime option with appropriate 

adjustments is the best pass forward and will enable EPA to establish an environmentally-protective 

program that meets the objectives of EPA, namely enforceable standards of CCRs, that are protective of 

human health and the environment. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0055-1

Organization1:American Electric Power

Commenter1:Matt Powell

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.3

Comment Excerpt Text:

AEP agrees with the views of the bipartisan group of 165 members of Congress, 45 U.S. Senators, 

majority of states, multiple federal agencies, municipal and local governments, CCR marketers, and 

beneficial users, and many other third parties which have maintained that regulating CCRs under RCRA's 

hazardous waste program is simply regulatory overkill. AEP supports regulation of CCR under RCRA's 

non-hazardous waste Subtitle D program, and specifically under the Subtitle D option. 

The difference between the Subtitle D proposal and D prime is that the latter will not require the closure 

of surface impoundments that are being operated with no significant adverse effect on human health and 

the environment. The closure of surface impoundments, and hence, the conversion of the generating units 

to dry handling, and construction of landfills is a major cost associated with the proposal, and minimizing 
253

this cost by allowing environmentally protective surface impoundments to continue to operate throughout 

their operating life would present the least cost impact to our customers. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0002-1

Organization1:Utility Solid Waste Activities Group

Commenter1:Dan Riedinger

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

As USWAG has testified the last six hearings, the question for us is not whether to regulate CCRs but 

how. We continue to believe, after listening to all testimony, that the Subtitle D Prime option, with 

appropriate adjustments, is the best fast forward. 

USWAG appreciates that there are major differences of opinion regarding the rulemaking, but we're 

concerned that unless EPA is able to forge a consensus position, the question of whether and how to 

regulate CCRs will become a protracted battle in Congress and perhaps the courts. USWAG continues to 

believe, however, that a consensus position can be reached that meets the fundamental objectives of EPA 

and the varying stakeholders; that is, the development of federally enforceable standards for CCRs that 

are protective of human health and the environment. 

As the EPA has pointed out, the substantive standards between the Subtitle C and D approaches are 

essentially identical. Both would provide for the safe management of coal ash through the use of liner 

systems, groundwater monitoring and corrective action. 

Despite the similarities between the two options, opponents of Subtitle D are concerned that the states 

will not vigorously enforce the Subtitle D regulations, thus, they want EPA enforcement authority. 

Opponents of Subtitle C, including USWAG, are concerned that subjecting CCRs to hazardous waste 

regulation will result in excessive regulation, drive up energy costs and cripple beneficial use. USWAG 

believes that there is a path forward that would address the concerns of most of the views reflected in this 

room, and most importantly, will ensure the successful implementation of a protective CCR regulatory 

program in a timely manner. Specifically, we continue to believe that EPA can develop federally 

enforceable Subtitle D controls for CCRs under the same authorities that it has used to develop federally 

enforceable Subtitle D controls for municipal and solid wastes. We believe that EPA can use its 

authorities under the combination of RCRA Sections 4010 and 4005 to direct the states to establish 

Subtitle D controls and permit requirements for CCR disposal facilities and to step in and directly enforce 

those Subtitle D regulations if the states fail to do so. This approach also would be implemented on a 

much quicker time schedule than would any Subtitle C option. It makes no sense to risk the downsides of 

Subtitle C when EPA can achieve essentially the same results without those risks under federally 

enforceable Subtitle D option. 

This rulemaking is too important for EPA not to get it right. Therefore, we urge the agency to be creative 

in using its existing authorities in Subtitle D to issue federally enforceable Subtitle D rules for CCRs. 

Such a result would be a win-win for all involved

Response: The Agency acknowledges and appreciates the comment. 
254

Comment Number: TRANS-LVL-0015-1

Organization1:Duke Energy

Commenter1:Ron Ehlers

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Duke Energy strongly supports developing federal regulations for coal combustion residuals under 

RCRA's Subtitle D non-hazardous waste program. Opponents of Subtitle D say this option is a free ride 

for utilities. However, the reality is Subtitle D significantly raises the bar in terms of retrofitting and 

closing CCR impoundments, including accelerated closure schedules that are impractical and not feasible 

the way they are currently proposed. The Subtitle D proposal requires that unlined impoundments no 

longer be used five years after the rule is finalized. It also requires that impoundments be officially closed 

within 180 days after the impoundment -- the closure begins. Both of these time frames are unrealistic, 

and closing these ponds safely, from an engineering perspective, will be val -- very challenging. 

The cost to comply with requirements to install liners in existing unlined impoundments will drive most 

plants with these types of impoundments to either retire or convert to dry CCR handling. New landfills 

will have to be sited, designed and constructed prior to beginning pond closure. Given the number of new 

landfills that would be required, it is unlikely that these could be readied in time. 

If these were hazardous waste landfills, as required under a Subtitle C hazardous waste program, even 

more time would be needed, assuming that a hazardous waste landfill could successfully be sited and 

permitted. Also, the immediate and significant increase in demand for dry handling systems across the 

country will result in lengthy procurement and installation time frames. This makes the five-year deadline 

impractical and would adversely impact power plant availability. 

The time needed to de-water the unit, construct a cap, to install the necessary storm water controls, while 

complying with our NPDES permits, would also require more than 180 days. The EPA should consider 

closure plans to start within 30 days of the final receipt of waste, but the implementation of the closure 

plans and completion of construction should be determined by best engineering practices. 

The Subtitle D Prime option, with appropriate adjustments, best balances clean energy with affordability 

and reliability. Adopting the Subtitle D Prime option will achieve the same long-term environmental 

goals on a more realistic time frame. With a reasonable, science-based approach, we can design federal 

regulations that ensure the safe management of CCRs without significantly ra -- raising the cost for 

customers and jeopardizing national electric reliability

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0044-1

Organization1:Duke Energy Indiana

Commenter1:Bryan Walsh

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Duke Energy Indiana supports the Subtitle D Prime option, with appropriate adjustments. This is because 

of the three options presented by EPA, this is the one that best balances clean energy with affordability 

and reliability. Duke Energy shares EPA's objective of having a federal regulatory program that ensures 

the safe disposal of CCRs. The D Prime option will meet this objective. 
255

Opponents of the Subtitle D option persist on incorrectly stating that it would merely preserve the status 

quo under which EPA could only issue guidance. This is not the case. Under a Subtitle D option, EPA 

would issue federal regulations specifically designed for CCR disposal units. These regulations would be 

directly enforceable by the states and the public under RCRA's Citizen Act Provision. EPA would also 

retain its imminent and substantial endangerment authority to take action against any CCR unit that posed 

a risk to human health or the environment. 

We agree that the disposal units that are not fully protective must be upgraded and must be regulated. 

However, there are many CCR surface impoundments which are perfectly safe. The D Prime option will 

allow for development of a regulatory program that meets both of these objectives

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0045-5

Organization1:Duke Energy

Commenter1:Debbie Nispel

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Duke Energy supports a Subtitle D program that will involve groundwater monitoring controls 

specifically designed to detect any contamination from the CCR waste management units before 

contamination moves offsite. If Duke determines an impact to groundwater has occurred at one of if -- its 

facilities, the appropriate federal or state regulatory agencies are notified, and we work with those 

regulators in determining the appropriate steps to be taken to remediate the impact to groundwater. 

Further, Duke has taken measures to reduce or eliminate any known risks for potential future impacts at 

the other Duke facilities

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0054-1

Organization1:American Electric Power

Commenter1:Dana Sheets

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.3

Comment Excerpt Text:

. AEP supports regulation of CCRs under RCRA's non-hazardous waste Subtitle D program, and 

specifically under the Subtitle D Prime option. The difference between Subtitle D and D Prime is that the 

latter will not require the closure of surface impoundments that are being operated with no significant 

adverse effect on human health and the environment. 

The closure of surface impoundments and, hence, conversion of the generating units to dry ash handling 

and construction of landfills is a major cost associated with the proposal. 

And minimizing this cost by allowing environmentally-protective surface impoundments to continue to 

operate throughout their operating life will present the least-cost impact to our customers. 
256

AEP does not support, nor does it think, that the science justifies, regulation of CCRs under the RCRA 

Subtitle C hazardous waste rules. The requirements for liners, groundwater monitoring, surface 

impoundment integrity, and corrective action are essentially the same under both Subtitle C and Subtitle 

D, thereby providing the same level of environmental protection. 

It appears that the major hurdle for EPA concerning regulation under Subtitle D as opposed to Subtitle C 

is a perceived lack of federal enforcement authority under Subtitle D. The EPA already has Subtitle D 

enforcement authority through the provisions of RCRA Section 4010 and 4005, just as it did relative to 

the Subtitle D rules for Municipal Solid Waste Landfills. 

Under this process, the states can be afforded the opportunity to operate the Subtitle D program either by 

demonstrating that the state rules already are as stringent as federal Subtitle D rules or by adopting 

additional regulations that include the minimum federal standards. If state programs do not adopt the 

minimum federal standards, the US EPA could step in with direct enforcement authority. 

This is a win-win situation for all involved. The EPA has the Subtitle D enforcement authority that it 

wants, and the states will be afforded the opportunity to run the program. 

In addition, the stigma and liabilities associated with CCR reuse applications under the hazardous waste 

Subtitle C option that would, in effect, kill the ash-utilization industry, along with the many thousands of 

associated jobs, would be avoided. 

Finally, under Subtitle D, cost impacts to utility customers would be minimized while protecting human 

health and the environment.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0055-4

Organization1:Vectren Corporation

Commenter1:Angila Retherford

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.3

Comment Excerpt Text:

Vectren supports EPA's objective of having a federal regulatory program that ensures the safe disposal of 

CCRs. As a result, Vectren supports the Subtitle D Prime option with appropriate adjustments. Because of 

the three options presented by EPA, this is the option that best balances clean energy with affordability 

and reliability. 

We believe that this regulatory option will best accomplish the objective of ensuring that CCR disposal 

facilities will be appropriately monitored to ensure that they're operated in a safe and environmentallysound manner, and continue to fully support and incentivise the beneficial reuse of CCRs. But unlike the 

Subtitle C approach, the D Prime option would establish comprehensive regulations for coal-ash disposal 

without imposing unreasonable and unnecessary costs on electric rate payers. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0006-3

Organization1:PPL Corporation

Commenter1:Craig Shamory
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Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

PPL strongly opposes federal Subtitle C regulation, and instead requests that EPA regulate CCR's under 

the Subtitle D prime option, including a modification that integrates with current state regulatory 

programs such as Pennsylvania's Residual Waste and Dam Safety Regulations. This approach will create 

a reasonable and effective regulatory program that protects the environment, retains options for beneficial 

use, and preserves jobs, while not adversely impacting our economy.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0056-1

Organization1:Midwest Coal Ash Association

Commenter1:Gary Haney

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 4.1.3

Comment Excerpt Text:

We favor the development of federal regulations of coal ash under Subtitle D, and specifically believe 

that the Subtitle D Prime option is the best choice. Unlike Subtitle C, D Prime will establish an 

environmentally protective program for coal ash disposal units without crippling beneficial use and 

imposing unnecessary regulatory costs on power plants, threatening jobs and increasing electricity costs. 

The Prime D option will include impoundment design, inspection and maintenance requirements that 

should prevent any future TVA type failures.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0059-1

Organization1:American Electric Power

Commenter1:Steven Orenchuk

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2 4.1.3

Comment Excerpt Text:

It is my professional opinion that the US EPA's proposed regulation of CCRs under the RCRA Subtitle C 

hazardous waste rules is excessive and unwarranted. The correct approach for US EPA to take is to 

regulate CCRs under the Subtitle D Prime option. 

Regulation of CCRs under the RCRA Subtitle C hazardous waste rules is not worth the incremental 

environmental gain versus the extreme financial costs which will accompany this level of regulation. It is 

necessary that in any type of rulemaking, U.S. EPA is cognizant of the broad economic impacts which 

there will be in response to such an undertaking. Protection of human health and the environment from 

the disposal of CCRs regulated under the Subtitle D Prime option is more than acceptable considering 

the potential threat that these materials pose. In addition to providing the necessary protection of 

human health and the environment, the Subtitle D Prime option will bear the least cost on the end user 

of coal-fired electric generation, i.e. customers like you and I. 

Since the promulgation of CCR regulations under the Subtitle D Prime option affords the necessary level 
258

of protection of human health and the environment without imposing the unnecessary costs associated 

with over regulation, how can U.S. EPA in good conscience propose a set of regulations as irresponsible 

as the Subtitle C hazardous waste regulations for managing CCR disposal? This type of action is illogical 

and represents the wasteful allocation of the American public's financial resources. 

Response: The Agency acknowledges and appreciates the comment. 

Section 4.6.1.1 - 180-day effective date after promulgation of final rule (35210, 35195-35196)

Total Number of Submissions: 10

Total Number of Comments: 10

Comment Number: TRANS-CLT-0131-1

Organization1:Duke Energy

Commenter1:Bill McCabe

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.6.1.2

Comment Excerpt Text:

Duke Energy strongly supports developing federal regulations for coal combustion residuals under 

RCRA's Subtitle D non-hazardous waste program. Opponents of Subtitle D say this option is a free ride 

for electric utilities. However, the reality is Subtitle D raises the bar considerably in terms of retrofitting 

and closing CCR impoundments, although the accelerated closure schedules are impractical and likely 

not possible the way currently proposed. 

The Subtitle D proposal requires that unlined impoundments no longer be used five years after the rule 

is finalized. It also requires that impoundments be officially closed within 180 days after closure of the 

impoundment begins. Both of these time frames are unrealistic, given that closing these ponds safely 

from an engineering perspective will be very challenging. 

The cost to comply with the requirements (inaudible) unlined impoundments will drive most plants with 

these impoundments to either retire or convert to dry CCR handling systems at landfill disposal facilities. 

New landfills will have to be sited, designed, and constructed prior to beginning the pond closure. Given 

the number of new landfills that will be required, it is unlikely that those could be ready in time. 

If these were hazardous waste landfills, as required under Subtitle C hazardous waste program, even 

more time would be needed. Assuming that a hazardous waste landfill could be successfully sited and 

permitted. 

Also, the immediate and significant increase in demand for dry handling systems across the country will 

result in lengthy procurement and installation time frames, making the five-year deadline impractical, 

while impacting power plant availability. 

The requirement to close surface impoundments within 180 days is also not realistic given the time 

needed to de-water the unit, construct the cap, and to install the necessary stormwater controls while 

complying with the NPDES permits. 

EPA should consider closure to start within 30 days of final receipt of waste, but the implementation of a 

closure plan and completion of construction should be determined by best engineering practices

Response: The Agency acknowledges and appreciates the comment. 

Section 4.6.1.2 - Within 5 years after rule’s effective date for existing CCR LFs and SIs for liner 

requirements (35210)
259

Total Number of Submissions: 20

Total Number of Comments: 25

Comment Number: TRANS-CLT-0131-1

Organization1:Duke Energy

Commenter1:Bill McCabe

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.6.1.1

Comment Excerpt Text:

Duke Energy strongly supports developing federal regulations for coal combustion residuals under 

RCRA's Subtitle D non-hazardous waste program. Opponents of Subtitle D say this option is a free ride 

for electric utilities. However, the reality is Subtitle D raises the bar considerably in terms of retrofitting 

and closing CCR impoundments, although the accelerated closure schedules are impractical and likely not 

possible the way currently proposed. 

The Subtitle D proposal requires that unlined impoundments no longer be used five years after the rule is 

finalized. It also requires that impoundments be officially closed within 180 days after closure of the 

impoundment begins. Both of these time frames are unrealistic, given that closing these ponds safely from 

an engineering perspective will be very challenging. 

The cost to comply with the requirements (inaudible) unlined impoundments will drive most plants with 

these impoundments to either retire or convert to dry CCR handling systems at landfill disposal facilities. 

New landfills will have to be sited, designed, and constructed prior to beginning the pond closure. Given 

the number of new landfills that will be required, it is unlikely that those could be ready in time. 

If these were hazardous waste landfills, as required under Subtitle C hazardous waste program, even more 

time would be needed. Assuming that a hazardous waste landfill could be successfully sited and 

permitted. 

Also, the immediate and significant increase in demand for dry handling systems across the country will 

result in lengthy procurement and installation time frames, making the five-year deadline impractical, 

while impacting power plant availability. 

The requirement to close surface impoundments within 180 days is also not realistic given the time 

needed to de-water the unit, construct the cap, and to install the necessary stormwater controls while 

complying with the NPDES permits. 

EPA should consider closure to start within 30 days of final receipt of waste, but the implementation of a 

closure plan and completion of construction should be determined by best engineering practices

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0013-2

Organization1:Platte River Power Authority

Commenter1:David Ussery

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

The closure period under Subtitle D option is too short. Five years is not adequate time to close surface 

impoundments that are currently in use according to logistic, procedural, and operational concerns.

Response: The Agency acknowledges and appreciates the comment. 
260

Section 4.6.1.4 - EPA solicits comment on appropriate amount of time for existing CCR LFs and SIs 

to close if cannot make a showing that unit can be operated safely in floodplain or unstable area as 

well as comments on measures that could help address potential for inadequate disposal capacity; 

EPA is proposing 5 years after rule’s effective date with potential 2-year extension for maximum of 

7 years (35199, 35223)

Total Number of Submissions: 47

Total Number of Comments: 58

Comment Number: TRANS-CLT-0012-3

Organization1:

Commenter1:Stephan Bray

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.4.1.4.2

Comment Excerpt Text:

Thirdly, the proposed timeline for closure of existing ash impoundments under both options is too short. 

Both the hazardous and nonhazardous proposal generally require impoundments to be closed within 5 

to 7 years. Some sites may choose to close the impoundments by de-watering and capping over the inplaced waste. Whereas, other sites may find it more appropriate to remove the waste and place it in 

lined landfills. 

Based on my experience, the proposed allowable time may not be long enough to adequately 

investigate, plan, permit and execute closure. These concerns are primarily warranted for those 

impoundments for which appropriate closure includes removal and landfilling of millions of cubic yards 

of waste.

Response: The Agency acknowledges and appreciates the comment. 

Section 4.6.1.5 - EPA solicits comment on whether timeframes for closure of existing SIs should be 

different under Subtitle D and/or not consistent with timeframes proposed under Subtitle C (35202)

Total Number of Submissions: 11

Total Number of Comments: 13

Comment Number: TRANS-DAL-0069-2

Organization1:PMI Ash Technologies

Commenter1:Kyle Crake

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

PMI Ash supports EPA's management of CCRs under RCRA's Subtitle D non-hazardous waste program. 

This would provide uniform rules and higher standards for the utility and CCR industries. Implementation 

of the Subtitle D option will protect human health and the environment with the same standards and 

without the negative impacts caused by Subtitle C. 

The only issue is whether the standards can be enforced uniformly. Rather than a three- to four-year 

implementation as proposed by EPA's Subtitle D option, we suggest that they be able to be enforced more 

quickly via a legislative solution that would give the EPA full authority to regulate CCRs similar to 

municipal solid waste. 

PMI Ash supports strong standards via Subtitle D of RCRA by enacting federal enforcement authority 
261

such as recommended by the congressional Research Service entitled "Regulating Coal Combustion 

Waste Disposal: Issues for Congress."

Response: The Agency acknowledges and appreciates the comment. 

Section 4.8 - Other

Total Number of Submissions: 10

Total Number of Comments: 19

Comment Number: TRANS-KNX-0065-1

Organization1:Southern Alliance for Clean Energy (spoke as employee and citizen)

Commenter1:Katherine Stokes

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I work at the Southern Alliance for Clean Energy. I'm also a graduate of the University of Tennessee civil 

engineering department. 

In college, I studied concrete strength. We had a lab where we would make our own concrete for testing, 

mixing aggregate with cement and water and sometimes adding fly ash. The fly ash came as a dry dust. 

We scooped it out of a bag. You wouldn't want to breathe in the particles, but the ash was well contained. 

This dry, treated and bagged version of coal ash is more similar to a household chemical waste that is 

suggested in EPA Subtitle D. However, this is not the type of coal ash we're talking about today. In fact, 

under Subtitle C, coal ash that is recycled for other uses such as concrete is exempt from the regulations. 

Response: The Agency acknowledges and appreciates the comment. 

Section 5.2 - Recent EPA research on constituent leaching from CCRs (35139-35142)

Total Number of Submissions: 22

Total Number of Comments: 30

Comment Number: TRANS-LVL-0049-1

Organization1:Boulding Soil-Water Consulting

Commenter1:Russell Boulding

Commenter Type: Other Company

Classification: Substantive

Other Sections: 6.3.1

Comment Excerpt Text:

In my limited remaining time I would like to focus on new data to supplement the December 2009 EPA 

report by Kosson and others, a report which finally presented results of leaching tests that more accurately 

reflect the potential to contaminate groundwater. 

Even with my familiarity with the inadequacy of the TCLP and other leachate tests that have been used to 

argue that coal combustion waste is benign material, I was startled by the results in this report that 

showed maximum concentrations of arsenic, antimony, chromium and selenium far above the maximum 

found in previously reported tests. 

The main point I would like to make here is that even these more accurate leaching tests underestimate 

the potential for lead contamination for coal com -- from coal combustion waste. 
262

In Attachment C I have provided a list of nine disposal sites in the recent report by the Environmental 

Integrity Project where measured concentrations of lead in groundhouse -- groundwater were higher than 

the maximum reported in the Kosson report. 

One private drinking water well was 51 times higher than the highest leachate value in that test. 

The failure of the current patchwork regulatory approach by states to control the harm to human health 

and the environment has been eloquently and abundantly shown by the testimony of citizens who have 

been directly affected. And as a scientist in talking with this damage cases it was just -- it just brought it 

home to me in -- in a -- in a way that I'd never felt before. 

The science is also clear that the Subtitle C regulatory option is both appropriate and necessary.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0094-1

Organization1:Environmental Integrity Project

Commenter1:Sam Flenner

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

In 1999, the US EPA -- EPA Science Advisory Board determined that it was of single most importance 

that EPA improve leach test procedures, validate them in the field, and then implement them. In 2006, the 

Natural Research Council and the US EPA Science Advisory Board determined that the -- that the test 

called TCLP, for the antonym, used by most states to measure the toxicity of coal ash is not accurate. 

In December of 2009, EPA reported that a new more-accurate leach test measured arsenic from coal ash 

at over three times the hazardous waste threshold, and selenium at 29 times the hazardous waste 

threshold. 

This means that all tests presently used voluntarily under Subtitle D by coal ash disposal- site operators 

and state regulars -- re -- regulators, to measure the toxicity of coal ash leachate from the disposal sites are 

inaccurate. This means that every time a coal utility or a state legislature concludes that coal ash leachate 

does not trigger hazardous waste thresholds, they base their conclusion on a testing procedure that they 

know is not accurate.

Response: The Agency acknowledges and appreciates the comment. 

Section 5.3.2 - Bottom ash

Total Number of Submissions: 4

Total Number of Comments: 5

Comment Number: TRANS-CLT-0007-1

Organization1:Carolina Stalite and Johnson Concrete

Commenter1:Jerry Liner

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 11.1
263

Comment Excerpt Text:

The coal ash different byproducts must call for different regulations based on the material itself and the 

end use. The real issue at hand for this group of professionals and manufacturers is the bottom ash 

material, having the potential of being a health and safety concern when used in the manufactured 

cement- type products. 

The bottom ash material does not have construction standards such as ASTM like fly ash. While fly ash is 

contained in the cement paste when used, bottom ash is not contained when used as an aggregate to 

manufacture concrete block and other manufactured cement products, leaving the waste material exposed 

on the surface for leaching. Please review the pictures submitted. 

Unlike fly ash that is used at a very small amount by percentage of the cement weight, the bottom ash is 

used at 65 percent-plus of total weight of mix of manufacturing concrete block, making a product that we 

believe will release the hazardous materials. 

As EPA reviews all of the collected information, we would like to encourage the additional regulations 

that sets controlled standards on the reuse and non-use of the reused materials based on the type of waste 

material and how it may be used. We all remember the Asbestos issues and how long it took to show its 

ugly head. Let's not allow the bottom ash waste material to gain ground in construction products and 

spread and repeat this type of history.

A commonsense approach to the big picture of the coal ash byproducts regulations could be considered as 

submitted with this statement: One, regulate the pits. Regulate the use of fly ash. Regulate bottom ash as a 

hazardous material that cannot be used in concrete block, and regulate the transportation of all the 

materials.

Response: The Agency acknowledges and appreciates the comment. 

Section 5.3.3 - Boiler slag

Total Number of Submissions: 18

Total Number of Comments: 25

Comment Number: TRANS-ARL-0009-1

Organization1:Boiler Slag Consortium

Commenter1:Sean Todd

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

We want to emphasize that coal boiler slag is a unique byproduct of CCBs. It is different than the other 

three major categories. It is -- as the smallest category, it has unique physical and chemical 

characteristics. It's squashed in water at the bottom of the furnace and is, therefore, vitrified. It is an inert 

material; it has a Mohs Scale hardness of 6+ and extremely low leachability. Because it is 

environmentally benign, the boiler slag is hot and in high demand for a number of consumer products. 

More than 90 percent of coal boiler slag is beneficially used and recycled. For example, 80 percent of all 

roofing shingles in this country contain boiler slag. I would like to leave with you four main points this 

morning. 

One, EPA's own technical reports and scientific studies have declared slag to be nonhazardous in four 

different reports since 1980. These four rulings demonstrate that slag does not meet the statutory 

definition of hazardous waste or, by the criteria established to list a waste. The vitrified characteristic of 

slag makes it virtually inert and environmentally benign.
264

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0051-2

Organization1:Boiler Slag Consortium

Commenter1:Sean Todd

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

We will submit for the public record the state of New Hampshire in August 2005; their Department of 

Environment Services conducted a technical review of boiler slag and approved its use as a base material 

for the construction of driveways, roads, parking lots, asphalt emulsions and structural film. We'll give 

that to you and to the public docket. Their laboratory report finds the smallest particle size of boiler slag 

found. They did a chemical analysis for arsenic, cadmium, lead, and mercury, and four other constituents. 

They found concentrations to be between less than 0.01 and 0.5 milligrams per liter concentration. Not 

meeting the definitions of hazardous waste.

Response: The Agency acknowledges and appreciates the comment. 

Section 5.4 - New CCR constituent leaching data/info: EPA solicits additional data that are 

representative of CCR constituents in SI or LF leachate (from literature, state files, industry or 

other sources) that EPA has not identified and should be used in evaluating risks presented by land 

disposal of CCRs (35146, 35222)-code under 5.4 subissues

Total Number of Submissions: 17

Total Number of Comments: 30

Comment Number: TRANS-CHI-0148-1

Organization1:Lafarge North America

Commenter1:Mitch Nowicki

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

The USEPA draft appears to convey a bias toward listing CCPs as hazardous or special wastes and I find 

nothing appropriate in this bias. The fact that CCBs are not inert is no basis for the listing. Hazardous 

waste determinations are most commonly made based on the measured toxicity of leachable constituents. 

Laboratory tests have been employed for decades to measure leaching potentials and attendant 

environmental risk. As a whole, CCB's test results demonstrate this risk to be low. 

While debate continues over test methods, I call your attention to a real world demonstration of CCB 

leaching characteristics at Lafarge's Lewis University Airport project near Romeoville, Illinois. This 

seven-year project utilized 1.6 million tons of CCBs to provide the structure upon which a 6,300 foot 

runway has been constructed. A double liner of leachate collection system were incorporated into the site 

design. Leachate analyses from this facility demonstrate compliance with Class 1 groundwater standards 

for nearly all tested parameters with the exceptions limited to boron, dissolved solids and sulfates. These 

are not reflective of hazardous materials.

Response: The Agency acknowledges and appreciates the comment. 
265

Section 5.5.5.1 - EPA solicits detailed info on issue of existing Subtitle C landfill capacity for CCR 

disposal, e.g., volume of CCRs now going off-site for disposal; nature of off-site disposal sites such 

as commercial vs. utility-owned, and amount of land available on utility sites for additional disposal 

capacity (35158)

Total Number of Submissions: 180

Total Number of Comments: 216

Comment Number: TRANS-ARL-0058-4

Organization1:PPL Corporation

Commenter1:Craig Shamory

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Both Pennsylvania and Montana do not have any commercial Subtitle C landfills. Therefore, PPL would 

either have to permit on-site Subtitle C landfills, which is an uncertain proposition, or be forced to find 

among the very few limited numbers that exist across the nation a facility that would have the capacity 

and permits to accept such large volumes of waste, another uncertain proposition.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0022-3

Organization1:MidAmerican Energy Holdings Company on behalf of MidAmerican Energy Company

Commenter1:Cathy Woolums

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Forcing companies to make a difficult choice of limiting their liability by disposing of materials offsite 

creates additional concerns. Existing permitted hazardous waste landfill capacity is extremely limited, 

particularly in the Midwest. There is only one known Subtitle C permitted facility in any state adjacent to 

Iowa. Based on information from the operator of that landfill, capacity at the facility, if it accepted coal 

combustion waste, would be consumed within six months to a year, an untenable situation as far as we're 

concerned. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0094-4

Organization1:Wisconsin Department of Natural Resources

Commenter1:Ann Coakley

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

Wisconsin utilities produce a total of two million tons of CCR materials each year. We currently do not 
266

have any hazardous waste landfills in the State of Wisconsin. If this is passed under Subtitle C, we would 

need to site several, probably up to ten hazardous waste landfills in the state, or transport it out of state at 

considerable expense. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0131-4

Organization1:Iowa Utility Association

Commenter1:Mark Douglas

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

You already heard that from many businesses today. Of particular concern to our state is that the 

elimination of beneficial use applications would clearly and quickly overwhelm existing Subtitle C 

disposal capacity. There are no existing hazardous waste landfills in Iowa and only one in the six states 

that are contiguous to Iowa. Our companies will be forced to transport CCR great distances at great cost 

to just a few of the permitted sites in the Midwest and the West. Most certainly, the available capacity for 

additional CCR at those sites would be quickly overwhelmed.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0011-3

Organization1:Tampa Electric Company

Commenter1:Randy Melton

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 10.4.3 9.5.2

Comment Excerpt Text:

Listing CCRs as a special class of hazardous waste will create an immediate stigma on these valuable 

products, resulting in drastic declines in sales. 

Onsite stockpiles of CCRs will grow at an alarming rate. Offsite disposal will skyrocket and landfills 

nationwide will be stressed beyond their capacities. Shipping of CCRs for disposal will result in increases 

in fuel usage and tailpipe emissions. Power generation costs will increase in response to burdensome 

equipment retrofits and operating requirements. Utility customers throughout the country will suffer 

significant rate increases. Many environmental benefits from the beneficial reuse of CCRs, including 

reduced demand for mined minerals, reduced consumption of valuable landfill space, and reduced 

greenhouse gas emissions, will diminish.

Response: The Agency acknowledges and appreciates the comment. 
267

Comment Number: TRANS-CLT-0012-1

Organization1:

Commenter1:Stephan Bray

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Second, the hazardous Subtitle C option is not practicable, as it will result in a shortfall of landfill 

disposal capacity. And currently, there is very limited regional and national commercial hazardous waste 

landfill disposal capacity. Permitting a nonhazardous landfill can take upwards of 5 to 10 years to 

complete, while permitting a hazardous waste landfill can nearly be an impossible task due to opposition 

and legal challenges, as witnessed by the fact that there are only 18 commercial hazardous waste landfills 

nationwide, and none in North and South Carolina.

Given the proposed timeline and my experience permitting landfills, it is foreseeable in the near future 

that there will be a period where there simply isn't any available hazardous waste disposal capacity under 

the Subtitle C option. This situation will limit new electricity production, as well as limit the option for 

landfilling legacy waste currently stored in existing ash impoundments. 

And in comparison, while Subtitle D landfill capacity is not infinite, it's much more readily available and 

could likely be used as a contingency to ensure uninterrupted power generation and waste disposal 

capacity while utilities permit the additional Subtitle D landfill capacity.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0026-3

Organization1:Georgia Power

Commenter1:Chuck Huling

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

Third, Georgia Power opposes the regulation of CCBs as a hazardous waste. After 20 years of study, EPA 

concluded in 1993 and in 2000 that CCBs did not warrant hazardous waste regulation. This regulation, 

even with an exemption, unravels decades of progress of beneficial reuse. CCBs are one of America's 

recycling success stories with approximately 43 percent diverted annually from landfills. 

Regulation under hazardous waste requirements will be cost prohibitive without a corresponding benefit 

to the environment. In addition, proper disposal of hazardous waste may be impossible for the foreseeable 

future because of the cost and lack of permitted disposal capacity. Any mandatory phase out of CCB wet 

management practices would exacerbate these concerns.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0030-4

Organization1:Santee Cooper

Commenter1:Jay Hudson
268

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 9.5.2

Comment Excerpt Text:

The Subtitle C option would overwhelm existing Subtitle C disposal capacity increasing by 50 fold the 

volume of hazardous waste disposed on annually in landfill units. The shortfall is especially severe in 

South Carolina, since no hazardous waste disposal facilities in the state could receive any of these CCRs. 

A significant amount of the CCRs produced by Santee Cooper under the Subtitle C option would have to 

be hauled long distances for disposal, thus increasing road traffic, greenhouse gas emissions, and 

drastically increasing disposal costs when environmental responsible disposal and recycling options are 

available at a much lower cost. 

For those reasons, the Subtitle C option will cause an undue burden without environmental benefit.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0062-3

Organization1:Progress Energy

Commenter1:Barbara Capola

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

There are 21 commercial hazardous waste landfills currently operating nationwide, and the last hole was 

permitted many, many years ago. The remaining capacity would quickly be consumed if such a landfill 

was required. In addition, transportation and infrastructure would see unparallel changes due to increased 

volumes of material movement. Nonetheless, reliable and nearby hazardous waste landfills must be 

available if Subtitle C is applied to CCRs.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0119-1

Organization1:SCANA Corporation

Commenter1:Tom Effinger

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Given the complexities and contentious natures of a hazardous waste landfill, that time frame could be 

doubled if even allowed at all. There are no hazardous waste landfills in South Carolina. 

With public opposition and legal challenges to new landfills the ability to successfully permit and 

construct new hazardous Subtitle C landfills may be virtually impossible, resulting in situations where 

coal-fired plants would need to cease operations, depriving residential and business customers of 

affordable power. The state environmental protection agencies from around the nation have repeatedly 

cautioned EPA that the Subtitle C approach will overwhelm existing hazardous waste disposal capacity 
269

and further burden strained state budgets and staff resources. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0016-3

Organization1:American Electric Power

Commenter1:David Miller

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

In addition, AEP has ash disposal facilities that do not meet the current siting criteria for hazardous waste 

disposal facilities and, therefore, would not be able to continue to receive CCR should EPA choose to 

regulate CCRs as a hazardous waste under Subtitle C of RCRA. The power plants that these facilities 

serve would have to transport CCRs great distances to locations that meet the hazardous waste disposal 

facility siting criteria or commercial facilities. There is much concern that sufficient commercial 

hazardous waste landfill capacity wouldn't be available and be depleted quickly. This would dramatically 

increase disposal costs in our customers' electricity rates without environmental benefit.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0097-4

Organization1:NRG Energy

Commenter1:Jeffrey Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

Our coal ash users and recyclers have indicated that any hazardous waste label on coal ash could end 

beneficial use practices due to -- to liability and marketing concerns. This would result in greater volumes 

of coal ash generated at the NRG plants having to be managed and unnecessarily fill up landfill space 

rather than sold for beneficial use. In addition, the cement industry will have to make up for the loss of 

recycled coal ash resulting in a net increase of carbon dioxide emissions.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0119-2

Organization1:

Commenter1:Gary Gibbs

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.2
270

Comment Excerpt Text:

Unfortunately, the EPA's proposed rule could severely cripple this shining success and have the resulting 

effect of driving up the cost of concrete and causing fewer transportation projects to be built across this 

country. Instead of being recycled, this coal ash will instead go into industrial landfills. Countless new, 

large landfills will be required to bury this much ash.

I urge you to reconsider your approach and not adopt the rules that would further stigmatize coal ash. It's 

far too valuable of a resource to simply bury. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0023-3

Organization1:Flashfill Services

Commenter1:Doug Hernandez

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Nevertheless, I believe that if you do, in fact, classify coal fly ash as a hazardous material, you will be 

creating a potentially larger problem due to the fact that virtually all coal fly ash will wind up being 

required to be disposed of in designated landfills.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0049-3

Organization1:Arizona Public Service Company

Commenter1:Scott Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

I'd also like to comment on our opposition to the Subtitle C option and point out that regulating CCRs as 

hazardous waste would have a devastating impact on beneficial use, driving more ash into hazardous 

waste landfills and very quickly overwhelming existing disposal capacity. 

There are currently no permitted hazardous waste landfills in Arizona. Consequently, a Subtitle C 

regulatory program would place an enormous burden on the state to permit adequate capacity to handle 

the volumes of CCRs generated in meeting the state's energy needs. 

The last attempt to permit a hazardous waste landfill in Arizona drew opposition, and the landfill was 

never allowed to operate. If the state is unable to permit new landfills, the state's utilities would be forced 

to ship CCRs out of state, assuming capacity was available elsewhere. 

Response: The Agency acknowledges and appreciates the comment. 
271

Comment Number: TRANS-DEN-0050-5

Organization1:Xcel Energy

Commenter1:Terry Coss

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

My final comment concerns the negative impact of RCRA C rule on disposal capacity. The commercial 

disposal facilities we rely on today would no longer be able to accept our ash, and the notion that anyone 

can quickly and easily build new disposal capacity is simply not realistic. 

In one case, we've been trying to build a new ash landfill for over 10 years. Despite having an approved 

environmental impact statement from the state confirming that both the site and design are safe, the 

project continues to be delayed due to local opposition.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0029-3

Organization1:Progress Energy

Commenter1:Rob Reynolds

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

There are 21 commercial hazardous waste landfills currently operating nationwide and the last one was 

permitted many years ago. The remaining capacity of these facilities would quickly be consumed if use of 

such a landfill was required. In addition, transportation and infrastructure requirements would see 

unparalleled changes due to increased volumes of material movement to such facilities. 

Nonetheless, reliable and nearby hazardous waste landfills must be available if Subtitle C is applied to 

CCRs. The EPA's proposal to not regulate CCRs that are beneficially used is appropriate for a regulatory 

program under Subtitle D. Most utilities endeavor to market as much of their CCRs as possible. This is 

better for the environment than land or pond disposal and provides unique and valued materials for many 

manufactured products, including high quality cement and wallboard. 

The EPA should be aware that the beneficial use market for CCRs is susceptible to market variations 

which limit reliance on beneficial uses. Today the supply for fly ash for cement and concrete and the 

supply of synthetic gypsum for wallboard far exceeds market demand. We need to find ways to increase 

the consumption of CCRs in these markets. Over the past couple of decades, CCR uses in markets other 

than these have been key drivers to increasing reuse volumes. 

In 2008, over 30% of the nearly 61 million tons of CCRs used were in other market applications. 

MR. HOFFMAN: I'm sorry. Your time is up. 

MR. REYNOLDS: Thank you. 

(Applause) 

MR. REYNOLDS: With the proper engineering design, controls and quality assurance programs in place, 

Progress Energy supports other market applications. While we are working diligently to beneficially use 

CCRs, there will remain a significant quality of CCRs that must be disposed of in landfills. It should be 

considered that even with strong efforts to beneficially use CCRs, a permanent disposal option at a 

reasonable cost will still be needed. 
272

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0039-2

Organization1:SEFA Group

Commenter1:Burt Nunn

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Our industry is environmentally-friendly, and while some environmental extremists seem to be in favor of 

this Subtitle C designation, they fail to realize that if fly ash is designated as hazardous, we'll be creating 

an environmental problem, not eliminating one. The millions of tons of coal combustion products that are 

currently being recycled and used beneficially in concrete products will be redirected to landfills and 

storage sites that are already overstressed.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0005-2

Organization1:Indianapolis Power & Light

Commenter1:Dwayne Burke

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Thirdly, one end -- item that has not been brought up, at least today, is, in Indiana, for example, there is 

no hazardous waste landfill space. We have one hazardous waste landfill in the State of Indiana. There are 

great questions whether you could site another one. And then you're getting into the out of state hazardous 

waste issue, which would be very problematic we believe. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0006-2

Organization1:PPL Corporation

Commenter1:Craig Shamory

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

So if beneficial use is eliminated, we will be forced to dispose of all CCRs, which is very problematic, 

even if possible, under a Subtitle C approach. Both Pennsylvania and Montana do not have any 

commercial Subtitle C landfills. Therefore, PPL would either have to permit on-site Subtitle C landfills --
273

which is an uncertain proposition -- or be forced to find, among the very small number of Subtitle C 

landfills nationwide, facilities that have the capacity and permits to accept such large volumes of waste --

another uncertain proposition.

Response: The Agency acknowledges and appreciates the comment. 

Section 6.1.1 - General concerns/info about human health risks/adverse impacts from CCRs

Total Number of Submissions: 152

Total Number of Comments: 181

Comment Number: TRANS-ARL-0012-2

Organization1:Sierra Club

Commenter1:Lyndsay Moseley

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Poor structural integrity of an ash disposal site is obviously not the only risk from irresponsible coal ash 

disposal. Other serious risks such as the flow of leaching toxins into groundwater, rivers, lakes, and 

streams, less obvious to the average person, but no less threatening to the health of their communities. 

Scientists, including EPA's own scientists, have documented unsafe exposure to these heavy metals, 

including arsenic, selenium, cadmium, chromium, and others, can cause respiratory illness, organ disease, 

cancer, learning disorders, et cetera.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0017-1

Organization1:

Commenter1:Ruth Santiago

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 8.7

Comment Excerpt Text:

Hundreds of thousands of tons of coal ash are being used as fill material at construction sites above the 

South Coast aquifer in Southeastern Puerto Rico. CCRs are being deposited within a few meters of public 

water wells, irrigation canals, streams, farms, wetlands, beaches, and other sensitive areas. The aquifer is 

the sole source of potable water for approximately 53,000 residents of Salinas and Santa Isabel, and many

more thousands of people in neighboring municipalities. 

In some places, contractors have excavated huge holes that are filled with CCRs below the aquifer water 

table. Groundwater sampling results at the Salinas municipal landfill, where coal ash has been used as 

daily cover, indicate the presence of selenium and other heavy metals associated with CCRs above 

background levels. Residents of coastal areas fear that heavy metals, toxins, and radioactive isotopes in 

the CCRs are leaching into the water supply and will cause serious public health problems. 

In addition to providing potable water for tens of thousands of people, the aquifer feeds the unique Jobos 

Bay estuary, a designated National Estuarine Research Reserve. As in the town of Pines, Indiana, the 

reserve and contiguous areas where coal ash is being buried contain low-lying, poorly drained wetlands. 

As in Pines, the soil is very sandy, unconsolidated, acidic, with high organic content. In some areas, the 
274

aquifer is contained within a thin, less than 40 feet clay-rich confining layer facilitating contact with the 

CCRs, particularly during hurricane season such as right now. 

CCRs from the AES Puerto Rico, Limited Partnership, power plant are virtually given away at 15 cents 

per ton to anyone who will take them. AES also provides free transportation to residential and 

commercial construction sites. AES has no on- or off-site disposal facility and disposes of all -- disposes 

virtually all CCRs that it admits exceeds 300,000 tons per year through secondary use at construction sites 

and daily cover at the landfill. 

Even after construction is completed, the coal ash is exposed because the rain erodes the thin layer of dirt 

sometimes placed over the CCRs. At once site a virtual mountain of CCRs was dumped similar to the 

illegal disposal of AES residues in the Dominican Republic in 2003/2004, which has been the subject of 

various lawsuits and a multimillion-dollar settlement paid by AES. 

In the settlement agreement, AES prohibited the Dominican government from using any evidence that 

AES coal ash is toxic or harmful. That's in paragraph 8 of that agreement. The Agremax use contract that 

AES requires all recipients to sign, limits the type of testing that can be done on the CCRs.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0021-1

Organization1:Anne Arundel County

Commenter1:John Leopold

Commenter Type: Local Government

Classification: Substantive

Other Sections: 3.1.1 4.1.1

Comment Excerpt Text:

SPEAKER NO. 1: Good morning. I am here this morning speaking on behalf of County Executive John 

Leopold from Anne Arundel County, Maryland. His testimony: 

"I strongly support the proposed rule to regulate the management and disposal of coal ash and coal 

combustion residuals generated by electric utilities and independent power producers. I further support 

Options C and D under the Resource Conservation and Recovery Act to address human health concerns 

and structural integrity issues associated with coal ash impoundments and landfills. 

"The disposal of coal ash and coal combustion residuals poses a serious threat to the public health and the 

environment. Coal combustion residuals generated by electric utilities and independent power producers 

contain heavy metals that pose a serious health risk and can adversely affect ground and drinking water 

supplies. 

"An investigation in Anne Arundel County, Maryland, in 2007, identified the presence of heavy metals in 

groundwater that resulted from the disposal of coal ash and coal combustion residuals at a sand and gravel 

surface mine. Arsenic, cadmium, chromium, aluminum, thallium, and beryllium were identified in 

groundwater and directly affected off-site private wells and drinking water supplies. 

"The disposal of coal combustion residuals caused significant public health and environmental concerns 

in Anne Arundel County, Maryland, ranging from contamination of groundwater, nuisances from 

airborne dust, and adverse effects on private drinking water supplies. In 2007, 2008, and again in 2009, 

the county executive secured County Council approval of legislation he proposed to ban the disposal of 

coal ash and other coal combustion residuals in Anne Arundel County, Maryland. He continues to support 

this legislation and has great concern for the management and disposal of this material at landfills and 

service impoundments on a national level. 

"He strongly supports the development of a state and federal permit program as proposed under Subtitle C 

which provides the minimum level of protection necessarily to protect public health and the environment. 

The classification of coal ash and coal combustion residuals as a special waste under the Resource 
275

Conservation and Recovery Act will ensure the necessary regulatory oversight will be in place to 

adequately address the storage, manifest, transportation, and disposal of coal ash and coal combustion 

residuals. This option also requires the installation of liners and groundwater monitoring at new landfills 

and provides the greatest benefit to protect human health, the environment, and our limited resources. 

"The requirements proposed in Option D provide additional measures to protect public health and the 

environment through retrofitting existing surface impoundments with liners and through improvements in 

the structural integrity of existing surface impoundments. These measures will further reduce the risk of 

surface impoundment failure and provide the added protection to human health, surface and drinking 

water supplies, and our limited water resources." 

The county executive wants me to note that there is a flaw with the proposed rule in that it does not 

address exposure to fly ash from fugitive dust. Maryland is among the 42 states --

MR. DELLINGER: Your time limit is up. 

SPEAKER NO. 1: Can I finish? I have just a little bit. 

MR. DELLINGER: Real quick. 

SPEAKER NO. 1: Pardon me? 

MR. DELLINGER: Real quick. 

SPEAKER NO. 1: Okay. As this matter is of great urgency to the citizens of Anne Arundel County, the 

county executive strongly supports options Subtitle C and D under the proposed rule.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0026-1

Organization1:Friends of the Earth

Commenter1:Erich Pica

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 6.1.2

Comment Excerpt Text:

Around the country today there are more than 431 disposal sites for coal ash. Our members and 

supporters live near these facilities. The coal ash at these sites contain a toxic soup of chemicals, 

including arsenic, cadmium, chromium, lead, selenium, and others which have been linked to cancer, 

organ disease, respiratory illnesses, neurological damage, and reproductive and developmental problems. 

Forty-nine of these sites have been listed by the Environmental Protection Agency as high-hazard 

potential. Every year more than 130 million tons of coal ash is being added to these sites. This is enough 

to fill train cars from the North Pole to the South Pole. As we recently witnessed with the Tennessee 

Valley Authority, there is a lack of federal enforceable standards. In 2008, a dam holding more than 1 

billion gallons of toxic coal ash sludge failed, destroying 300 acres, dozens of homes, killing fish and 

other wildlife, and poisoning the Emory and Clinch rivers. Fortunately, nobody was killed. 

In addition to the risk of catastrophic failure from the TVA dam, communities around coal ash sites are 

suffering a slower, more insidious fate. People living near unlined coal ash ponds where water is

contaminated by arsenic and ash is mixed with coal refuse have extremely high rates of cancer: Up to 1 in 

50. This is 2,000 times greater than EPA's accepted cancer risks. 

Response: The Agency acknowledges and appreciates the comment. 
276

Comment Number: TRANS-ARL-0037-3

Organization1:

Commenter1:Rebecca Kolberg

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

First, to protect our health the EPA not only needs to safeguard drinking water supplies, it needs to 

monitor and regulate airborne or fugitive coal ash. Recently testing near Constellation's ash disposal site 

in Gambrills, Maryland, has shown that the ash has not remained confined to the site and airborne ash has 

contaminated nearby neighborhoods. 

This is very disturbing given Constellation's recent proposal to build another coal fly ash landfill at the 

border of Baltimore and Anne Arundel County. Unlike the Gambrill's landfill, which involved filling a 

hole in the ground, this landfill would be a so-called vertical landfill, looming 170 feet above the flat 

coastal plain, a veritable Mount Ashmore. That's certainly not what most people picture when they think 

of a landfill. Consequently, the EPA needs to set height limits for coal ash landfills or else face the threat 

of windborne fugitive ash contaminating neighborhoods for miles around.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0056-1

Organization1:Physicians for Social Responsibility

Commenter1:Barbara Gottlieb

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Let's remind ourselves that it contains some of the world's deadliest toxic metals. Arsenic, lead, mercury, 

cadmium, chromium, selenium, and other toxicants in coal ash can and do cause cancer, neurological 

damage including developmental disorders, respiratory disease, reproductive impacts and other problems 

in human beings while killing and damaging wildlife, especially fish and other water-dwelling species. 

The threat that coal ash poses to human health is serious and it is widespread. Coal ash is the second 

largest industrial waste stream in the U.S. after mining wastes, it's disposed in approximately 2,000 sites 

across the nation, and coal ash toxicants have leached from disposal sites in well over 100 locations, 

carrying toxic substances into aboveground and underground waterways and in many cases drinking 

water wells. As the damage cases indicate with coal ash causing real damage, if there's going to be stigma 

associated with coal ash, let's put that stigma on the lives that are lost and not the jobs. 

The impacts to health are severe. The EPA itself has issued a risk assessment report indicating that people 

who lived near an unlined wet ash pond and who get their drinking water from a well have as much as a 1 

in 50 chance of getting cancer from drinking water contaminated by arsenic. Even where people are not 

drinking contaminated water, their health may be threatened if they eat fish that's taken from waters 

contaminated by coal ash toxicants. Coal ash is also dangerous if inhaled. Making fugitive dust from coal 

ash is a serious health concern. 

I'd like to stress though one other point that I haven't heard enough about today, and that is that coal ash is 

persistent over time. This raises long-term concerns and challenges in regard to health. When coal ash 

contaminants leach out of unlined surface impoundments, it can take decades until they reach peak 

concentrations in nearby well water. The EPA has estimated it might be 74 years for selenium, 78 years 

for arsenic, 94 years for cobalt. 
277

What these numbers suggest is that coal ash toxicants are going to be with us and with our kids and with 

our grandchildren for a long time. They do not disintegrate, they do not lose their toxicity, they never 

really go away. Either we securely contain coal ash toxicants or they will disperse into and contaminate 

our environment and damage our health.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0093-1

Organization1:Greenpeace

Commenter1:Brian Johnson

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

I'm pleased to see that the EPA is finally considering regulations on dirty coal ash waste. Coal ash is a 

toxic substance that contains nasty pollutants, such as mercury, lead, and arsenic, and yet industry has 

already filled waste ponds with enough coal ash to flow over Niagara Falls for more than three days. 

Living near an unlined coal ash pond increases a person's cancer risk to 2,000 times beyond the EPA's 

acceptable level, and the EPA's own risk assessment has already determined that living near an unlined 

coal ash waste pond and drinking arsenic-contaminated water can be more adverse to a person's health 

than smoking a pack of cigarettes every day. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0014-1

Organization1:Congressman Mike Quigley

Commenter1:Kimberly Walz

Commenter Type: Federal Elected Official

Classification: Substantive

Other Sections: 6.1.2 3.1.1

Comment Excerpt Text:

Colstrip, Montana is home to the second largest coal plant west of the Mississippi. One boxcar-full of 

coal is burned every five minutes. The burning of coal creates sodium, thallium, mercury, boron, 

aluminum and arsenic which is pumped out of the factory and into the air. The chemicals that aren't 

pumped into the air are caught in the factory's scrubbers and then dumped with the coal ash into giant 

settling ponds. 

These ponds are shallow artificial lakes of concentrated toxicity which leach this poison into wells and 

aquifers. This sludge flows into the surrounding towns and countryside, bubbling up against foundations 

and floorings, cracking the floor in Colstrip's local grocery store. 

Ranchers in Eastern Montana are now suing the plant for damages. Noxious water, they cite, is the only 

liquid that fills their wells and stock ponds. James Hansen, a renowned climate scientist, says Colstrip 

will cause the extinction of 400 species. 

But still, Colstrip burns on. We are poisoning our ecosystem and our animals. 

But we are also poisoning our families, our communities, our nation and our entire world. Why? Because 

there are currently no federally enforceable regulations specific to coal ash. This lack of federally 
278

enforceable standards is exactly what led to the disaster in Tennessee where a dam holding more than one 

billion gallons of toxic coal ash failed, destroying 300 acres, dozens of homes, killed fish and other 

wildlife, and poisoned the Emory and Clinch Rivers. 

From Tennessee to Colstrip, the story is the same. Living near an unlined coal ash waste pond and 

drinking water contaminated with arsenic can be more dangerous than smoking a pack of cigarettes a day, 

according to a risk assessment done by the EPA. People living near unlined coal ash ponds where water is 

contaminated by arsenic and ash is mixed with coal refuse, whether they're in Tennessee or in Colstrip, 

have an extremely high risk of cancer up to 1 in 50. This is 2,000 times greater than EPA's acceptable 

cancer risk. 

As Al Gore wrote in 2005, "it is now clear that we face a deepening global climate crisis that requires us 

to act boldly, quickly and wisely." Coal ash is a piece of the larger climate crisis, a crisis that has a hefty 

cost--the cost of carbon. 

So, as we burn coal, creating sodium, thallium, mercury, boron, aluminum and arsenic which is pumped 

out of the factor and into the air, we can continue to do that. We can blow the tops off mountains, 

allowing streams of toxicity to leach coal slurry poison into wells and aquifers. We can send tar sands 

1,700 miles across our soil. 

Or we can stop stripping our land, polluting our air and water and do what's right. The first step is to 

establish comprehensive, federally enforceable standards that protect human health, wildlife and the 

environment. Coal ash must be regulated under Subtitle C of the Resource Conservation and Recovery 

Act as special waste with all the safeguards that apply. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0043-1

Organization1:

Commenter1:Aaron Turkewitz

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 6.1.2

Comment Excerpt Text:

I'd like to begin by saying I applaud the fact manifested in these hearings that the EPA has come to 

recognize the serious health and environmental risks posed by coal ash. 

The scientific findings including studies from the preeminent body of US Science and National Academy 

make it abundantly clear that the residues concentrated in coal ash are capable of degrading both human 

and environmental health. My own laboratory has recently become involved in developing new sensors to 

detect environmental pollutants, particularly heavy metals like those which leach from coal ash. One 

lesson I have quickly absorbed is that it is vastly more difficult and expensive to deal with pollutants that 

are dispersed in the environment than it is to take steps to prevent their dispersal in the first place. Here I 

am not even talking about the difficulty and cost of remediating environmental damage but just the cost of 

detecting it to begin with.

Response: The Agency acknowledges and appreciates the comment. 
279

Comment Number: TRANS-CHI-0050-1

Organization1:Little Village Environmental Justice Organization

Commenter1:Abigail Singer

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

When we talk about how to classify and regulate coal waste, it is really crucial to remember that these 

rules have a direct impact on many people's lives, not to mention on the land and the drinking water 

sources that all of us depend on. 

According to a health study that was conducted by the Harvard School of Public Health, the estimated 

impacts of Chicago's two coal-fired power plants are about 500 emergency room visits every year, 2,800 

asthma attacks, and more than 40 premature deaths every year. 

These are a result of airborne pollution. They do not even take into account the impacts of coal ash. 

Because coal ash is not well regulated, we don't even know where this waste is ending up or who is being 

impacted. 

We do know that coal ash is toxic and poses a real threat to public health and safe drinking water. Coal 

ash contains unsafe levels of contaminants like arsenic, mercury, selenium, chromium and cadmium. 

These contaminants are shown to cause cancer, neurological damage, and damage to the kidneys, liver 

and nervous system. Yet most coal ash surface impoundments in the US are still unlined and thus pose a 

very real risk of water contamination. Many states require no groundwater monitoring at all at coal ash 

ponds. This is unacceptable. 

One of the more dramatic examples of the dangers posed by unregulated coal ash is the TVA spill in 

Kingston. 

This was the largest industrial waste spill in US history, dumping more than a billion gallons of toxic coal 

ash into the surrounding community and the Clinch and Emory Rivers. 

According to the EPA, there are two coal ash ponds in Illinois that are "high hazard" and could result in a 

similar disaster. Again, these are unacceptable risks. 

People have a right to know what they're being exposed to in their drinking water, in their homes and at 

their workplaces. Coal ash is toxic and carcinogenic and it should be treated as such.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0068-1

Organization1:Physicians for Social Responsibility

Commenter1:Jeff Patterson

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

Today, we have released this report, a comprehensive report on the toxic and deadly effects of coal ash. 

It's available our website, www.psr.org. As this report points out, the threat to public health from coal ash 

is already both serious and widespread. Coal ash is disposed of in approximately 2,000 dumpsites across 

the nation. Coal ash toxicants have leached from disposal sites in well over 100 locations carrying toxic 

substances into aboveground and underground waterways and, in many cases, drinking water wells. 

The impacts to health can be quite severe. According to an EPA assessment report, people who live near 

an unlined wet ash pond and get their drinking water from a well have as much as a 1 in 50 chance of 

getting cancer from drinking water contaminated by arsenic. 
280

Even when people are not drinking contaminated water, their health may be threatened if they eat fish 

taken from water sources contaminated by coal ash toxicants. Coal ash is also dangerous if inhaled, 

making fugitive dust from coal ash dumps a serious health concern. Unfortunately, those least able to 

protect themselves from contamination, developing fetuses and young children, are even more susceptible 

to harm. Thus, the so-called safe levels of toxicants which are developed for adults may be far too high. 

Finally, coal ash is persistent over time, raising long-term concerns and challenges in regards to health 

and in regards to the outcome of these products. When coal ash contaminants leach out of unlined surface 

impoundments, it may take decades until they reach peak concentrations in nearby well water: 74 years 

for selenium, 78 for arsenic, 97 for cobalt. They don't disintegrate or lose their toxicity. 

The stigma is already there. It is the stigma of the damage to the health of thousands that the coal industry 

has already caused and will continue to cause for many years to come. Coal ash is a part of that damage. 

We must do our best to prevent future damage. There is no cure, only prevention. 

For that reason, PSR calls on the EPA to discharge its duty to protect the environment by applying the 

strictest possible levels of control over coal ash disposal. We must apply the precautionary principle. We 

strongly support Subtitle C as the only option currently on the table that would adequately protect human 

health. 

Federal regulations of coal ash disposal are important. State efforts are inconsistent and frequently too 

weak. We must phase out wet storage. And finally, we must limit the recycling of coal ash to uses where 

coal ash is not exposed to water and where the ash is chemically bound. On behalf of PSR, we support C 

and thank you very much

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0092-2

Organization1:Protestants for the Common Good

Commenter1:Courtney Eccles

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Other Sections: 6.1.2 9.2.3

Comment Excerpt Text:

We're particularly concerned about coal ash because we consider it to be an environmental issue, a health 

issue and a justice issue. Coal ash sites can contaminate water sources with dangerously high levels of 

arsenic, selenium, mercury, cadmium and many other toxins. And these toxins endanger the plants and 

animals located in those waterways, not to mention contaminate drinking water. For individuals that live 

near or around dumping sites, there are grave health concerns. According to an EPA risk assessment, 

living near a coal ash site is more dangerous than smoking a pack of cigarettes each day. The risk of 

getting cancer can be as high as 1 in 50 individuals, and all of these health concerns are even more grave 

for young children and infants. 

Furthermore, those families or individuals who live near coal ash sites probably have no idea what the 

risks are. Many of them may not even know that they live near a site. And for those that do, they may 

very well not have the economic ability to move elsewhere. And we consider that a huge justice issue.

Response: The Agency acknowledges and appreciates the comment. 
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Comment Number: TRANS-CHI-0118-1

Organization1:

Commenter1:Ralph Zellner

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

My problem is they put one of these cancer pits right across the road from my house. First of all, we were 

never notified that this thing was coming in or nothing. We had to follow the trucks back to the -- plant to 

find out that they were hauling this fly ash. They put this thing in there. They never did any borings to see 

if this was going to be a safe place to put this stuff or not. They had been dumping debris in there for 

probably 20 years. 

Now, when that debris decomposes, the bottom of that liner, they only put in a clay liner, that's just going 

to fall right out. This stuff is going to get right in the water because we're on the Niagara Escarpment and 

it's total rock there so it won't hold nothing. The water was polluted there once before but it was not from 

this product, it was from TCE. 

When we were told about the liability for this thing, Wisconsin has passed a law that the liability falls 

totally on the taxpayers. The guy who put the stuff in there or was paid for putting it in there will have no 

liability at all. So, we'll have bad water and there will be nobody to take care of it because with the TCE, 

all they did was like the people down at Caledonia, they brought them a water bottle or something, they 

put a water tank up there, you go fill up your own water jugs. 

So, I think it's very essential that you do something that this is mandatory and that we have a law that 

pertains to everybody in this country that they can't just go around changing and putting their own 

regulations in place and it all depends who is in political power and they get done what they want and the 

people will have to pay the price. 

And the thing is about the fly ash, they're always saying, well, we're going to have to use a lot more 

landfills for it, I do not believe we have to use any more landfills because this fly ash can be put right 

back into train cars that haul the coal and be hauled back to the mountains where it came from

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0155-1

Organization1:Chicago Chapter of Physicians for Social Responsibility

Commenter1:Peter Orris

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

I'm presenting testimony for the Chicago Chapter of Physicians for Social Responsibility. We have 

delivered the very brief written comments that we have, and given the hour I'm going to make only two 

points. 

One is that we believe clearly the coal ash should be regulated under Subtitle C. We believe that such 

regulation will allow the EPA to intervene and reduce the XX cancers that the literature already 

documents are occurring related to this toxic exposure of people living in and around these coal ash 

ponds. 

So, we support strongly that regulation as a special waste, and we thank you very much for having us here 

today and for holding the hearings.
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Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0175-1

Organization1:

Commenter1:Lora Chamberlain

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

My name is Dr. Lora Chamberlain and I am here in support of the regulation of coal ash under Subtitle C. 

And I'm a family physician here in Chicago and coal ash, even a brief cursory discovery on the internet 

and other periodicals, has been proven to be a hazardous waste. The toxins include mercury, a known 

neural toxin causing developmental defects and decreased intellectual functioning; chromium, the 

ingestion of which causes multiple gastrointestinal cancers, the inhalation which causes asthma or 

respiratory disease, lung cancer; selenium causes neurological effects; lead causing effects really on every 

system in the body; arsenic, also almost every system in the body; and on and on and on. 

Now, I am here to talk to you about the so-called beneficial uses of coal ash. I'm really, really concerned. 

I was going to actually testify about something else but I was in the audience and I was listening to all of 

this talk about putting coal ash or gypsum on our crops. And so, I ran down to FedEx and I did a, you 

know, research on what has been investigated with the use of gypsums. And there has been very, very few 

studies done on the post-application of gypsum. I looked up one of your own reports, the characterization 

of coal combustion residues from electric utilities leaching and characterization data, and even your own 

report shows that there are vast toxicities, toxic levels with the use of FGD gypsums. And I am really 

concerned that we're not investigating this in a post- application basis a little bit more. 

Just an example on one issue, and that is selenium was found to have, in some of your studies, in some of 

your samples, was found to have 16 times the hazard level to human health in the gypsum samples. So, if 

gypsum is okay for our crops and it is not toxic, I want to encourage everyone to do what the doctor who 

testified in the congressional, Dr. Donald McGraw, and that is to put coal ash on your morning cereal. 

You don't have to do it if you don't want to but, you know, unless we study it, we really don't know the 

effects of it. 

(Applause) 

DR. CHAMBERLAIN: Do some further study. Thank you. And pass the Subtitle C.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0009-1

Organization1:CROP PLUS

Commenter1:Diane Hoffner

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 10.5.1.5

Comment Excerpt Text:

Concerned Residents of Portland, New York, and People like us, or CROP PLUS, is a volunteer 

grassroots group established to protect our environment and waterways. We're working to end the use of 
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coal combustion bottom ash as a deicer and traction agent on our roads. This ash is not encapsulated, sir, 

and it is a very serious concern. 

Our ditches are not lined. We believe this use is merely unmonitored dumping rather than reuse. What we 

have are a series of roads, pictures, during the winter months. The snow is pure white in these pictures, 

but the road is black. And then when the plows come back and push it to the side, it's a very slushy, black, 

soot-y type mess. It is bottom ash. 

My town mixes 10 part of bottom ash to three parts of sand, to one part of salt. And massive amounts can 

build up in the ditches. Our ditches, again, are not lined. 

New York State allowed this with a BUD of beneficial use, but that BUD issued in 1992 said it required 

that it be tested twice a year to guarantee the safety to our waterways and environment. However, in 1993 

New York introduced a new regulation which, again, is part of our problem. In this regulation, 360-1.15 

has four parts. Part A said any BUDs issued before should stay in effect with all of their conditions if they 

were issued previous to this. Part B lists 16 predetermined BUDs, where people don't even have to apply 

to use it. If you agree to use it this way, just go ahead and use it and you don't even have to apply. 

Absolutely no testing. 

Part D, though, again where we were told that our BUD 122 was incorporated into this, I felt, well, if they 

ignored it in part A and that said we should keep the rules under the BUD, it must have gone into part D. 

Part D has several regulations, on paper only, that call for testing and a plan, that the user and the 

producers provide a plan. None of these plans exist. It suggested that the ash not be stockpiled for more 

than 90 days before use. I have pictures here of huge piles from two towns: Portland and Pomfret. And 

what it shows is that these piles are right next to a creek. 

When I sent for FOIA information, absolutely no tests were available. I was granted a grant by 

Freshwater Future out of Michigan, and we tested two samples of coal ash, five streams and surface 

waters, and three domestic wells. We have those test results. And again, we repeatedly ask that this come 

up. At Correll Creek, which is behind my stockpile, when we were upstream, aluminum, arsenic, barium, 

chromium, iron, manganese, lead, and selenium were all very close to zero. However, slightly 

downstream, these numbers raised. And again, if anybody is interested in seeing this we will show the 

slide today in room 141 at noon, two, and 6:00 p.m. 

After we had tested the ash and the five waters -- my son will again show you some graphs. One of the 

streams goes right through two landfills. One of the landfills is designated (inaudible) case damage case. 

Don Cramer trucking, it is in the 2007 records, and that second one is presently being used. 

One of the streams that, with the ash sludge that we got from the ditch, came from the entrance to this 

landfill. It is unmarked. There is absolutely nobody around the area who knows exactly that this is a 

landfill. The closed one has 700,000 cubic yards of ash. It was closed by court order in 1988. It is still 

under 30 years of supposed testing and the records, in checking, is very poor. Absolutely no one is 

notified. 

The ditch sludge, the aluminum was over 16,000, arsenic at 11.8, barium at 846, chromium at 17, iron 

that 20,100 parts per million. Manganese, 464. Lead, 14.5, and selenium did not show. 

But what we have to do is guarantee. This ditch goes through two residential areas on the bay of Lake 

Erie, and then directly into Lake Erie. The three wells that were tested had quite a bit of waste on them, 

and one well has been in the DEC records since 1984 but that homeowner has not had any satisfaction 

from sludge at the bottom of the well. 

A second one was also very high, with the -- this particular thing shows all of our tests. And what we're 

asking is that the EPA grant us a meeting to review these three domestic wells, the five surface waters, 

and the sludge in the ash. Because this is proven to be very dangerous. 

Mr. Chuck Norse from Colorado reviewed our data and said that Correll Creek was a sure sign of 

contamination from water that is safe to drink to one that is beyond

Response: The Agency acknowledges and appreciates the comment. 
284

Comment Number: TRANS-CLT-0060-1

Organization1:Physicians for Social Responsibility

Commenter1:Lewis Patrie

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

We believe mandatory Federal regulation of coal ash disposal by the EPA is essential. Coal ash typically 

contains heavy metals, including arsenic, lead, mercury, cadmium, chromium, selenium, plus other toxins. 

They can cause cancer and nervous system illnesses such as cognitive deficits, developmental delays and 

behavioral problems, also heart damage, lung, kidney and gastrointestinal diseases, reproductive problems 

and birth defects. 

Coal ash's toxic contaminants leak into the surface and groundwater. EPA estimates that 140 million tons 

of coal ash are generated annually. Coal ash is disposed at nearly 1,000 sites across the nation, including 

many in North Carolina. 

EPA is considering adopting mandatory federal rules that would phase out leak- and spill- prone wet 

storage of coal ash, require storage areas to be lined and take other steps to minimize toxic contamination 

of surfaces, groundwater, and in a number of places, such as drinking wells. 

Increasingly, opponents of federal regulation of toxic substances argue that regulations that stigmatize 

coal ash would hurt the economy at a time when many people struggle with unemployment, rising prices 

and financial insecurity. PSR avows that coal ash should be stigmatized, considering the price of pollution 

and misery and health care costs. We pay in healthcare and health insurance costs, lost days from work 

and school when we suffer physically, economically, and emotionally from illnesses and premature 

deaths, and when our children are permanently deprived of their capacity for normal intellectual 

development. 

We suggest you compare costs versus benefits comparing employment and economic losses that might be 

experienced by polluting industries with those health costs resulting from toxic pollution, such as has

been applied to tobacco and health in the past and as being currently applied to the problem of childhood 

obesity. 

Furthermore, costs of burning coal and the use of nuclear power to create electricity should be compared 

to those of retrofitting millions of homes and other buildings with energy-saving measures, plus a 

dramatic switch to truly renewable energy resources, thus reducing our dependence on fossil fuels, a 

major cause of global warming. 

Support Option C (sic). 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0083-1

Organization1:Clean Water for North Carolina

Commenter1:Katie Hicks

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

At Clean Water for North Carolina, we have a special concern with coal ash waste's threat to 
285

groundwater, as it is a source of drinking water for over 50 percent of North Carolina residents, including 

those served by public water systems that use groundwater as a source.

More than 2.5 million North Carolinians depend on their own private wells, which are not being tested for 

the contaminants most likely to come from unlined, under-monitored coal ash dumps. We're acutely 

aware that as more data accumulates, there are more and more instances of documented contamination of 

groundwater, which pose an unacceptable threat to the health and well-being of North Carolinians. 

Our organization knows of communities living very close to coal ash ponds in this state, such as the 

neighborhood just behind the pond at Duke Energy's Buck Steam Station. The whole approach of 

regulating within a compliance boundary is based on the assumption that land ownership and uses will 

change little over time and that groundwater won't move significantly; both completely unrealistic. We 

know that groundwater moves, and in unexpected ways. On behalf of the groundwater users and 

marginalized communities we work to protect, Clean Water for North Carolina supports regulation of 

coal ash waste under Subtitle C. EPA's first proposal is a step in the right direction. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0152-1

Organization1:

Commenter1:Stephen Keener

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

There can be no argument that coal ash is a substance which is hazardous to human health. It is not 

necessary for me to repeat what others have said here today about the scientific evidence linking the coal 

ash with human disease and death. There is also no question that the toxic chemicals in coal ash leach into 

the water table, and contaminate our drinking water. If stored in an uncovered landfill, the same harmful 

substances can be blown into the air we all breathe. 

Regardless of whether coal ash contaminates drinking water or the air, it exposes human beings to toxins 

and their health will be harmed. This does not have to happen. If coal ash is declared a hazardous 

substance, then people can be protected from an environmental hazard that can be mitigated. Regulation 

of coal ash is an absolute no-brainer. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0008-2

Organization1:Utility Solid Waste Activities Group

Commenter1:Jim Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:
286

Some of the myths floating around are just plain silly, especially that exposure to coal ash is riskier than 

smoking cigarettes. This claim is based on bad science and is misleading for the following reasons: First, 

the coal ash risks cited in this analogy are greatly exaggerated. In fact, there is a 90 percent probability 

that the risk is lower. 

If we use a more realistic coal ash risk level, one that has an equal chance of being higher or lower -- a 

middle estimate, if you will -- the cancer risk from coal ash exposure is actually lower than the cancer risk 

from drinking water meeting the current federal drinking water standard for arsenic, and lower than the 

comparison's incorrect and greatly underestimated lifetime cancer smoking risk. Second, the analogy is 

comparing apples and oranges. It is inappropriate to compare the prevalence of cancer from smoking that 

reflect the actual number of cancers caused by smoking with hypothetical lifetime cancer risks from coal 

ash that are based on greatly exaggerated conservative assumptions. 

The comparison also greatly underestimates the actual risk from smoking in an attempt to make the risks 

from coal ash appear so much greater. In fact, the actual lifetime risk of lung cancer from smoking is 

greater than 10,000 per 100,000 smokers, more than 10 percent. This risk is more than 1,000 times greater 

than the hypothetical risk from coal ash. 

We have to base any regulatory decision on sound science and not trumped-up or inaccurate charges. The 

truth is that the actual risks from CCRs can be properly addressed by federal non-hazardous Subtitle D 

regulations. 

There is simply no reason for the EPA to pursue the Subtitle C approach when it can develop federally 

enforceable rules under the less controversial, yet equally protective, Subtitle D non-hazardous waste 

program

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0011-1

Organization1:Sierra Club

Commenter1:Michael Brune

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

Toxic coal ash poses serious risks to human health and the environment. Given the severity of these risks, 

enforceable federal safeguards, not suggested state guidelines, are necessary to protect our communities. 

Both EPA and the National Academy of Sciences have years of research showing that toxic coal ash is 

becoming increasingly toxic. The hundreds of toxic coal waste dumpsites across the country pose very 

real threats to the health of millions of people living in communities near those sites. 

For decades, the coal industry has told the American people that coal ash is safe, just like tobacco 

executives told Americans that cigarettes don't cause cancer, just like the auto industry told us that 

installing catalytic converters would wreck the industry. 

If these examples and the BP oil disaster and the Tennessee coal ash disaster have taught us anything, it's 

just that we can't take polluters' word for granted anymore. Coal ash contains a long list of dangerous 

toxins, including arsenic, selenium, lead, and mercury. These heavy metals have been linked to organ 

disease, cancer, respiratory illness, neurological damage, and developmental problems. Do we really want 

these chemicals in our water supply? 

Despite coal ash's dangerous characteristics, it is currently less strictly controlled than household garbage. 

That's right. Coal ash is contaminated with dozens of chemicals known to cause serious harm to people 

and the environment, and it's treated with no more care than an empty bag of pretzels. 

Clearly, our current state standards are inadequate. This is why we're here today. It's why there are 

hundreds of people turning out at every hearing on this issue across the country. That's why you will 
287

receive hundreds of thousands of comments over the next several months. 

We need EPA, we're counting on EPA, to protect the quality of our air, our water, and our communities.

Effective coal ash regulations must require basic protections for communities, such as composite liners, 

water runoff chemicals, groundwater monitoring, and financial assurance that companies pay to clean up 

what they pollute. 

Again, I want to thank you for the opportunity to speak about this issue. I just wanted to say that coal ash 

is toxic. It's hazardous. It's poisonous. Please regulate it as such. Please adopt Subtitle C.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0024-2

Organization1:Sierra Club

Commenter1:Molly Rooke

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Improved testing methods reveal that coal ash is significantly more toxic than originally thought, and has 

an increased risk of leaking into waterways. The levels of pollution like arsenic seeping from coal ash 

were found to be significantly higher than what is considered safe for drinking water. Concentration of 

metals and chemicals in coal ash have been found at levels many times higher than what is considered 

hazardous -- currently considered hazardous waste. 

Living near a coal ash site is significantly more dangerous than smoking a pack of cigarettes a day, 

according to risk assessment done by EPA. People living near unlined coal ash ponds have an extremely 

high 1 in 50 risk of cancer. That's more than 22,000 times higher than what EPA considers acceptable. 

And the toxins found in coal ash have been linked to organ disease, cancer, respiratory illnesses, 

neurological damage and developmental problems. Children are more susceptible to the health impact of 

coal ash, a disturbing fact since the EPA has found that millions of children live near coal sites. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0029-1

Organization1:

Commenter1:Karen Lewis

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

As a physician, I'm here today to strongly encourage the EPA to assume regulation of coal ash disposal 

under Subtitle C of the Resource Conservation and Recovery Act. Coal ash, the residue left over after 

coal is burned, contains some of the world's deadliest toxins, arsenic, lead, mercury, cadmium, selenium, 

and many others. This ash is disposed at nearly a thousand sites across the nation. 

Currently, toxic elements escape from many of those sites, contaminating the environment, killing fish, 

entering underground aquifers, and poisoning drinking water wells. This ash is a major threat to the health 

of Texas residents. If eaten, drunk, or inhaled, these toxins can cause significant health problems, 

especially cancer, heart and lung damage, kidney damage, cognitive deficits, developmental delays, and 

behavioral problems. 

These aren't little known toxins. Arsenic is a deadly poison historically used for murder. The EPA has 
288

found that if you live near an unlined wet ash pond and you get drinking water from a well near there, you 

may have as much as a one in fifty chance of getting cancer from drinking that water. 

Lead is a heavy metal so toxic that we doctors routinely screen young children as they may have eaten 

lead-based paint chips. If poisoned, they need immediate treatment to attempt to prevent permanent 

learning and behavioral disorders. No safe threshold for lead has been discovered. 

Mercury is another heavy metal well known for its brain damaging effects, especially on fetuses and 

young children. Doctors recommend that pregnant women not eat large fish and limit their intake of small 

fish to no more than twice a week. But why is there mercury in the water in the first place? According to 

the EPA's toxic release inventory, over 75 percent of the mercury pollution in Texas comes from coal 

plants. This is a big problem. 

The EPA estimated that 140 million tons of coal ash are generated annually, making it the second largest 

industrial waste stream in the United States. The current coal ash disposal sites are inadequate, especially 

with wet surface impoundments accounting for about a fifth of them. Federal regulation is essential to 

ensure that coal ash disposal sites adequately protect human health. 

These efforts may be difficult for businesses in the current economy, but cancer, brain damage, and death 

are difficult, too. Shouldn't human health come first? As fellow PSR member Barb Gottlieb said, if coal 

ash is going to bear a stigma, let it be the stigma of lives that are lost, not jobs

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0035-2

Organization1:

Commenter1:Rel Corbin

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

So we're back to storing fly ash and cinders in heaps or in -- I guess it's sludge in ponds. Now, if you don't 

keep those heaps moistened, dust is going to blow off. That -- all the toxins from coal dust are going to 

blow out. If you moisten it, you're creating a leachate that is going to leak -- leak and get into water and --

and ground. If you store it as sludge, wet -- and even if you've got a liner under these ash heaps or under 

the ponds, those liners aren't going to last forever. They're going to disintegrate. And that poison is going 

to go into the groundwater or out under the surface water. So I don't see a practical way to deal with coal -

- byproducts that coal can -- con -- coal residuals. So I think we need to really be pushing for other 

sources of energy, passive types -- because we have to get away from coal. There's no solution to dealing 

with the coal residuals

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0126-2

Organization1:Public Citizen's Texas office

Commenter1:Tom Smith

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Another big issue that we see is that as our pollution control devices have gotten better over the years, the 

toxicity of the coal combustion waste has gotten higher. Due to the engineering of many people in this 
289

room and many others, we're now able to pull 90 percent of the toxins out of the smokestacks. That's the 

good news. 

The bad news is that the by-products, the toxins, the ash, that is captured in the bag houses and other 

pollution control devices is now then put back into the coal combustion waste and becomes far more 

toxic. 

Things that may have been previously inert and easily recyclable to use in road bases and others that 

cause the contamination of the various types of catalysts and reagents in the atmosphere now have various 

toxic particles associated with them as well. 

So the question of what's recyclable is not as easy or as clear as it was a generation ago, before we had 

these pollution control devices. The decisions you have before you carry with them significant toxic 

consequences. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0129-2

Organization1:

Commenter1:Roger Grissette

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

People living near coal ash sites have a staggering 1 in 50 chance of contracting cancer. Both the EPA and 

the National Academy of Sciences -- Science have years of research making it clear that coal ash is toxic 

and a threat to human health. I note the industry continues to argue the contemplated changes would, 

quote, threaten the steady, dependable flow of affordable energy for American consumers and businesses. 

Most critics of the power industry would argue just the opposite. Taking these utilities off the hook only 

allows them to further delay necessary changes to modernize their generation

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0120-4

Organization1:

Commenter1:John Foreman

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

In Colorado there are 40 coal ash ponds at 10 plants. 26 of the ponds are over 30 years old. 13 are over 40 

years old. The age of these ponds means it's unlikely they have safeguards like liners and leachate 

collection systems. 

People living near unlined coal ash ponds can have a one in 50 risk of cancer. That's more than 2,000 

times higher than what the U.S. EPA considers acceptable. The toxins in coal ash have also been linked to 

organ disease, respiratory illness, neurological damage, and developmental problems. 

Two ponds in Colorado; one in Comanche and one Valmont, had spills in 2000 and 2008 respectively. Do 

we really want to rely on the coal industry to make coal ash ponds safe? 

Please do not -- please do the right thing and regulate these dangerous materials
290

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0069-1

Organization1:Physicians for Social Responsibility

Commenter1:Barbara Gottlieb

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

Some industry representatives whom we've heard from today have suggested that coal ash is not toxic, 

and that the TVA Kingston spill was somehow not of much consequence to hu -- human health. On behalf 

PSR, I would like to correct that mischaracterization. It may be that coal ash is bound at the molecular 

level in some recycling uses rendering it inert and ho -- harmless. We certainly hope so. But that is not 

what we are dealing with in coal ash in some 2,000 storage sites around the country. What leaches, blows, 

and spills out of storage sites includes arsenic, selenium, cadmium, chroni -- chromium, molybdenum, 

and a long list of other clearly toxic heavy metals. The contamination of people's drinking water wells 

from coal ash waste, as is scientifically documented in the EPAs listing of damage cases, proves in 

scientific terms that coal ash is toxic. 

What I'd like to go focus on today, though, is that the EPA's assessment of coal-ash toxicity is actually 

hindered by errors of methodology and of assumptions. I'd like to raise five issues that actually lead the 

EPA to underestimate coal-ash toxicity. 

First, the EPA's test for measuring leaching is inadequate. The EPA's own Science Advisory Board and 

no less than the National Academy of Sciences have both called on the EPA to replace its leaching test 

with a more modern, more accurate version. When, in 2009, the EPA used a test that accounted for 

additional factors, such as the pH of the ash and field conditions where leaching might take place, 

leaching was shown to be dramatically higher than previously believed. 

Second, the EPA failed to consider the potential for harm from simu -- simultaneous exposure to multiple 

heavy metals. Exposure to several contaminants concurrently can cause synergistic interactions that result 

in a greater risk to health. Concurrent exposures may intensify existing health effects or may give rise to 

new health effects. 

This can happen where different contaminates op -- contaminants operate by a common mechanism of 

toxicity; it can also happen where different contaminants affect the same body organ or system. Both 

scenarios occur with coal-ash toxicants. Unfortunately, the EPA does not take multiple exposures into 

account. The EPA doesn't consider the greater threat to children. The EPA disregards long latency 

periods. Harm to health from coal ash may take years to become evident. This is particularly true of 

cancer which results from damage to cell DNA and mutations in genes. 

Two years, as the case with the TVA spill, is too short a time for this damage to manifest; and thus, it's 

too soon to declare that no such harm was done by the pill. 

Finally, the EPA overlooks the transfer of the problem from Tennessee to Alabama. A full assessment of 

health impacts must consider impacts where the coal ash is eventually disposed. 

For these reasons, PSR strongly supports Subtitle C

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0091-2

Organization1:Physicians for Social Responsibility
291

Commenter1:Steven Gilbert

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 6.1.2

Comment Excerpt Text:

The coal ash spill that inundated Tennessee occurred at a time that caused the least acute effects on 

human health, as in no was killed. Everyone was very lucky, except the economical damage was 

enormous and there was serious consequences for many families. 

While I commend the emergency response and subsequent monitoring by the EPA and the report by the 

Tennessee Department of Health, the broader is one of protecting human and environmental health from 

coal ash waste. Coal combustion waste with its many contaminants is the second largest industrial waste 

treatment in the United States. 

We have an ethical responsibility to protect the most vulnerable among us from exposure to arsenic, 

mercury, and other coal ash contaminants in the air we breathe, the water we drink, and the dirt we play 

in. This is particularly important for children who are not little adults as they eat -- eat more, drink more, 

breathe more than adults are more vulnerable to the health effects from asthma to cancer to neurological 

disorders. All clean-up standards and disposal management standards must be set to protect children.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0092-1

Organization1:American Electric Power

Commenter1:Rick Hayek

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.3

Comment Excerpt Text:

Your responsibility is tremendous because of this freedom that we have to share opposing opinions, and I 

want to offer my perspective on the continued beneficial use of ash. 

I've been in the -- in the marketing end of ash and in the coal business for 32 years with American Electric 

Power. We recently had a downsizing, where we lost 20% of our workforce. And I've -- over the 32 years, 

I've met many people that have worked their entire life with ash; people that have walked in it, bathed in 

it, ate it, drank it, because it was part of their job. Going around to these retirement parties over the past 

year, never once has anybody said, "Well, so and so died as a result of his exposure to ash or residuals." 

Maybe they died from smoking or something of that nature, but nothing has ever been brought to my 

attention that, "Hey, we need to re-look at this because it's a result of them and their work environment." 

As a marketer, it's my responsibility that before this ash goes out into the public, what we do is we give 

samples of all of these ashes, whether it's fly ash, bottom ash, boiler slag, gypsum, whatever -- and we sell 

millions and millions of tons of this stuff. We give a sample to them to take to a lab, and they test it. We 

have our own lab, and we test it. 

And never once have we had to come out and say, "We can't market this to you because a TCLP test, a 

heavy metal exceeds a -- a safe rating." We've always been within the right parameters. Many times our --

in our ash the heavy metals don't even become traceable. There's no trace of them. 

Therefore, we recommend a Subtitle D prime approach and the continued beneficial use. And if there's 

problems with engineering, which is the real cause of what happened at TVA was an engineering fault 

with the dam, address that. But my experience and my social responsibility as a marketer for ash, I can 

sleep very good at night knowing that we're putting a safe product out into the market
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Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0112-1

Organization1:University of Tennessee

Commenter1:Gregory Button

Commenter Type: Academia

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

As an environmental health researcher who has conducted over three decades of academic research on 

environmental hazards and disasters, including the 2008 TVA ash spill in Kingston, Tennessee fo -- fossil 

fuel plant, I strongly support the EPA's decision to regulate coal ash and urge the EPA to adopt Subtitle C 

option. 

There can be no dispute that coal ash is hazardous and contains numerous toxic chemicals, including 

mercury and lead, as well as other harmful substances. Only junk science would propose otherwise. While 

the coal industry would have us endorse junk science, robust scientific evidence strongly suggests that 

such claims are erroneous. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0128-1

Organization1:Central Alabama Electric Cooperative

Commenter1:Terry Mitchell

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

Electricity is the fuel of the Information Age, and coal accounts for more than half of the electricity 

produced in the United States. Over the past 30 years, utilities and specialty companies have found ways 

to increase the ability to recover coal residue. And I know for a fact that that is true, for my -- over a 

decade, my father fed, clothed and educated his family by working for a company that's an -- that -- that 

collected the fly ash in Wilsonville, Alabama. 

I can look each of you in the eye today and tell you that I have touched fly ash. I have washed it from my 

father's truck, and I have seen it on the clothes of my father when he came home from work. I can tell you 

that fly ash is not and does not need to be considered a hazardous waste. 

For every ton of fly ash that is used is a ton that doesn't go into a landfill that we have to back up with our 

federal moneys and our local moneys. You know, using fly ash in something as simple as concrete is a 

great way to Build Green without sacrificing quality or cost. 

Central Alabama, as you've already heard, is a member of PowerSouth. It's an energy cooperative that, 

since 1941, has been able to handle its own fly ash and has done an outstanding job with it. 

But I ask each of you to think about Winfred and Mable Grogan, an older couple that lives close to my 

home. They have a modest home and they live on a fixed income. Seventy cents out of every dollar they 

pay for retail power -- for purchase power, 60% of that comes from coal. They are the members who 
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remember when the lights came on. They are not the type of people who would ask for help. In fact, they 

would forgo medical treatment just to keep their power on

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0151-1

Organization1:Physicians for Social Responsibility

Commenter1:John Rachow

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

Heavy metal toxicity to humans is a (sic) established medical fact. And there is ample evidence of the 

mechanisms by which toxic heavy metals move from dumped coal ash into our soil and water to be taken 

up directly or, in more concentrated form, via the food chain. 

Current management practices vary markedly from state to state resulting in the dis -- disturbing interstate 

transport of coal ash to states where dumping is less strongly regulated. 

I am from Iowa, a state where -- with -- that has become an importer of coal ash for disposal, often in 

open dump sites that were exposed to the two 500-year floods that we've recently had, in Iowa, just 15 

years apart. Run-off enriched in leached heavy metals, certainly makes Iowa a leading contributor to the 

toxic burden on the Mississippi River Watershed to the Dead -- Dead Zone in the Delta and to the 

invaluable Gulf fisheries. 

The cheapest, easiest methods of disposal are chosen by industry. In fact, industry even touts the 

beneficial uses of coal ash where benefits accrue to the industry, but at the same time, failing to accept 

responsibility. 

The health costs of mishandling of coal ash are clear. The safety of so-called beneficial uses of coal ash 

are unproved. 

Coal ash does not pose a -- a health risk in just an individual state, it is not just an interstate health issue, it 

is a grave national problem. Failure to safely, responsibly manage coal ash with the obvious consequences 

for human health is a growing national threat that requires federal regulation.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0085-2

Organization1:

Commenter1:Bill Chlebowy

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

The anti-coal ash crowd says coal ash contains harmful constituents that can lead to sickness and death, 

and for those reasons, coal ash must remain regulated as a hazardous waste. To prove their point, they

point to contaminants in coal ash such as arsenic, barium, cadmium, copper, lead and mercury, nickel, 

selenium and zinc. Guess what? These elements are present at comparable levels in soil, sometimes at 
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higher levels than coal ash. 

The anti-coal ash crowd says leachate from coal ash can also cause sickness and death. They imply that 

water passing through other natural mediums is pure as the wind-driven snow. 

The fact is that coal ash leachate may be purer than water from natural impounds -- impoundments, such 

as those in eastern Kentucky with prevalent New Albany shale formations. In those impoundments, you'll 

find water with the pH of 4, and the surface will have an oily sheet to it. Test data does not support 

classifying coal ash as hazardous

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0145-2

Organization1:

Commenter1:Barbara McKasson

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 7.1

Comment Excerpt Text:

What is happening in my state of Illinois is a prime example of why we need the U.S. EPA to implement 

regulations for coal combustion waste. The state of Illinois has more contaminated sites from the 

inappropriate disposal of coal ash than any other state. A case in point is the situation at the Southern 

Illinois Power Cooperative, SIPC, at the Lake of Egypt south of Marion, Illinois near where I live. The 

holding ponds at SIPC are unlined and leaking into the groundwater. The plumes of toxic water have now

spread off of SIPC's property and onto people's private land. 

According to a report on damaged cases of contamination from improperly disposed coal ash, monitoring 

wells by the SIPC power plant have registered maximum concentrations of cadmium that are 35 times 

higher than the federal acute water quality standards and up to 352 times higher than the federal chronic 

water quality standards. Also, recent data on pond discharges to Saline Creek show high concentrations of 

aluminum, boron and manganese. This was documented in the report "In Harms Way: Lack of Federal 

Coal Ash Regulations Endangers Americans and their Environment." 

Actually, only cadmium, boron, iron, and sulfate are being routinely monitored -- monitored at the SIPC 

site. Other toxics that are found in coal, such as arsenic, mercury, selenium and chromium are not even 

being monitored at the SIPC site. 

In addition, people I know who live in the subdivisions surrounding Lake of Egypt tell me that there are 

at least 20 trucks a day carrying coal ash from the power plant property to off-site areas. One off-site area 

is an abandoned strip mine north of Williamson County Airport where the toxic coal ash is being dumped. 

There is no monitoring well, there are no liner and no state regulations to keep the toxic substances in this 

ash from seeping into the groundwater and nearby wells. Another concern is the decades-old coal ash 

ponds by SIPC are right by Lake of Egypt, which provides drinking water for about 10,000 people who 

live around Lake of Egypt. Local citizens in another area by Joppa, Illinois testified that coal ash waste is 

being dumped in piles from another plant and blows into the air when it dries. Citizens living close to the 

dump site complained at the hearing at -- for permit for chronic and acute respiratory problems that they 

attribute to the coal ash blowing on their property. 

In December 2009, I attended a hearing concerning NPDES water discharge permit for the Met-South 

Coal Combustion Waste disposal facility owned by Electric Energy, Inc. in Joppa, Illinois. At this 

hearing, officials with Illinois EPA explained that coal ash waste dump sites may require a solid waste 

permit from the Bureau of Land or they may be permit-exempt. In fact, the IEPA official explained that 

the only requirement for a coal ash waste landfill in Illinois is that the operator must provide Illinois EPA 

with documentation that a public official has been notified of the forthcoming dump. There is no 
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opportunity for public input or debate. So, even though there is threat of toxic chemicals leaching into the 

groundwater from a dump, there is no special environmental consideration given to coal waste landfills. 

In fact, in Illinois, coal ash landfill requirements are less stringent that (sic) municipal waste landfills. 

Local citizens at the Met-South hearing testified that coal ash waste is being dumped in piles, and blows 

into the air when it dries. Citizens living close to the dump site complained at the hearing of chronic and 

acute respiratory problems that they attribute to the coal ash blowing onto their property. 

I have also been contacted by Wesley Logan, who grew up in Joppa, Illinois, and still has many relatives 

there. Wesley's father, Bobby Logan, sued LaFarge Cement Company and Electric Energy, Inc. for 

putting coal ash on Liberty Ridge Road by his house in Joppa, Illinois. Every time a vehicle drove by on 

those roads, the ash would fly up in the air, and spread to nearby yards and houses. Bobby Logan, his 

wife and other people on those roads got cancer, serious respiratory problems and other health problems. 

These threats to public health from using coal combustion waste in ways that release toxic chemicals into 

our air and water with virtually no regulations to contain or filter the toxins is totally unacceptable. 

According to the investigative report titled "In Harms Way," done by the Environmental Integrity Project, 

many state governments have few or no safeguards to protect the public from the spread of these toxins. 

Illinois and other states that have lax regulations or no regulations on coal combustion waste are even 

taking waste from other states with stricter standards. Thus, putting the people in Illinois at greater risk 

from these toxins.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0168-1

Organization1:

Commenter1:Virginia Bush

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

While I'm glad that the EPA is pursuing federal regulation of coal combustion waste, a cursory review of 

the two proposals highlights the extreme difficulty, if not impossibility, of assessing the potential risks of 

groundwater, surface water and aquifer contamination by heavy metals. These metals can leach or flood 

from coal combustion waste disposal sites. 

The World Health Organization, the EPA, and the Agency for Toxic Substance and Disease Registry all 

classify inorganic arsenic, a constituent of coal combustion waste, as a Class A carcinogen. Chronic low 

level exposure through drinking water can lead to urinary, skin and blood cancers. Risks from exposures 

through contact with contaminated soil or inhalation of dust are less understood. 

Arsenic and mercury, another waste constituent, are both known to cause neurologic injury, including 

lowering of IQs and fetal anomalies. These are the social costs that are -- that are externalized by the coal 

and power corporations and borne by the public at unquantifiable amounts in healthcare costs and 

suffering.

Response: The Agency acknowledges and appreciates the comment. 
296

Comment Number: TRANS-PIT-0018-1

Organization1:FirstEnergy (spoke as employee)

Commenter1: Marshman

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I represent utilities workers, and we are asking for a mandate of funds from the revenue of the reuse of fly 

ash. The safeguard, the public and maintained health benefits contribution for employees that are directly 

and indirectly exposed to fly ash on a daily basis. 

At the facility where I work in Shippingport, the employer is First Energy, and there has been an increase 

in cancer, heart, and respiratory illness. We breathe, we walk in it, it's on our clothes, it's on our body, 

hair, and even on our cars parked in the parking lot. 

Over 10 percent of our workforce have had cancer or died of cancer. We cannot contribute 100 percent to 

the working conditions nor can we rule out the fact that a certain percentage of the heart disease and 

respiratory and cancer is our contribute to our conditions. 

As a compromise between workers' compensation and the healthcare contribution at the time when 

companies like First Energy is reducing their healthcare, especially for retirees with a mandatory threeyear contribution after that you have to pay 100 percent for your healthcare. We came to negotiating a 

fairly decent pension to offset the cost of our healthcare. So what a retiree will be facing is a memo of 

three years coverage, 100 percent, taken out of the very minimum pension that he would receive to pay 

for him and more than likely his spouse to continue under a quality of life. 

In closing I'd like to say that everyone is responsible, the EPA, the DEP, the community, the employers of 

these utilities. I'm not asking either/or, all I'm asking is responsibility. I want everyone to make it the right 

decision and proposal to mandate the regulation for fly ash. We all understand that it does have heavy 

metals in it so that's not to be disputed between no one. We have need to address the concerns and issue

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0022-1

Organization1:Group Against Smog and Pollution

Commenter1:Jamin Bogi

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 6.1.2 3.1.1

Comment Excerpt Text:

I work for the Group Against Smog and Pollution, or GASP, a nonprofit environmental organization 

based here in Pittsburgh. GASP strongly supports regulating coal combustion residuals under Subtitle C 

of the Resource Conservation and Recovery Act. CCRs are currently exempt under an amendment to 

RCRA, but EPA's new leach tests show that current storage methods of CCRs often lead to their leaching 

in concentrations that exceed hazardous waste thresholds many times over. It makes no sense to weakly 

regulate such toxic material.

Human beings did not create coal. We did not choose its chemical makeup. We have to take what Mother 

Nature has given us. Unfortunately, she saw fit to include arsenic, exposure to which causes nausea, 

arrhythmias, several types of cancer, cardiovascular disease, and even death at high-enough doses. EPA's 

2009 study report of leachate found arsenic levels 1,800 times higher than the federal drinking water 

standard, and three times the level of the hazardous waste standard. Nature has put selenium in coal as 

well. Selenium over-exposure in animals leads to impaired vision, paralysis, and death. Selenium 
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bioaccumulates and causes deformations in fish and amphibians. It has wiped out entire fish populations 

in some locations. The EPA's report found selenium in leachate at levels 29 times the hazardous waste 

threshold. 29 times.

I'll stop my chemical analysis here, because I know that nothing that I could possibly say would be news 

to you. The EPA has conducted such an impressive amount of research on this topic that one could spend 

a decade or two mastering it.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0074-1

Organization1:Clean Water Action

Commenter1:Tom Hoffman

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

For 38 years Clean Water Action has succeeded in winning some of the nation's most important 

environmental protections through grassroots organizing, expert policy research and political advocacy 

focused on holding elected officials accountable to the public. Here in Pennsylvania we have been very 

active on reducing diesel pollution, advocating for reductions of PM2.5 pollution, protecting citizens from 

the environmental dangers of drilling for natural gas in the marcellus shale and helping clean up our three 

rivers by reducing stormwater runoff. 

In fact, many of our members are in Harrisburg today lobbying for strict oversight of the marcellus shale 

drilling industry. 

Coal ash is a growing problem across the nation. The EPA and the National Academy of Sciences 

research show that coal ash is toxic, and threatens human health. Studies have shown that these coal ash 

sites are so toxic that they can increase cancer risk to a staggering 1 in 50. That needs to stop now. 

Americans deserve clean, safe energy, not another assault on the health of hard-working families. We 

applaud the EPA for recognizing the very real health and environmental risks posed by toxic coal ash. 

Given these risks, enforceable federal safeguards -- not state guidelines -- are necessary to protect our 

state's families. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0125-2

Organization1:Steven Smith

Commenter1:Bill Price

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

My own water supply lies about 150 to 200 feet below the bed of the lake. We have all heard that cliche 
298

of what rolls downhill. Water rolls downhill too. That water leaches into my water table and it is this 

water that I bathe in daily. I quit drinking the water over 10 years ago due to my own concerns, and 

although, I know of several instances where First Energy has compensated some for damage to their 

wells, I have heard nothing from First Energy concerning that. The water has damage appliances in the 

home, and quite possibly me, as I had cancer at the age of 45, when I did not drink or smoke. I have 

always been assured that my drinking water that was tested was safe, but now I hear that First Energy has 

to remove the silt/fill form the lake and install a liner. Why should they have to install a liner if everything 

is safe? First Energy has been feeding us a pile of lies from the get go. Congress or the proper institution, 

in this care the EPA, needs to make First Energy accountable for what they have exposed this community 

to and make full restitution to all. 

This is a letter in support and I support of coal ash regulation Subtitle C

Response: The Agency acknowledges and appreciates the comment. 

Section 6.1.2 - General concerns/info about ecological risks/adverse impacts from CCRs

Total Number of Submissions: 49

Total Number of Comments: 52

Comment Number: TRANS-ARL-0026-1

Organization1:Friends of the Earth

Commenter1:Erich Pica

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 6.1.1

Comment Excerpt Text:

Around the country today there are more than 431 disposal sites for coal ash. Our members and 

supporters live near these facilities. The coal ash at these sites contain a toxic soup of chemicals, 

including arsenic, cadmium, chromium, lead, selenium, and others which have been linked to cancer, 

organ disease, respiratory illnesses, neurological damage, and reproductive and developmental 

problems. 

Forty-nine of these sites have been listed by the Environmental Protection Agency as high-hazard 

potential. Every year more than 130 million tons of coal ash is being added to these sites. This is enough 

to fill train cars from the North Pole to the South Pole. As we recently witnessed with the Tennessee 

Valley Authority, there is a lack of federal enforceable standards. In 2008, a dam holding more than 1 

billion gallons of toxic coal ash sludge failed, destroying 300 acres, dozens of homes, killing fish and 

other wildlife, and poisoning the Emory and Clinch rivers. Fortunately, nobody was killed. 

In addition to the risk of catastrophic failure from the TVA dam, communities around coal ash sites are 

suffering a slower, more insidious fate. People living near unlined coal ash ponds where water is 

contaminated by arsenic and ash is mixed with coal refuse have extremely high rates of cancer: Up to 1 

in 50. This is 2,000 times greater than EPA's accepted cancer risks. 

Response: The Agency acknowledges and appreciates the comment. 
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Comment Number: TRANS-ARL-0028-1

Organization1:Religious Society of Friends - Earthcare Witness of the Americas

Commenter1:Barbara Williamson

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Comment Excerpt Text:

I first became aware of the problem of coal ash when I read an EPA report that told me that 48 percent of 

coal ash dump sites had contamination that had moved off- site and poisoned streams and drinking water. 

In the Appalachian Mountains where I grew up, sites have been known -- have been shown to have water 

travel at least a mile to contaminate streams and drinking water wells. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0031-1

Organization1:

Commenter1:Steve Tuttle

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

Five hundred years ago, the land, air, and water were so much cleaner. Why do we as humans have to 

destroy what is around us? Coal ash dumps similar to Mirant's Potomac River Power Plant, leach arsenic 

and lead and mercury into our water. In Maryland, three major coal ash leak sites belong to the Mirant 

Corporation. Why don't people who make a mess clean it up? Coal companies have done so much 

damage to the environment and no one holds them accountable. In the past, they have polluted the water 

and destroyed mountains. 

I support Subtitle C and -- because that would give you, the EPA, the ability to enforce uniform federal 

standards and coal ash could then be regulated as a hazardous waste that it is. It is my job to take care of 

my health and it is cheaper to stay healthy. But I have to breathe the air here. I wish it was cleaner. We 

must do a better job and not allow heavy metals to leach into our water supplies. It is so expensive to try 

to clean that up. 

The business model for Mirant appears to be create energy from coal by spending the least amount of 

money. The industry standard should be who can do the least amount of damage to the environment and 

make energy while they clean up the mess they make. Please help the coal industry learn to be responsible 

so we all can live in a less polluted area.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0037-1

Organization1:

Commenter1:Rebecca Kolberg

Commenter Type: Private Citizen
300

Classification: Substantive

Comment Excerpt Text:

Secondly, to protect wildlife near coal ash landfills the EPA needs to require strict management and 

treatment systems to protect not only groundwater, but surface water and wetland areas. The landfill 

proposed for my area would be built adjacent to non-tidal wetlands built for mitigation purposes as well 

as adjacent to and upstream from tidal wetlands. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0039-1

Organization1:Izaak Walton League of America

Commenter1:Scott Kavarovics

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

With our members, conserving and protecting water resources is of utmost importance. The league 

supports a strong and appropriate solution to the widespread pollution caused by inadequate storage of 

coal ash waste. Specifically, the league urges EPA to issue a final rule that regulates coal ash as special 

waste under Subtitle C of the Resource Conservation and Recovery Act. 

Water quality is especially at risk from unregulated coal ash storage and disposal. As others have alluded 

to, most plants are close to fresh water resources because of the vast amount of water they use, and then 

on- site storage of coal ash in unlined ponds and on the surface poses direct and serious threats to surface 

and groundwater resources by their close proximity to these waters. 

Coal ash contains a host of toxic substances and heavy metals. And I'll highlight just one from a fish and 

wildlife perspective: Selenium easily moves from coal waste into the water. It becomes more 

concentrated in the aquatic food chain. It can render fish unsafe to eat and ultimately cause reproductive 

failure in fish populations. And birds that eat fish containing high levels of selenium may also experience 

reproductive failure. 

Strong and effective federal regulations are necessary because a majority of states do not require 

safeguards at most coal ash landfills and ponds. Under the Subtitle C option, which the league supports, 

all states would set equivalent standards for the generation, storage, transportation, and disposal of coal 

waste; require permits for disposal facilities; and phase out waste ponds. Proper disposal should require 

composite liners, leachate collection systems, adequate groundwater monitoring, and corrective action, all 

of which are necessary to afford more protection to the public health, fish, and wildlife. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0073-2

Organization1:Maryland Commission on Environmental Justice and Sustainable Communities

Commenter1:Vernice Miller Travis

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1
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Comment Excerpt Text:

Lastly, water quality. Few coal combustion waste disposal sites are subject to Clean Water Act permits 

that monitor or limit the full range of toxic metals that are discharged from coal combustion waste 

disposal sites. At a minimum, EPA must take basic steps to protect the off-site environment at coal 

combustion waste sites and set limits on the discharge of leachate or waste water that are based on best 

available treatment and containment standards and which are designed to protect rivers and streams. This 

is particularly important in a state like Maryland where rivers and streams empty into the ecologically 

fragile and highly threatened Chesapeake Bay. For these reasons and so many more, I support Subtitle C.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0014-1

Organization1:Congressman Mike Quigley

Commenter1:Kimberly Walz

Commenter Type: Federal Elected Official

Classification: Substantive

Other Sections: 3.1.1 6.1.1

Comment Excerpt Text:

Colstrip, Montana is home to the second largest coal plant west of the Mississippi. One boxcar-full of 

coal is burned every five minutes. The burning of coal creates sodium, thallium, mercury, boron, 

aluminum and arsenic which is pumped out of the factory and into the air. The chemicals that aren't 

pumped into the air are caught in the factory's scrubbers and then dumped with the coal ash into giant 

settling ponds. 

These ponds are shallow artificial lakes of concentrated toxicity which leach this poison into wells and 

aquifers. This sludge flows into the surrounding towns and countryside, bubbling up against foundations 

and floorings, cracking the floor in Colstrip's local grocery store. 

Ranchers in Eastern Montana are now suing the plant for damages. Noxious water, they cite, is the only 

liquid that fills their wells and stock ponds. James Hansen, a renowned climate scientist, says Colstrip 

will cause the extinction of 400 species. 

But still, Colstrip burns on. We are poisoning our ecosystem and our animals. 

But we are also poisoning our families, our communities, our nation and our entire world. Why? Because 

there are currently no federally enforceable regulations specific to coal ash. This lack of federally 

enforceable standards is exactly what led to the disaster in Tennessee where a dam holding more than one 

billion gallons of toxic coal ash failed, destroying 300 acres, dozens of homes, killed fish and other 

wildlife, and poisoned the Emory and Clinch Rivers. 

From Tennessee to Colstrip, the story is the same. Living near an unlined coal ash waste pond and 

drinking water contaminated with arsenic can be more dangerous than smoking a pack of cigarettes a day, 

according to a risk assessment done by the EPA. People living near unlined coal ash ponds where water is 

contaminated by arsenic and ash is mixed with coal refuse, whether they're in Tennessee or in Colstrip, 

have an extremely high risk of cancer up to 1 in 50. This is 2,000 times greater than EPA's acceptable 

cancer risk. 

As Al Gore wrote in 2005, "it is now clear that we face a deepening global climate crisis that requires us 

to act boldly, quickly and wisely." Coal ash is a piece of the larger climate crisis, a crisis that has a hefty 

cost--the cost of carbon. 

So, as we burn coal, creating sodium, thallium, mercury, boron, aluminum and arsenic which is pumped 

out of the factor and into the air, we can continue to do that. We can blow the tops off mountains, 

allowing streams of toxicity to leach coal slurry poison into wells and aquifers. We can send tar sands 

1,700 miles across our soil. 
302

Or we can stop stripping our land, polluting our air and water and do what's right. The first step is to 

establish comprehensive, federally enforceable standards that protect human health, wildlife and the 

environment. Coal ash must be regulated under Subtitle C of the Resource Conservation and Recovery 

Act as special waste with all the safeguards that apply.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0043-1

Organization1:

Commenter1:Aaron Turkewitz

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 6.1.1

Comment Excerpt Text:

I'd like to begin by saying I applaud the fact manifested in these hearings that the EPA has come to 

recognize the serious health and environmental risks posed by coal ash. 

The scientific findings including studies from the preeminent body of US Science and National Academy 

make it abundantly clear that the residues concentrated in coal ash are capable of degrading both human 

and environmental health. My own laboratory has recently become involved in developing new sensors to 

detect environmental pollutants, particularly heavy metals like those which leach from coal ash. One 

lesson I have quickly absorbed is that it is vastly more difficult and expensive to deal with pollutants that 

are dispersed in the environment than it is to take steps to prevent their dispersal in the first place. Here I 

am not even talking about the difficulty and cost of remediating environmental damage but just the cost of 

detecting it to begin with.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0092-2

Organization1:Protestants for the Common Good

Commenter1:Courtney Eccles

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Other Sections: 6.1.1 9.2.3

Comment Excerpt Text:

We're particularly concerned about coal ash because we consider it to be an environmental issue, a health 

issue and a justice issue. Coal ash sites can contaminate water sources with dangerously high levels of 

arsenic, selenium, mercury, cadmium and many other toxins. And these toxins endanger the plants and 

animals located in those waterways, not to mention contaminate drinking water. For individuals that live 

near or around dumping sites, there are grave health concerns. According to an EPA risk assessment, 

living near a coal ash site is more dangerous than smoking a pack of cigarettes each day. The risk of 

getting cancer can be as high as 1 in 50 individuals, and all of these health concerns are even more grave 

for young children and infants. 

Furthermore, those families or individuals who live near coal ash sites probably have no idea what the 
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risks are. Many of them may not even know that they live near a site. And for those that do, they may 

very well not have the economic ability to move elsewhere. And we consider that a huge justice issue.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0180-2

Organization1:National Parks Conservation Association

Commenter1:Nathan Miller

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

In the absence of mandated, installed liners and leachate collection systems, toxins in coal waste have the 

ability to seep from landfills and waste ponds, thereby contaminating or threatening to contaminate rivers, 

lakes and streams that fish and other wildlife depend on. An example of this is selenium. This and other 

toxins prevalent in coal combustion waste threaten the health of aquatic and terrestrial animal, plants and 

their ecosystems. These toxins make fish, for example, unsafe for people to consume.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0015-2

Organization1:Colorado Interfaith Power and Light

Commenter1:Betty Goebel

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Comment Excerpt Text:

Through our state organizations, congregations of all faith traditions worked together on energy and 

climate issues. Today I, with other religious leaders who will speak later, are asking the EPA to adopt 

Subtitle C.

All faith traditions share a concern for the environment, the gift of creation. We're concerned about the 

use of coal because of its impact on global climate change, but today it's about a different hazard, coal 

ash, which has a long list of toxins which I will not repeat.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0061-2

Organization1:Rocker Six Cattle Company

Commenter1:Clint McRae

Commenter Type: Other Company

Classification: Substantive
304

Comment Excerpt Text:

A cousin and neighbor who was checking water a year or so ago, this time of year in August and 

September, realized that there was water coming from the ground up into a reservoir, which does not 

appear in that time of year. 

He watched a deer come out of the timber and go in the water up to her chest. She never drank and went 

back to the timber. He tested that water. It was extremely high in many things, one of which is what I 

want to talk to you today about, and that's sulfates as it impacts cattle. 

The toxicity level for sulfates is 500 milligrams per liter. The sulfate levels in this reservoir from the 

leaking ash ponds was 8,100, nearly 16 times the toxic level of sulfates. If a cow would drink this, she 

would die. 

What is happening in my backyard is no stigma. It's real. This is an agricultural issue. It's a herd health 

issue

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0091-2

Organization1:Physicians for Social Responsibility

Commenter1:Steven Gilbert

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 6.1.1

Comment Excerpt Text:

The coal ash spill that inundated Tennessee occurred at a time that caused the least acute effects on 

human health, as in no was killed. Everyone was very lucky, except the economical damage was 

enormous and there was serious consequences for many families. 

While I commend the emergency response and subsequent monitoring by the EPA and the report by the 

Tennessee Department of Health, the broader is one of protecting human and environmental health from 

coal ash waste. Coal combustion waste with its many contaminants is the second largest industrial waste 

treatment in the United States. 

We have an ethical responsibility to protect the most vulnerable among us from exposure to arsenic, 

mercury, and other coal ash contaminants in the air we breathe, the water we drink, and the dirt we play 

in. This is particularly important for children who are not little adults as they eat -- eat more, drink more, 

breathe more than adults are more vulnerable to the health effects from asthma to cancer to neurological 

disorders. All clean-up standards and disposal management standards must be set to protect children. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0022-1

Organization1:Group Against Smog and Pollution

Commenter1:Jamin Bogi

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1 6.1.1

Comment Excerpt Text:
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I work for the Group Against Smog and Pollution, or GASP, a nonprofit environmental organization 

based here in Pittsburgh. GASP strongly supports regulating coal combustion residuals under Subtitle C 

of the Resource Conservation and Recovery Act. CCRs are currently exempt under an amendment to 

RCRA, but EPA's new leach tests show that current storage methods of CCRs often lead to their leaching 

in concentrations that exceed hazardous waste thresholds many times over. It makes no sense to weakly 

regulate such toxic material.

Human beings did not create coal. We did not choose its chemical makeup. We have to take what Mother 

Nature has given us. Unfortunately, she saw fit to include arsenic, exposure to which causes nausea, 

arrhythmias, several types of cancer, cardiovascular disease, and even death at high-enough doses. EPA's 

2009 study report of leachate found arsenic levels 1,800 times higher than the federal drinking water 

standard, and three times the level of the hazardous waste standard. Nature has put selenium in coal as 

well. Selenium over-exposure in animals leads to impaired vision, paralysis, and death. Selenium 

bioaccumulates and causes deformations in fish and amphibians. It has wiped out entire fish populations 

in some locations. The EPA's report found selenium in leachate at levels 29 times the hazardous waste 

threshold. 29 times.

I'll stop my chemical analysis here, because I know that nothing that I could possibly say would be news 

to you. The EPA has conducted such an impressive amount of research on this topic that one could spend 

a decade or two mastering it.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0125-1

Organization1:Steven Smith

Commenter1:Bill Price

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I have watched as the Little Blue Lake slowly consumed hundreds of acres of wooded forest that was 

once heavily populated with game, and watched its lifeless water poison fertile streams and lakes that 

once teamed with aquatic life. Now, Little Blue Lake continues to encroach upon the residents that live 

near its border. 

The residents of this area were told how beautiful the lake would be years down the road and that it would 

be a recreation area for all to use, but look at it now. The area is nothing, but a rotting cesspool of filth 

and pollution. One cannot drive or walk around the lake's borders without smelling the stench that it 

emits. Those that live on the Leeward side of the lake deal with this stench on a daily basis. 

I live just over four tenths of a mile west of the lake's previous waterline. The outline of the lake's western 

border is now filled with silt from the fly ash residue that was pumped into its depths. Rain water and 

other runoff waters that land on the surface of the lake now seep through the fly ash into the water table 

below. The lake is on a plateau above most of the neighboring community and any water that runs off 

from the lake travels downhill to the residents below. The water flows through resident's yards and 

gardens exposing inhabitants to even more of this toxic soup

Response: The Agency acknowledges and appreciates the comment. 
306

Section 6.2.5 - Other GW modeling comments

Total Number of Submissions: 10

Total Number of Comments: 11

Comment Number: TRANS-CHI-0052-1

Organization1:Will County Environmental Network

Commenter1:Mary Baskerville

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

We speak today in strong support of federal regulation of coal ash and point to the need for the regional 

impact to become part of the EPA review of coal ash projects. 

We speak from experience. Several of our members have had wells impacted because water draw-down 

in the region was responsible for drawing boron offsite along Brandon Road and Joliet. We worked hard 

to prevent a clean construction debris disposal proposal from being granted because the dewatering of a 

spring-fed quarry at the proposed CCDD site would have created additional draw-down of water. Water 

modeling showed it would have resulted in additional draw-down and an additional pool of ash 

contaminants offsite leading to many residential well contaminations. 

The network worked hard with the Illinois Environmental Protection Agency to have them take a forward 

position in looking outside the boundary of the CCDD application to take a look at what would happen if 

they allowed that quarry to be dewatered and the resulting pool of contamination from a separate quarry. 

That change prevented additional groundwater contamination and points to the importance of the regional 

review of projects. Network members urge that the regional impact of each and every project coming 

before you not only for ash fill but for additional purposes and permitting become part of the review 

process.

We urge that EPA change past practices at looking just within the boundaries of a project and when 

deciding whether to permit it or not, and take a look and see if it would have any regional impacts, 

particularly in terms of groundwater draw-down. Groundwater in our region in Will County is being 

lowered and it's an important piece of this puzzle in reviewing fly ash regulations.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0012-1

Organization1:

Commenter1:Joby Adams

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I've been a practicing hydrogeologist for the past 24 years. Most of my work has been with -- focusing on 

groundwater investigations and RCRA-related corrective actions. 

In 1998, though, I was asked to evaluate the feasibility of using coal ash to reclaim flooded gravel 

quarries on the Front Range of Colorado. This lead me to a number of short and long-term leaching tests 
307

comparing various combustion residues. I also did leaching tests comparing materials considered inert 

such as recycled asphalt and concrete. 

The results of my bench-scaled testing then lead to a field-scaled test where I buried 400 tons of coal 

ash beneath the water table in an unlined pit. This was done under a Department of Energy grant and 

permitted by the State of Colorado. 

At the end of our one-year monitoring period, which we monitored the water qualities of the coal ash 

and aquifer up- and downgradient, we had violated no water quality standards as established by the 

State. 

When I became aware the EPA was contemplating regulating CCRs under Subtitle C, it reminded me of 

an article I read in 1991. The name of this article is called New Measure of Risk, and the premise of the 

article is that when people do not understand the scientific processes and trying to eliminate every risk 

that is presented, the public resources are directed to areas that are of little benefit and -- or come at a 

staggering cost. I believe that if CCRs are regulated under Subtitle C, this will be the case. 

Response: The Agency acknowledges and appreciates the comment. 

Section 6.3.1 - Use of TCLP and SPLP data and availability of other data

Total Number of Submissions: 38

Total Number of Comments: 60

Comment Number: TRANS-KNX-0117-1

Organization1:

Commenter1:George Hyfantis

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I teach graduate-level courses in solid and hazardous waste management. 

The emphasis of this class now and for the last 30 years has been teaching engineers how to characterize 

waste and to design landfills. For these last 30 years or so, I've been perplexed about the decision to allow 

coal combustion residuals, CCRs, to be disposed of in ponds along the side of rivers. 

The standard technique for determining whether or not a waste is hazardous has been and, to my 

knowledge, continues to be the toxicity characteristic's leaching procedure. And I'll use TCLP. There 

exists abundant data in the literature concerning the chemical characteristics of CCRs, and similarly, there 

exists abundant data concerning the concentrations of contaminants in TCLP extracts. 

Analytical results for both the total CCR concentrations and TCLPs vary significantly, and are based on 

the coal source, the combustion technology, and the pollution-control technology, among other things. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0049-1

Organization1:Boulding Soil-Water Consulting

Commenter1:Russell Boulding

Commenter Type: Other Company

Classification: Substantive

Other Sections: 5.2
308

Comment Excerpt Text:

In my limited remaining time I would like to focus on new data to supplement the December 2009 EPA 

report by Kosson and others, a report which finally presented results of leaching tests that more accurately 

reflect the potential to contaminate groundwater. 

Even with my familiarity with the inadequacy of the TCLP and other leachate tests that have been used to 

argue that coal combustion waste is benign material, I was startled by the results in this report that 

showed maximum concentrations of arsenic, antimony, chromium and selenium far above the maximum 

found in previously reported tests. 

The main point I would like to make here is that even these more accurate leaching tests underestimate 

the potential for lead contamination for coal com -- from coal combustion waste. 

In Attachment C I have provided a list of nine disposal sites in the recent report by the Environmental 

Integrity Project where measured concentrations of lead in groundhouse -- groundwater were higher than 

the maximum reported in the Kosson report. 

One private drinking water well was 51 times higher than the highest leachate value in that test. 

The failure of the current patchwork regulatory approach by states to control the harm to human health 

and the environment has been eloquently and abundantly shown by the testimony of citizens who have 

been directly affected. And as a scientist in talking with this damage cases it was just -- it just brought it 

home to me in -- in a -- in a way that I'd never felt before. 

The science is also clear that the Subtitle C regulatory option is both appropriate and necessary.

Response: The Agency acknowledges and appreciates the comment. 

Section 6.4.3 - Exposure to SI effluents

Total Number of Submissions: 3

Total Number of Comments: 4

Comment Number: TRANS-CLT-0146-1

Organization1:Appalachian Voices

Commenter1:Eric Chance

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1 8.5

Comment Excerpt Text:

Based on a review of the voluntary groundwater monitoring data, every coal ash pond in North Carolina 

for which data was available is leaching heavy metals and other pollutants into groundwater. This 

leaching is causing heavy metals to be taken outside of the waste boundary. Equally as alarming is the 

prevalence of groundwater contamination at these sites is the level of contamination. Monitoring showed 

681 exceedances of State groundwater standards including arsenic levels up to 8.8 times the State 

standard, boron levels up to 16.6 times the State standard, chromium levels up to twice the State standard, 

iron levels up to 380 times the State standard, lead levels up to three times the State standard, and 

manganese up to 200 times the State standard. This contamination not only has the potential to damage 

nearby waterways, but it can also contaminate the drinking water of nearby residents. And only one of the 

13 ash ponds reviewed by this study has NC Department of Environmental and National Resources 

required any sort of cleanup or monitoring or further monitoring action. 

Appalachian Voices has also partnered and researched in the wake of the Kingston, Tennessee coal ash 

spill. Research has been ongoing since the spill and has shown levels of arsenic, barium, cadmium, lead 

and selenium in the Emory River exceeding protective drinking water standards and/or aquatic life 

criteria. Although water quality has returned to a more normal state since the spill, ash and ash-laden 
309

sediments with high levels of arsenic have washed far downstream from the spill site. Also, selenium 

levels in fish downstream from the site continue to rise and at exceeded threshold levels for reproduction 

and growth. 

Our research clearly shows that coal combustion waste has significant impacts on groundwater, surface 

water and aquatic organisms. Current regulatory framework does not adequately address the toxicity of 

coal ash and has allowed the contamination of our nation's water to go on for too long. 

Our research shows that coal ash is hazardous to the environment and we believe it should be regulated as 

a hazardous waste under Subtitle C

Response: The Agency acknowledges and appreciates the comment. 

Section 6.4.7 - Other exposure scenario related comments

Total Number of Submissions: 13

Total Number of Comments: 26

Comment Number: TRANS-CHI-0002-1

Organization1:People in Need of Environmental Safety (PINES)

Commenter1:Larry Jensen

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

My testimony here, however, involves the radioactive aspects of the coal ash. By way of substantiation, 

well, coal contains radioactive materials, natural radioactive materials. These are not degraded or 

destroyed by the burning process, and so they are in the fly ash itself. By way of substantiation of my 

credentials, I've worked for the EPA Region 5 for 21 years. I was a radiation health physicist, and most of 

that time I was either the regional radiation expert or the superfund radiation export and I did risk 

assessments for EPA. I received five bronze medals and a gold medal for the work I did, three of which 

were in the cleanup of a small town much like Pines. 

Last year on October, I did a radiation survey in Pines to determine that there was radioactive materials 

along their streets; there was. It was statistically separate from background so it was real, material. There 

is a limited amount of data on the concentration of radioactive materials from a landfill but when I 

worked for EPA we cleaned up based on the uranium mill tailing standards in 40 CFR 192. The level for 

Pines would have been 5.6 picocuries per gram. That's the radium plus the background levels. The 

measured numbers that are present in the fly ash in Pines is more like 24 picocuries per gram. So, 

substantially above the levels we would have cleaned up, too, when I was at EPA. 

Also, I did a risk assessment trying to determine how high that might be. Under the Superfund Law and 

the National Contingency Plan, the upper limit on acceptable risk is 1 x 10-4. The risk that I computed for 

only one pathway for Pines was 13 x 10-4. That involves the gamma exposure. It doesn't include 

inhalation, doesn't include ingestion, and does not include any other radon aspects of it. 

So, I think just from the radioactive standpoint, you can see that coal ash is a material that ought not to be 

going unregulated. And I think the disposal of it, as in Pines, for landfill along roadways is pretty 

ubiquitous. I don't think Pines is at all unique. So, I think you looked around the country, you'd find a lot 

more problems like Pines and are indicative of a much larger problem. And I think RCRA then needs to 

be adjusted so that these coal ash materials are controlled.

Response: The Agency acknowledges and appreciates the comment. 
310

Comment Number: TRANS-DEN-0135-1

Organization1:Physicians for Social Responsibility, Colorado Chapter

Commenter1:Roberta Richardson

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

One is that I was really alarmed to read about some modeling studies that the EPA have done about how 

long it actually takes for some of these toxic elements to migrate through the soils into the drinking water 

sources. And it turns out that it takes 75 to 100 years or so for some of more notorious things to reach 

their peak concentrations in wells from the time they leave the coal ash.

And as some of the children have been pointing out, it's just unconscionable really to think about us 

saying that we're more concerned about money and the robustness of the coal and energy industry than 

what kinds of illnesses will be heaped upon our children 75 to 100 years from now.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0091-1

Organization1:Physicians for Social Responsibility

Commenter1:Steven Gilbert

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

I find that the current RFDs and MRLs for arsenic and mercury to be inadequate. In addition, our 

procedures for assessing health impacts of multiple chemical exposure are grossly inadequate. 

The standard is to do a risk assessment one chemical at a time, but no one is exposed to one chemical at a 

time. To addresses these inadequacies and ensure healthy and sustainable -- sorry, environment, a 

precautionary approach is recommended that we classify coal ash as a special waste.

Response: The Agency acknowledges and appreciates the comment. 

Section 6.5 - Human Exposure and Toxicity

Total Number of Submissions: 1

Total Number of Comments: 1

Comment Number: TRANS-KNX-0048-1

Organization1:Environmental Integrity Project

Commenter1:Abel Russ

Commenter Type: Advocacy Group

Classification: Substantive
311

Other Sections: 9.4.7

Comment Excerpt Text:

I believe that the risk assessment that's in the docket and that's in the preamble to the proposed rule 

underestimates the risks of coal ash, specifically groundwater-based risks. And I think that the benefits in 

the regulatory impact analysis also underestimate the benefits of -- the health protective benefits of 

regulating coal ash. 

The risk assessment, like all risk assessments, includes a number of assumptions, and some of them are 

health protective. Others are seriously underestimating the risk. And specifically, there are combined risks 

to exposures of multiple contaminants that were not accounted for. Although the risk assessment states, 

for example, that arsenic is the only carcinogen in coal ash, there are, in fact, several constituents that are 

likely to be carcinogenic, including cadmium, lead, fluoride, and chromium, and others that we don't 

know enough about. 

The risk assessment also failed to account for possible additive or synergistic non-cancer risks. For 

example, as noted in the preamble, cobalt and antimony are both linked to heart and lung effects and both 

are among the constituents of concern in the final full-scale analysis. There are also at least four 

neurotoxins present in coal ash, only two of which are modeled in the full-scale analysis. 

Although the combined effects of these neurotoxins, for example, on children's developing brains could 

be substantial, these weren't accounted for in the risk assessment. Additionally, at the level of individual 

chemicals, not all roots of exposure were accounted for. And this means, for example, the total arsenic or 

selenium exposure was not captured in risk assessment. 

All of this means that many risks were unaccounted for, and I'm not saying that the risk assessment was 

flawed. I think it was pretty good given the limited information that we have available. But it would be a 

mistake to characterize it as inherently health protective when, in fact, it may have seriously 

underestimated risks. 

And all these things are even more true of the regulatory impact analysis which limited its analysis to 

arsenic and the cancer risks of arsenic. Not only did it lack the health protective assumptions of the risk 

assessment, it also neglected, for example, neurotoxicity, the ecological risk of selenium, and everything 

other than the cancer risk of arsenic

Response: The Agency acknowledges and appreciates the comment. 

Section 6.5.8 - Other human exposure comments

Total Number of Submissions: 8

Total Number of Comments: 15

Comment Number: TRANS-DEN-0037-1

Organization1:

Commenter1:Michael Kosnett

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I'm a physician specializing in occupational environmental medicine and medical toxicology. I'm an 

associate clinical professor at the University of Colorado Denver School of Medicine, the division of 

clinical pharmacology and toxicology. I'm also on the facility of the Colorado School of Public Health. 

However, I'm appearing here today and my comments are not made on behalf of those institutions. 

They're my personal comments. 

I have been involved in the study of the hazards of arsenic for a number of years, and the reason briefly 
312

that I want to address the group today is that many of the health concerns and drivers for regulation of 

coal combustion waste emanate from the leading concern over the risk posed by arsenic, particularly the 

risk of cancer associated with the potential migration of arsenic from coal combustion waste into drinking 

water. 

A document that was released by EPA in April of 2010, The Human and Ecological Risk Assessment of 

Coal Combustion Wastes, identifying the risk from arsenic as being one of the greatest drivers or the most 

significant driver in regulation. 

I'd like to draw EPA's attention to the fact that the risks identified by arsenic in that document are, in fact, 

considerable underestimates of the actual risks posed by arsenic. The key issue is that the slope -- cancer 

slope factor that was used in calculating the cancer risk was based on the IRIS -- current IRIS document. 

That document is based on the identification of arsenic solely as a cause of skin cancer. It was initially 

issued in 1984 and has not been subsequently revised. 

In issuing its revised arsenic and drinking water standard in 2001, EPA explicitly recognized that arsenic 

is a cause of lung cancer and bladder cancer, and the National Research Council recommended as well 

that arsenic should be regulated as a lung cancer and a bladder cancer risk. 

Most importantly and most significantly, the EPA science advisory panel issued a recommended slope 

factor of 25.7, considerably above 1.5, in it's February 2010 final draft toxicological review of inorganic 

arsenic. It is absolutely essential that the risks in EPA's coal combustion ash analysis be revised to reflect 

the more up-to-date information which other branches of EPA clearly recognize.

Response: The Agency acknowledges and appreciates the comment. 

Section 7.1 - State Regulations or Performance Standards: EPA solicits detailed info on state 

regulatory authorities and/or regulatory structure for CCRs; particularly requirements applicable 

to older existing units (35153, 35157, 35224); detailed info on current CCR management practices 

of state programs, including other than state waste authorities (35152, 35224); details on state CCR 

regulations (35157)

Total Number of Submissions: 270

Total Number of Comments: 395

Comment Number: TRANS-ARL-0109-1

Organization1:Sierra Club

Commenter1:Drew Ball

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.2.4

Comment Excerpt Text:

We applaud EPA for recognizing the very real health and environmental risk posed by toxic coal ash. 

Given the seriousness of these risks, enforceable federal safeguards, not suggested state guidelines, are 

necessary to protect communities. Having done extensive work on coal ash within North Carolina, 

particularly with North Carolina state government, I can say firsthand that some states are not doing an 

adequate job of protecting communities from the dangers of coal ash. Strong federal safeguards needs to 

be issued quickly before more communities are exposed. Continuing to ignore scientific and safety 

concerns could come at a very high cost. 

North Carolina issued -- I'm sorry, the North Carolina Sierra Club issued a report on April 11th -- April 

12th of this year documenting how a lack of federal controls and weak state regulations have created a 

gaping loophole, allowing an unknown volume of coal ash to be disposed of with very little oversight and 

uncertain impacts to public health. This lack of oversight is placing the health of North Carolinians and 

our environment at risk. While some processes may render coal ash inert and, therefore, suitable for reuse, 

such as use in additive concrete, North Carolina's practice of allowing coal ash to be placed on the ground 
313

as fill material for land development with minimal oversight, has led to numerous problems. These 

problems include groundwater contamination, surface water contamination, sham landfills, environmental 

violations, and a failure to track locations of coal ash fills. The lack of federal regulation is what has led to 

the current failed patchwork of state protections against coal ash. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0005-1

Organization1:Prairie Rivers Network

Commenter1:Traci Barkley

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

1) Illinois officials have known that coal ash handling and disposal practices have been negligent and 

threatening clean water and public health. We have data from nearly 20 years ago showing as much. What 

EPA needs to hear is that it wasn't until the December 2008 impoundment failure in Kingston, Tennessee 

that a state-wide review of these ash impoundments was initiated. The findings have been startling: I. 

Most coal ash impoundments do not have liners or other protective measures to contain waste and prevent 

pollution of groundwater. Ii. Groundwater monitoring was not required at most coal ash impoundments. 

Iii. Groundwater is contaminated at ten power plants, those that have been investigated thus far; and iv. 

Dams creating the impoundments at most sites are unpermitted and have not been inspected for safety or 

stability. 

In Illinois, we are missing what we so desperately need to protect our people and wildlife from coal ash 

contamination: liners, monitoring, effective cleanup plans, dam safety requirements, enforceable 

standards, which brings me to my second point. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0002-1

Organization1:North Carolina Chapter of Sierra Club

Commenter1:Molly Diggins

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

Coal ash is of particular importance to North Carolina, for we have the dubious distinction of having been 

identified by the EPA as having more high-hazard coal ash ponds than any other state in the country. We 

know that we generated last year nearly 4 million tons of dry ash. We have no idea how much wet ash 

was generated because it's not required to report that information. 

Following the catastrophic spill in Tennessee, we looked around. We took a close look at what's 

happening in North Carolina, plus looking at other states to see what we needed to do here. And we're 

frankly astonished to learn that despite what is known about the health impacts of coal ash and the toxins, 
314

that there's no agency, no individual, no institution in North Carolina that can answer the question: how 

much coal ash are we generating, where is it going, and is it safe? 

There is a hodgepodge of programs and regulation but ultimately, North Carolina is awash in coal ash, 

and there is no cop on the beat. Here is what we do know: investigations, when they have taken place, 

have shown that we are having problems with groundwater and surface water contamination in North 

Carolina. And the list of damage reports is continuing to grow here in this state, and nationally. 

We believe this is only the tip of the iceberg. The public is just now really becoming engaged in 

understanding what may be in their backyard, what may be in the lot next door; in fact, what might be 

under their own property. 

I know that this rule as proposed does not address beneficial fill, but I do want to point out in North 

Carolina we have a loophole. Maybe they don't in other states, but we have a loophole here that allows 

largely unregulated dumping of coal ash in unlined landfills. That is a serious problem. 

Subtitle D might have been worth a try a decade ago when EPA first started giving serious consideration 

to addressing the health impacts. That time is long past. The magnitude of the problem is such that Option 

C is the only viable option. Citizens and states need consistent, federally-enforceable requirements if we 

are going to succeed in managing this threat to public health. 

Finally, let me conclude by saying that this is a moment of leadership. We appreciate that the EPA 

inherited this problem from a previous administration, but the public is really looking to you to act. There 

are many here today who are going to talk to you about beneficial fill. I would just state that a failure to 

act to protect public health to avoid a hypothetical public relations problem for certain uses of coal not 

regulated by this rule, would be a complete abdication of the public trust. We urge you to adopt Option C. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0011-1

Organization1:Tampa Electric Company

Commenter1:Randy Melton

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Tampa Electric serves over 700,000 customers throughout the Tampa Bay region of central Florida. 

TECO operates two coal-fired power plants that generate approximately one million tons of CCRs 

annually, of which over 97 percent is beneficially reused in a variety of environmentally-sustainable 

applications. 

At both coal plants, we have worked with the Florida Department of Environmental Protection to 

modernize the facility's existing CCR management units. These improvements have been required by the 

FDEP to ensure the protection of groundwater and surface water resources in the vicinity of these plants. 

Projects have included the capping and closure of inactive former disposal units, the lining of CCR 

impoundments and the redesign of handling systems to eliminate onsite storage of CCR products prior to 

beneficial reuse. 

The impoundments and landfills at our plants have been retrofitted with liner systems that meet the 

permeability and leachate control standards required by the federal Subtitle D regulations. Any future 

facilities will also be required to meet these standards. Our experience is provided as an example to 

illustrate the effectiveness of Florida's solid waste regulatory program in addressing the safety of CCR 

management units that are constructed within our state. Other Florida utilities have similar experience 
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with this program, which is already authorized under federal Subtitle D. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0013-1

Organization1:Southern Environmental Law Center

Commenter1:Chandra Taylor

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Southern Environmental Law Center's support for the Subtitle C option is based on my review of state 

statutes and regulations across the Southeast, which reveal significant statutory and regulatory gaps in 

CCR regulation that result in inadequate protection of the environment and public health from the dangers 

proposed by CCRs.

Gaps in regulation previously identified by the EPA have not been substantially addressed by the states in 

the intervening period and therefore only federal oversight under Subtitle C will result in protective 

regulation. 

In particular, as to inadequate state regulation, in North Carolina in 2007 a comprehensive solid waste 

management act was passed. Most facilities became subject to significantly stronger requirements for 

where solid waste facilities could be placed. CCR landfills were specifically exempted from those 

provisions. In fact, in addition to the particular exemption for new CCR landfills, groundwater monitoring 

at CCR landfills is voluntary rather than mandatory. In particular, in the new law the statute specifically 

states that compliance with performance of the landfill to prevent releases of waste to the environment 

may be determined based on the leakage rate rather than monitoring well data. Adequate oversight to 

determine if CCR constituents have migrated off-site require the use of monitoring wells. Thus, this 

statute is not sufficiently protective. 

Further, when a leak is detected, there is no set time period within which corrective action must be taken. 

In South Carolina, the stringency of regulation of CCR landfills depends on the result of a short-term 

leach test, the toxicity characteristic leaching procedure. This test has been soundly discredited for its 

failure to accurately predict the migration of contaminants from coal ash. 

In Alabama, despite being a very large CCR producing state, CCR landfills and surface impoundments 

are not specifically regulated. 

Overall, in the states of Alabama, North Carolina, South Carolina, Virginia, Tennessee, and Georgia, all 

six states fail to require liners for all CCR surface impoundments and landfills. And Georgia, Alabama, 

and South Carolina, they all fail to require that CCR disposal units be separated from groundwater. In 

Alabama, Georgia, North Carolina and Tennessee, they all fail to require that all CCR disposal units 

obtain solid waste permits. And all six states failed to require all waste unit to have groundwater 

monitoring systems during active life and post-closure.

Response: The Agency acknowledges and appreciates the comment. 
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Comment Number: TRANS-CLT-0084-1

Organization1:North Carolina House

Commenter1:Tracy Harrison

Commenter Type: State Elected Official

Classification: Substantive

Other Sections: 4.2.4

Comment Excerpt Text:

I'm a member of the North Carolina House, serving in my third term representing Greensboro. And I'm 

not going to repeat all that you all have heard about the environmental issues associated and public health 

issues associated with coal ash but I would like to talk about my extraordinary frustration with getting 

regulation done at the state level here in North Carolina, and why we need Federal leadership on this. 

It was pretty troubling for me to find out how ubiquitous coal ash is used in North Carolina, in structural 

fill on construction sites, on the roads to melt snow and ice and it goes virtually unregulated, 

unmonitored, unenforced, unreported. So I have been working for three years to introduce legislation at 

the state level to bring in some new practices and provide better oversight, and I feel stymied in efforts by 

the coal ash producers who would prefer Federal regulation -- at the federal level, but I believe -- Subtitle 

D, is treating it as regular household waste, and I contend to you all that it's much too toxic to be used, to 

be regulated as regular household waste. 

And it's pretty clear that the states, when I was looking for legislation, model legislation, around the 

country to model a North Carolina bill, I couldn't find one. So it's my feeling that there's not adequate 

regulation of coal ash anywhere in any state. So we really need federal regulation and we need federal 

regulation under Subtitle C.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0096-1

Organization1:Earthjustice

Commenter1:Abigail Dillen

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 8.2

Comment Excerpt Text:

Over the past year, my colleagues and I have researched the State regulations, such as they are, that are 

currently on the books to guard against water pollution from coal ash. We have documented extensive 

damage from coal ash around the country. And the picture that we see is a wholesale regulatory failure, 

and that failure is leaving us with a national legacy of contamination. 

Given the history here, the claim that EPA can leave regulations to the state simply is incredible, and we 

will be making that case in detail to you in written comments. 

But since we are in Charlotte, let's talk about North Carolina, which is a perfect example. There are more 

high-hazard dams here than in any other state in the country, but there are no regulations that apply to 

coal ash ponds and surface impoundments. That means no engineering and safety requirements, no 

required groundwater monitoring, no financial assurances, and no post-closure requirements for the many 

aging facilities that will soon have to retire. And you've heard of that from somebody living near the 

Riverbend plant here today what happened to that ash pond. There is simply no regulations in place to 

ensure that it will be closely -- or safely closed and monitored. 

North Carolina should know better. Going back to the 1970s, regulators knew that selenium from coal ash 

was poisoning Belews Lake, eventually killing off 16 of its 20 resident fish species. This is just one of 

several known damage cases in this state, yet there has never been a real attempt to get a handle on the 
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coal ash problem. And let's be clear, North Carolina is not an outlier. 

I'm going to end with a brief story about Pennsylvania, which supposedly has the most progressive coal 

ash regulation in the country. A couple of months ago, I was in the town of La Belle, and the highest 

point in La Belle is the coal ash ridge that surrounds a big ash -- it's a little bit bigger than a pond; it looks 

more like an ash lake. And when it rains, storm water flows down through the ash flooding the back yards 

and the basements of the people who live below it. When the wind blows, they look up and they say they 

see a gray Sahara of ash blowing around. It blows under their windowsills, it blows into their barbeques, 

into their garages, into their cars. 

Of 40 people I met at a town hall meeting, ten were suffering from cancer, and they all lived in the same 

cul-de-sac under the ash dump. These are people who do not have the means to pick up and move. They 

are trapped. And they are asking me, why aren't their rules against this? 

On their behalf, I implore you to make those rules under Subsection C

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0113-1

Organization1:MACTEC Engineering and Consulting

Commenter1:Guy Winebrenner

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

Based on our experience in seven states where coal is used to fuel a significant portion of the electric 

generation output, we have found that the state regulatory programs controlling dam safety, landfill 

design, groundwater protection, at both point and nonpoint source discharge provide an adequate 

framework to provide for public safety, property protection and environmental preservation when 

properly applied.

Moreover, the State regulatory programs are designed to take into consideration the specific geographic, 

geologic and water resources features that can affect the proper operation of CCR storage facilities. 

Consequently, we see no reason -- no compelling reason to move the control of CCR under the hazardous 

waste management requirements of the Subtitle C.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0115-1

Organization1:South Carolina Coastal Conservation League

Commenter1:Nancy Cave

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

South Carolina has 14 coal generating plants producing over 2.1 million tons of ash annually. This ranks 

South Carolina 20th in the country for coal ash generation. The coal ash is placed in 22 ash ponds at nine 
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plants and at least five landfills. And according to your 2007 assessment, six of these ponds and landfills 

are unlined and one is clay-lined. Of these sites six do not have leachate systems. All of the plants are 

sited on rivers and lakes; rivers that are sources of drinking water for communities up and down their 

length. 

In Georgetown County where I live the state- owned utility, Santee Cooper, operates the Winyah power 

station with 6 ash ponds on the Sampit River. In Horry County, Santee Cooper operates the Dolphus M. 

Grainger power station with two ash ponds on the Waccamaw River which supply drinking water to the 

communities of Myrtle Beach and Georgetown, just to name two. 

The Environmental Integrity Project found that the Grainger ponds contaminated groundwater near the 

Waccamaw River with arsenic 91 times the state drinking water standard. Ruling coal ash to be a 

hazardous waste is a precautionary action that will protect the waters of South Carolina and the nation, 

but more importantly a Subtitle C ruling will protect the children and adults from toxins that according to 

EPA's own studies cause serious health threats

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0123-2

Organization1:CROP PLUS

Commenter1:April Watts

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

I would like to speak about New York State DEC -- Department of Environmental Conservation policy 

and practices. In 2007, CROP PLUS filed a Freedom of Information Request to New York DEC and 

received the following information: One, NRG Dunkirk Power did not file any reports from 2002 thru 

2007 for Coal ash use under BUD 122-0-34. The information submitted 10-31-2008 was incomplete and 

contradictory to previous records. Two, the DEC forms request yearly quantity of solid waste beneficially 

used. The form has a note, quote, "please attach to this form all reporting information required by the 

BUD." Nothing was attached to any files received and no periodic testing was reported. Three, the DEC 

form for the beneficial use of coal ash under Regulation 360-1.15 has all cement, concrete and concrete 

products listed under bottom ash and not under fly ash. Both fly ash and bottom ash are recorded as 

bottom ash on several reports. 

In April 2009, Daniel David, Regional Engineer for the Environmental Quality Region responded in a 

letter to Chautauqua County Executive Gregory Edwards, quote, "Sampling and analysis is no longer 

required in order to beneficially use coal ash as a traction agent." Mr. Daniels referred to Regulation 360 

and predetermined BUDs that required no testing. However, Bottom ash reuse as a traction agent is being 

reported under BUD 122-0-34 which does require testing. 

Also, in April 2009 New York DEC Commissioner Alexander Grannis responded to U.S. Congressman 

Brian Higgins saying "The use of coal combustion bottom ash by NRG Energy's Dunkirk Power Facility 

is addressed by a 1993 DEC regulation that supersedes the previously granted BUD 122-0-34. This 

regulation does not require NRG to undertake any chemical analysis." 

Which is it? Is this BUD superseded by or incorporated into the regulation? How can it be superseded by 

Regulation 360 when Part A of the regulation states: "Beneficial use determinations granted by the 

department before the effective date of this section shall remain in effect, subject to all conditions 

contained therein, unless specifically addressed by subsequent department action." No subsequent 

department action has been reported. 

Forms and records need to be updated. Coal combustion ash should not be reused in residential areas 
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without periodic testing to guarantee human and environmental health and safety. 

In closing I emphasize that many state regulations are not requiring proof of protection. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0138-1

Organization1:South Carolina Chapter of Sierra Club

Commenter1:Susan Corbett

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

In South Carolina, as you've heard from previous folks, we have a serious problem. I think there was a 

contingency here this morning from the area around Columbia where I live. She had a little bottle of 

water. I was at a DHEC hearing a few months ago where we challenged their attempt to deregulate or to 

lower these standards on arsenic being released from the SCANA coal ash pond there in lower Richland 

County. I basically heard the DHEC officials say, "The dilution is the solution to pollution." Over 200 

folks turned up at that hearing in Lower Richland County to speak out against the amount of arsenic and 

other toxins being dumped into the watery river from that coal ash. There are no markings in that river; 

people can paddle and fish right up at the area. I think Representative James Smith was familiar. He was 

here this morning, talked about the amount of seepage seeping under that pond into the watery river. 

The sad fact is, the Department of Health and Environmental Control in South Carolina does not have the 

regulatory backbone to stand up to SCANA and other utilities that are managing these ponds, or not 

managing these ponds. There have been numerous citations over the years. They have had years of this 

going on, and virtually nothing has been done to change the pattern of leakage.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0145-1

Organization1:CROP PLUS

Commenter1:James Hofter

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

I'd like to speak about New York State DEC policy and practices. BUD 122-0-34 granted in 1992, allows 

coal bottom ash from two power plants to be used as a traction agent with the following conditions: A 

sample of the ash may be obtained and analyzed twice annually for TCLP metal. If the results indicate a 

metal will have an adverse impact on water quality, the DEC will immediately notify and new samples 

must be analyzed. Accumulated ash cannot be used and must be managed properly. A semi-annual report 

must be submitted to the DEC to keep track of the amount of ash reused throughout the state. This report 

must list the users of the ash and quantities each user receives. 

Moreover, the BUD was updated in 1996 to allow the use of bottom ash as the surface material for 

running tracks. Regulation 360-1.15 was adopted in '93. Part A states: BUD's granted by the Department 
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before the effective date shall remain in effect subject to conditions contained therein. Part A is not being 

enforced. DEC reports this BUD has been incorporated in regulation 360. If not into part A, then surely it 

must be incorporated into part D, which states: The generator or proposed user of solid waste may petition 

the DEC, in writing, to beneficially use the waste. They must provide a demonstration that management 

of solid waste will not adversely affect human health, safety, the environment, and natural resources by 

providing a solid waste control plan. This was described as follows: Procedures for periodic testing of the 

solid waste, a description of storage and maximum anticipated waste inventory not to exceed 90 days 

before using. Procedures for run-on and run-off control of the storage areas. None of these being required 

of BUD 122-0-34. Crop Plus presented proof of pollution.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0004-1

Organization1:Texas Commission on Environmental Quality

Commenter1:Earl Lott

Commenter Type: State Government

Classification: Substantive

Other Sections: 10.5.2.3

Comment Excerpt Text:

Texas has one of the highest number of coal facilities in the United States and consequently the largest 

producer of coal combustion residuals in the nation. We believe that Texas has adequate and effective 

regulations to safely manage coal combustion residuals. Texas has promulgated effective legislation and 

has been at the forefront of recycling initiatives for the use of coal combustion by-products in the 

industry. Coal combustion recycling rates in Texas are as high as 60 to 70 percent. 

EPA has acknowledged that Texas has been a model state on this issue, and that was recognized in the 

early '90s. Recycling rates have dramatically improved in Texas, from around 20 to 25 percent in the 

early '90s to the rate of 60 to 70 percent today. We've done this -- achieved this through progressive 

legislation, by diligent work with -- cooperating with state agencies like the Texas Department of 

Transportation, as well as working with industry groups and utilities on building these markets. Also, 

Texas coal-fired facilities generally produce high-quality coal combustion residuals that are appropriate 

for a number of beneficial use applications in highway construction building products and infrastructure 

building materials. In most areas of the state, Texas has developed a fly-ash-based concrete market 

producing high-quality products.

We believe that the EPA's proposed options to regulate coal combustion residuals under the Subtitle C of 

RCRA threatens the great strides that Texas has made in dramatically improving the coal combustion 

recycling rates in Texas. The TCEQ has effective regulations in place to safely manage coal combustion 

residuals. Even though permits are currently not required, we do require registrations and monitoring of 

the material, which also provides safeguards in preventing the impacts to health and the environment. 

Texas regulations require the characterization, classification, and submittal of that notification of the 

waste prior to disposal.

Response: The Agency acknowledges and appreciates the comment. 
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Comment Number: TRANS-DAL-0040-2

Organization1:Association of Electric Companies of Texas

Commenter1:Walt Baum

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.5.2.3 3.1.2

Comment Excerpt Text:

The Texas Commission on Environmental Quality oversees the design, construction, monitoring, 

reporting, and final closure of all CCR disposal facilities. TCEQ's robust state regulatory program ensures 

the disposal and reuse of CCRs are conducted in a manner that is protective of human health and the 

environment.

In summary, AECT strongly opposes the regulation of CCRs as a hazardous material and believes that 

Texas has a protective program that does not need a new federal program.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0061-1

Organization1:Luminant

Commenter1:Usha Turner

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

The state of Texas, through the Texas Commission on Environmental Quality, already has a 

comprehensive regulatory program for the storage, the disposal of CCRs, that oversees the design, 

construction, monitoring, reporting, and final closure of all CCR disposal facilities.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0071-1

Organization1:

Commenter1:Rogers Dennis

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

We know about by-products from coal combustion such as arsenic, lead, boron, selenium, mercury, 

cadmium, thallium, and many other pollutants at levels that put humans and animals at risk. Coal ash 

dumped in unlined or clay-lined ponds and landfills pose the greatest danger. When coal ash is deposited 

in landfills or impoundment structures, coal ash can be leached into the groundwater. 

In West Texas, it can be blown by the wind throughout the watersheds and end up being washed into our 

surface water reservoirs when it rains. Whereas, underground water is scarce to nonexistent in West 

Texas, safe surface water from limited rainfall becomes extremely important to all life, including humans, 

animals, birds, and fish. 

At least 23 states have poisoned surface water and groundwater supplies caused by improper disposal and 
322

storage of coal ash. Texas is second in the nation in coal ash generation. There are no leachate collection 

systems in Texas, and there is no groundwater monitoring. New Earthjustice/EIP, Environmental Integrity 

Project, show additional coal ash contamination in our state and the entire country. 

According to the EPA damage case assessment, proven damage cases in Texas include Brandy Branch 

coal ash dump in Harrison County, Southwestern Electric Power Company coal ash dump in Titus 

County, and unpermitted discharges in Texas Utilities Electric Martin Lake Reservoir in Rusk County. 

All three have leaked dangerous levels of selenium. 

Coal ash is inexcusably considered exempt waste under an amendment of the Resource Conservation and 

Recovery Act, RCRA. This is not acceptable. Industry is so diverse that it cannot regulate itself and 

consequently needs to be regulated with standards that protect the public as well as itself. 

Regulations have been unsuccessful in Texas and many other states. Regulation needs to be on a national 

level to include protective regulation of all states. The EPA must regulate coal ash to address the risks 

from the disposal and storage of the wastes generated by electric utilities. 

The EPA needs to support the RCRA Subtitle C designation to classify coal as a hazardous waste.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0083-1

Organization1:

Commenter1:Eric Pastor

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I've never previously provided formal comment on an EPA regulation, but after reviewing the proposed 

CCR rules and, more importantly, reading comments that characterize state regulatory agencies as not 

adequately monitoring CCR disposal sites and having refused to do their jobs, I felt compelled to set the 

record straight for Texas, based on my firsthand experience. 

In my opinion, the rules and guidance of the Texas CCR management program as administered by the 

TCEQ are sound, and the TCEQ program staff are dedicated and competent. To support this conclusion, 

let me first start with a brief review of the process that must be followed before a CCR disposal facility 

can be used. 

Under Rule 335.6 of Title 30 of the TAC, a person that intends to store, process, or dispose of industrial 

solid waste such as CCR must provide 90 days' prior notice to the TCEQ. Elements of this notification, 

which we often refer to as a registration package, include information regarding waste composition, waste 

management methods, facility engineering plans and specifications, and the hydrogeologic setting of the 

proposed disposal facility. 

The registration packages that we produce in my firm usually include the groundwater monitoring plan, 

closure plan, and a post-closure inspection and maintenance plan. Once submitted, registration packages 

are reviewed by TCEQ Waste Permits Division. I have found these reviews to be thorough, detailed, and 

comprehensive. 

Comments that we have received on registration packages have ranged from request for justification and 

monitoring well locations and statistical groundwater data valuation procedures to details on wastehandling methods. 

These regulations are supported by a series of technical guidance documents that cover topics ranging 

from site selection to landfill design, construction and groundwater monitoring. These documents, which 

were first developed in the 1970s, are regularly reviewed and updated by TCEQ staff to ensure they are 

current. 
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Potential releases from CCR disposal facilities do not go unchecked but are managed underneath a wellestablished Texas risk reduction program which has a nearly 15-year track record of success in directing 

the investigation and remediation of environmental releases, and is supported by more than two dozen 

guidance documents. 

Last, I would like to note that in my frequent interactions with the engineers and scientists of the TCEQ 

programs, although I have not always been in complete agreement on all technical issues, I have found 

them to be solid professionals who take their mission of protecting health and the environment very 

seriously

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0094-1

Organization1:

Commenter1:Lev Guter

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

So the contamination that's happening right now -- I'm sure you've heard it before today, this report cited -

- but it's In Harm's Way, and it was done by the Environmental Integrity Project. And the first two cases 

are from Arkansas. The -- the first one is the Independence Coal Plant. And the contamination of the 34 

monitoring wells have been documented for widespread groundwater contamination. And we're talking 

heavy metals, mercury. That's 34 wells. That's -- that's drinking wells that people are consuming every 

day. 

And the second problematic coal ash site that was documented in the report is from Flint Creek. And 

that's another coal ash site where there has been demonstrated damage to groundwater 360 feet away from 

the actual site. So this water is -- it's moving, and people are drinking it. 

Just quickly, the Arkansas Department of Environmental Quality follows, in general, the minimum 

standards that the federal regulations impose. There are really smart people, hardworking people at 

ADEQ, but we hear time and again, you know, the regulations aren't there. If you want us to have stricter 

regulations, change the regulations. Well, that's why we're here today. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0097-2

Organization1:NRG Energy

Commenter1:Jeffrey Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

We support the comments made by the Texas Coal Combustion Products Coalition and the Utilities Solid 

Waste Activities Group. 

Texas has a strong solid waste disposal program, and it has successfully managed disposal of CCRs under 
324

this program for decades. The program in Texas provides the regulatory oversight necessary to ensure that 

management of CCRs is protective of human health and environment. NRG requests that EPA work with 

the states and develop a program that recognizes the role of each state to develop their own regulatory 

programs to ensure compliance with the newly adopted federal criteria.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0122-1

Organization1:

Commenter1:Whitney Pearson

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 7.1.2.2

Comment Excerpt Text:

At least two sites in Oklahoma show that currently those who burn coal are being irresponsible. The state 

regulatory agencies have failed to act, and we need strict, clear, enforceable regulations of Subtitle C. 

In Oklahoma, three agencies regulate the fly ash dump in Bokoshe, as you heard earlier. For almost two 

years, citizens who are impacted daily by the fly ash have called these agencies to fix the problems in 

Bokoshe, a problem that these agencies permitted to get out of hand. 

Many of us in Oklahoma have called our elected and appointed officials but only to find out -- to ask 

them why they are not addressing the situation in Bokoshe. They tell us that they don't have the authority 

or they don't see any violations or that it's someone else's responsibility. 

I've been to the fly ash pit in Bokoshe, Oklahoma, and I've seen documentation of the violations; and the 

failure of state agencies is obvious. The failure of state agencies is also apparent in Oologah, Oklahoma, 

where, for 30 years, the coal-fired power plant has disposed of its fly ash in an unlined pit. 

No one monitored the groundwater there until 2008, and the data shows the contaminants have leached 

into the groundwater and there are heavy metals exceeding both federal and state maximum containment 

levels in the groundwater. 

The operator of the plant has acknowledged that it has contaminated groundwater beneath its facility, but 

unfortunately they claim that there is no proof that contamination has spread offsite. 

Isn't it clear that groundwater contamination doesn't confine itself within property lines? Isn't it clear that 

if the operator were acting responsibly, it would determine the extent of the pollution instead of denying 

its existence?

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0126-1

Organization1:Public Citizen's Texas office

Commenter1:Tom Smith

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

But what's clear in Texas is that we have a significant level of contamination. I think it's now up to 16 
325

different lakes or bodies of water, almost all of which are downgradient, as opposed to downwind, from 

coal plants. The source of this is mysterious to all of us. It could be the emissions coming out the top of 

the stack or it could be leachate coming out of the bottom. 

The problem is we don't know. We don't have adequate monitoring reported annually in ways that are

understandable to folks around the plants, nor do we have federal supervision to make sure the data we're 

getting are accurate and adequate. We think there is a real advantage to Subtitle C in that it does require 

federal enforceability.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0028-4

Organization1:Great River Energy

Commenter1:John Weeda

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

GRE has participated in research and contributed proactively to regulations administered by the State of 

North Dakota Health Department, provide proper design for disposal facilities in North Dakota. These 

include lining and effective management and monitoring of the landfills, and this applies to our stations in 

North Dakota. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0049-2

Organization1:Arizona Public Service Company

Commenter1:Scott Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

In Arizona, coal ash disposal units are regulated under the Department of Environmental Quality Aquifer 

Protection Program and the Department of Water Resources Dam Safety Program. Working in tandem, 

these programs impose stringent requirements to ensure the environment and public safety are protected.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0060-1

Organization1:Wyoming Department of Environmental Quality (DEQ)

Commenter1:Bob Doctor

Commenter Type: State Government

Classification: Substantive
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Other Sections: 10.5.2.4

Comment Excerpt Text:

I manage Wyoming's solid waste permitting and corrective action program and Wyoming DEQ. I'm here 

with a written statement, so I'll try and be quick here. 

We regulate -- and I'm sorry. We use the W word in Wyoming still -- coal combustion waste, which is 

regulated as a Subtitle D waste under rules that mirror EPA's Subtitle D requirements for municipal solid 

waste. We regulate it under three separate programs in the DEQ in Wyoming. Surface impoundments are 

regulated both by our water quality division as wastewater ponds and under our state engineer's office 

under dam regulations for the construction of dams and dikes in the state engineer's office. 

These two programs both require permitting for all these impoundments. They have various degrees of 

monitoring, engineer certification, inspections a minimum once every five years of these impoundments. 

I can speak more to solid waste since that's the program I manage. We permit these things almost like we 

do municipal solid waste landfills with virtually the same type of requirements for public participation, 

liners, other engineered containment systems such as caps, leachate management. 

We also require characterization of the waste. We encourage especially that. We require that for any 

beneficial use. We try to encourage beneficial use through our solid waste rules and regulations. 

We also have requirements for monitoring corrective action. Again, another public requirement for 

participation if facilities must go into public corrective action mode. 

We also require closure and long-term post-closure care for these facilities that amounts to about the same 

30 years of post-closure care that you would give to a municipal landfill. 

We believe that states are in a better position to regulate coal combustion waste than the EPA is. Most of 

these decisions, many are site-specific conditions that require site-specific knowledge of soils, 

groundwater, waste type, that stuff. We've heard that not all CCW is the same. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0099-2

Organization1:Colorado Department of Public Health and Environment

Commenter1:Joe Schieffelin

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

As background, the solid and hazardous waste program regulates all disposal and beneficial reuse of coal 

combustion residuals in Colorado. We have representative analytical data on the coal combustion 

residuals produced in Colorado, and no data has ever indicated levels of contamination close to those that 

would make the residuals hazardous waste.

We have groundwater monitoring data around coal combustion residuals dewatering and disposal areas, 

and no data indicates a release to groundwater has occurred.

However, if a release were to occur, we have enforcement authority to rapidly and effectively deal with 

noncompliant situations, including releases to soil, groundwater, surface water, and exposures to people. 

This includes administrative order authority with injunctive relief, corrective action authority, and 

penalties up to $10,000 per day per violation. Colorado actively uses these authorities in implementation 

of the solid waste program.

Through this same regulatory construct, we safely and effectively regulate municipal solid waste every 

day, a waste stream with higher hazards than coal combustion residuals because it includes household 
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hazardous waste, heavy metals, and organics, acidic, and alkaline materials.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0003-1

Organization1:Southern Alliance for Clean Energy

Commenter1:Josh Galperin

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Now, as Dr. Smith said, we've compiled this report on the state of coal ash regulation in Tennessee. It's 

important to understand how states regulate coal ash in order to understand the differences between what 

will happen -- whether Subtitle C or Subtitle D is ultimately promulgated. 

This report shows a surprising lack of oversight in Tennessee, a state that should be very proactive on 

coal ash regulation because of the Kingston disaster. So I want to just point out a few specifics that I've 

found in researching Tennessee's laws in some depth. 

First, the laws only specifically address coal ash in two instances. The first instance happens to also be the 

only -- the one and only change that has been made to Tennessee's coal ash regulations since the Kingston 

disaster. And as it happens, this particular change has nothing to do with the disaster itself. 

The change that I'm talking about, the first time that coal ash is mentioned in Kingston's law -- excuse me, 

in Tennessee's laws is a provision in the solid waste laws which requires a liner and final cap on coal ash 

landfills. Sounds great. It's a very important provision, except unlike much of the rest of the solid waste 

laws, the exemptions contained therein swallow the entire rule. The liner and cap is not required for 

structural fill; it's not required for agricultural uses or engineered uses; and most importantly, the "new 

safeguard" -- I'm putting quotes around that for the record -- the "new safeguard" doesn't apply to surface 

impoundments, which are the type of ash storage that is clearly the most dangerous. 

The second specific mention of coal ash in Tennessee's law is with regards to permits by rule. Certain 

uses of coal ash are allowed without a true permit in Tennessee, without being subject to public scrutiny, 

and without the more stringent provisions of the normal permit by application process. So this is two 

instances only where Tennessee's laws actually address coal ash specifically, and both provide for broad 

exemptions over permissive uses of coal ash without substantial safeguards. 

Moreover, Tennessee does not regulate ash at all when it's stored in surface impoundments. So, to be 

clear, surface impoundments like the one in Kingston, the ash that's stored in those impoundments and 

those impoundments themselves are completely unregulated. The Safe Dam Act does not regulate these 

impoundments, the solid waste laws exempt impoundments, and NPDES permits only regulate the 

discharges of wastewater from those impoundments. 

So there is no requirement for structural stability, groundwater monitoring, unit citing, leachate collection, 

closure, post-closure care, financial assurances on impoundments like the one at Kingston. 

So, rather than going into further details, Dr. Smith submitted a copy of this report. If you have any 

further questions on it, please feel free to contact me at the Southern Alliance for Clean Energy. 

Response: The Agency acknowledges and appreciates the comment. 
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Comment Number: TRANS-KNX-0016-1

Organization1:Black Belt Citizens Fighting for Health and Justice

Commenter1:Barbara Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Local county government, the ones that begged for the coal ash to get the money, is run like a gang. If 

you cross them, none of your family and friends will ever get a job in Perry County. If you cross them, 

you'll get ostracized. If you cross them, you can bet the police departments will be on your back. People 

are afraid, and I can tell you it's with good reason. People are threatened with arrest if they speak out even 

at public meetings. And right now it's being litigated because the Perry County Commission has violated 

the Alabama Open Meetings Act.

The state -- the Alabama Department of Environmental Management is weak and underfunded. It's a 

permit machine. It's political. They never should have issued a permit for that landfill in the first place. 

Already the landfill owners have filed for bankruptcy. Already there's been illegal dumping of the 

leachate. We can't count on them.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0059-2

Organization1:Tennessee Riverkeeper

Commenter1:David Whiteside

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Currently, in the states of Tennessee and Alabama, we have conflicting standards. In Kingston, Tennessee 

where the TVA's coal ash disaster was, coal ash waste is being treated as hazardous and extremely 

dangerous where -- to the point where the trucks that leave the facility have to go to great lengths to make 

sure that this material is washed off of them. 

Once it's trucked down to Uniontown in Perry County, Alabama, it has a different set of standards. It is 

not treated as a dangerous material down there. It is treated much more haphazardly. And one of the 

things we're asking the EPA to do in -- in regulating this as hazardous waste will be to come up with 

uniform federal standards that the states could abide by to give a consistency between Tennessee and 

Alabama. 

Right now it's just not fair that one state can consider it a toxic substance and the other state is not as 

concerned about it. I -- that's extremely conflicting and we need guidance from the government to provide 

some sort of consistency among the states. 

Response: The Agency acknowledges and appreciates the comment. 
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Comment Number: TRANS-KNX-0065-2

Organization1:Southern Alliance for Clean Energy (spoke as employee and citizen)

Commenter1:Katherine Stokes

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.1 9.3.11

Comment Excerpt Text:

What we're talking about today are the wet impoundment ponds or the huge dry landfills of coal ash, the 

type that flooded the land, houses and river of our neighbors in Roane County, Tennessee. This type of 

coal ash that is stored in impoundment ponds or landfills should be regulated by EPA's proposed Subtitle 

C. This ash hasn't been treated and is not your regular household waste as Subtitle D would suggest that it 

is. 

As we witnessed with the TVA coal ash spill, coal ash is not effectively regulated by the state of 

Tennessee. As we've learned from this disaster, the siding and structural stability of these coal ash storage 

impoundments are not regulated. Neither is the potential for these chemicals to penetrate groundwater. 

As we've witnessed, we know the regulations are made as suggestions or guidelines rather than enforced, 

as they would be in Subtitle D, that they are also not followed. EPA estimates Subtitle C could cause a 

0.8% increase in our electricity bills. We need to spend a little bit of money now to regulate coal ash as 

insurance so that we won't see another very expensive, life-destroying and very preventable accident like 

we saw almost two years ago here in Tennessee. 

Our electricity providers aren't afraid of taking risks because the cost is sent down to the customers. We 

are the ones that carry the burden. We're the ones who paid for the clean-up of the Kingston coal ash spill, 

and we need federal backing so that this doesn't happen to us again. 

EPA Sub -- suggested Subtitle C is the best choice for Tennessee's safety, health and wallets. It will save 

us money and distress in the long-run by helping us avoid another disaster.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0112-2

Organization1:University of Tennessee

Commenter1:Gregory Button

Commenter Type: Academia

Classification: Substantive

Other Sections: 3.1.1 4.2.4

Comment Excerpt Text:

Unless the EPA adopts the above-mentioned option, our nation's citizens and our environment will 

continue to remain vulnerable to the toxicity of coal ash. The TVA ash spill has dramatically and 

tragically demonstrated the failures of relying on a patchwork of state regulation. 

It is imperative that the EPA have direct oversight over the generation of storage, transportation, and the 

disposal of coal ash in order to safeguard the public and the environment. Subtitle D would continue to 

rely on a state-by-state patchwork of regulations, which time and time again has proven to be inadequate. 

Response: The Agency acknowledges and appreciates the comment. 
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Comment Number: TRANS-KNX-0114-2

Organization1:Solar Valley Coalition

Commenter1:Brian Paddock

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

I spent earlier this year for three solid months, along with others, trying to get modern coal ash 

containment legislation passed in Tennessee. We had complete agreement by the time we'd finished 

negotiations with the state department. 

What happened was that the afternoon before the first committee hearing, the Chamber of Commerce 

lobbyist made two phone calls, and the bill never even got a motion the next day. With that kind of 

opposition form powerful interests, the inability of the state agency and the legislature to protect us is 

evident

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0016-3

Organization1:National Ready Mixed Concrete Association

Commenter1:Terry Jones

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

We, along with our state and national associations, believe that many states will establish their own new 

laws that further limit the beneficial use of fly ash. Here's an example: Maryland's already proposed a new 

law requiring any product containing fly ash to be disposed of in a facility authorized to accept fly ash.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0036-1

Organization1:

Commenter1:Rick Clewett

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I will use the findings of just-conducted study by the Sierra Club, Kentucky Waterways Alliance and 

Global Environmental to make this point. The study entitled, "Slow Motion Spills: Coal Combustion 

Waste and Water in Kentucky," found that the -- while 44 coal ash -- there are 44 coal ash ponds in 

Kentucky, anything like adequate information was available for only eight. In these eight cases, 

monitoring records did not record all CCW contaminants. In some cases, the division had even allowed 

sites whose early records showed dangerous levels of toxici -- toxic heavy metals to stop monitoring 

those pollutants." 

Despite this disturbing failure of the state to collect and archive adequate information on water quality 
331

near coal ash facilities, the study was able to reach three resounding conclusions: (1) Existing data point --

data point to groundwater contamination caused by coal ash waste beneath every plant studied; (2) 

Kentucky regulatory program is not properly addressing this threat, instead, it's getting weaker; and (3) 

Kentucky is not comprehensively tracking where CCW contamination is going. 

I'm not -- I'm sure that in many states it is bad or worse. I -- this is -- I'm not out to -- to get Kentucky. 

That's not the point. I live here; my family lives here; many of my friends live here. We care what's 

happening to the people near the Cane Run facility, what's happening to the people near the Spurlock 

facility in eastern Kentucky. 

I'll just reference another study, "In Harm's Way: Lack of Federal Coal Ash Regulations Endangers 

Americans and Their Environment." The title says it all.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0045-4

Organization1:Duke Energy

Commenter1:Debbie Nispel

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Another significant flaw is that the allegations have been made without prior consultation with the very 

states whose programs the groups allege are deficient. The states are contesting this allegation and 

charging that activat -- activist groups have improperly characterized the effectiveness of their state 

controls

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0088-1

Organization1:League of Women Voters

Commenter1:Joan Lindop

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.2.4

Comment Excerpt Text:

Much of Kentucky is dotted with limestone caves, which means that ground water travels miles very 

quickly. It's very hard to know where that ground water will end up once it -- contaminated water is there. 

We know it will go into the Ohio River. The League of Women Voters urges EPA to take charge. 

Already, several organizations in Kentucky have requested that the US EPA take back primacy from the 

Kentucky Division of Water. The failure of the Kentucky Division of Water to enforce water quality 

standards in our waterways has resulted in many miles of polluted streams, streams that are not fishable or 

swimmable, as Kentucky Department of Water was required to report in the latest Kentucky Division of 

Water Integrated Report. 

Response: The Agency acknowledges and appreciates the comment. 
332

Comment Number: TRANS-LVL-0126-1

Organization1:Cumberland Chapter of Sierra Club

Commenter1:Hank Graddy

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

My specific focus is on what EPA identifies as the central issue, the adequacy of the state programs. And 

based upon my experience, the Kentucky program is woefully inadequate and requires an EPA floor to sit 

so that Kentucky will finally try to do what is right. I have cited the slow motion spills as authority for the 

need for this regulation. 

They conclude Kentucky's regulatory program is not properly addressing this threat. Instead, it's getting 

weaker even as evidence of contamination mounted in state files. Kentucky reduced monitoring 

requirements, failed to commence enforcement actions, and continued to permit new ponds and landfills 

without proper controls. That report, slow motion spills, documents the magnitude of the problem, as far 

as we know it, the inadequacy of the state, and the fact that the problem is growing. 

My particular focus is on the Trimble facility where we submitted comments about the adequacy of a 

particular permit. We asked for the permit should regulate failures. The state answered, we don't regulate 

failures. We said the permit should regulate groundwater. They say, we don't regulate groundwater. We 

said the permit should regulate coal combustion waste futures. They say, we don't do that under the 

KPDS. It's time to learn the lesson.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0141-1

Organization1:Citizens Coal Council

Commenter1:Brian Wright

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

I've spent over a thousand hours reviewing permits, ground and surface monitoring records, scientific 

studies, and state regulations for coal combustion waste disposal sites. My research has revealed a 

repeated pattern of failure by states to address the risks posed to human health and the environment by 

these wastes. 

My own home state of Indiana, state regulators and site operators ignored numerous warning signs of 

contaminations at the R520 landfill and the Gibson power plant. As a result, the communities of Mount 

Carmel and the town of Pines lost their drinking water supply due to contamination from these wastes. 

Despite these two serious failures in state regulations on CCW, the state has refused to make any changes 

to their state rules on these wastes. In fact, impoundments in Indiana remain exempt from solid waste 

regulations. And it's not just Indiana that has a bad track record when it comes to these wastes. 

In 1999, I did a state-by-state survey of state regulations on coal ash, and what I found is almost across 

the board for impoundments failure to implement even the most basic environmental safeguards, such as 

groundwater and surface water monitoring for coal ash disposal sites. Ten years later in 2009, I did the 

same survey and I found no significant improvement in regulations for these wastes, despite the mounting 

record of damage. 

People trust their state agencies to protect the environment and their health. The state agency repeatedly 
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violated that trust when it comes to CCW. Now they want to be entrusted with implementing Subtitle D 

regulations when their track record shows that doing so would be a great disservice to the people living 

around these facilities

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0145-2

Organization1:

Commenter1:Barbara McKasson

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 6.1.1

Comment Excerpt Text:

What is happening in my state of Illinois is a prime example of why we need the U.S. EPA to implement 

regulations for coal combustion waste. The state of Illinois has more contaminated sites from the 

inappropriate disposal of coal ash than any other state. A case in point is the situation at the Southern 

Illinois Power Cooperative, SIPC, at the Lake of Egypt south of Marion, Illinois near where I live. The 

holding ponds at SIPC are unlined and leaking into the groundwater. The plumes of toxic water have now 

spread off of SIPC's property and onto people's private land. 

According to a report on damaged cases of contamination from improperly disposed coal ash, monitoring 

wells by the SIPC power plant have registered maximum concentrations of cadmium that are 35 times 

higher than the federal acute water quality standards and up to 352 times higher than the federal chronic 

water quality standards. Also, recent data on pond discharges to Saline Creek show high concentrations of 

aluminum, boron and manganese. This was documented in the report "In Harms Way: Lack of Federal 

Coal Ash Regulations Endangers Americans and their Environment." 

Actually, only cadmium, boron, iron, and sulfate are being routinely monitored -- monitored at the SIPC 

site. Other toxics that are found in coal, such as arsenic, mercury, selenium and chromium are not even 

being monitored at the SIPC site. 

In addition, people I know who live in the subdivisions surrounding Lake of Egypt tell me that there are 

at least 20 trucks a day carrying coal ash from the power plant property to off-site areas. One off-site area 

is an abandoned strip mine north of Williamson County Airport where the toxic coal ash is being dumped. 

There is no monitoring well, there are no liner and no state regulations to keep the toxic substances in this 

ash from seeping into the groundwater and nearby wells. Another concern is the decades-old coal ash 

ponds by SIPC are right by Lake of Egypt, which provides drinking water for about 10,000 people who 

live around Lake of Egypt. Local citizens in another area by Joppa, Illinois testified that coal ash waste is 

being dumped in piles from another plant and blows into the air when it dries. Citizens living close to the 

dump site complained at the hearing at -- for permit for chronic and acute respiratory problems that they 

attribute to the coal ash blowing on their property. 

In December 2009, I attended a hearing concerning NPDES water discharge permit for the Met-South 

Coal Combustion Waste disposal facility owned by Electric Energy, Inc. in Joppa, Illinois. At this 

hearing, officials with Illinois EPA explained that coal ash waste dump sites may require a solid waste 

permit from the Bureau of Land or they may be permit-exempt. In fact, the IEPA official explained that 

the only requirement for a coal ash waste landfill in Illinois is that the operator must provide Illinois EPA 

with documentation that a public official has been notified of the forthcoming dump. There is no 

opportunity for public input or debate. So, even though there is threat of toxic chemicals leaching into the 

groundwater from a dump, there is no special environmental consideration given to coal waste landfills. 

In fact, in Illinois, coal ash landfill requirements are less stringent that (sic) municipal waste landfills. 

Local citizens at the Met-South hearing testified that coal ash waste is being dumped in piles, and blows 
334

into the air when it dries. Citizens living close to the dump site complained at the hearing of chronic and 

acute respiratory problems that they attribute to the coal ash blowing onto their property. 

I have also been contacted by Wesley Logan, who grew up in Joppa, Illinois, and still has many relatives 

there. Wesley's father, Bobby Logan, sued LaFarge Cement Company and Electric Energy, Inc. for 

putting coal ash on Liberty Ridge Road by his house in Joppa, Illinois. Every time a vehicle drove by on 

those roads, the ash would fly up in the air, and spread to nearby yards and houses. Bobby Logan, his 

wife and other people on those roads got cancer, serious respiratory problems and other health problems. 

These threats to public health from using coal combustion waste in ways that release toxic chemicals into 

our air and water with virtually no regulations to contain or filter the toxins is totally unacceptable. 

According to the investigative report titled "In Harms Way," done by the Environmental Integrity Project, 

many state governments have few or no safeguards to protect the public from the spread of these toxins. 

Illinois and other states that have lax regulations or no regulations on coal combustion waste are even 

taking waste from other states with stricter standards. Thus, putting the people in Illinois at greater risk 

from these toxins.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0152-1

Organization1:

Commenter1:Steve Wilkins

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Kentucky has already demonstrated that it cannot be entrusted to oversee the handling of coal ash. Your 

own agency has been critical of the Kentucky Department for Environmental Protection and its division 

of water. Kentucky has been very protective of any potential threat to the coal industry and that protection 

follows coal throughout its life cycle. Coal, the industry, is coddled while miners, mountains, waterways, 

communities, whole regions are sacrificed in pursuit of profits. 

Without federal oversight, I fear that Kentucky will do for coal ash what it has done with 402 mining 

permits, favoring the coal life cycle over the environment it is supposed to protect. Do not allow 

Kentucky primacy in the oversight of coal ash. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0154-1

Organization1:E.ON U.S.

Commenter1:Mike Winkler

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

In Kentucky we've had regulations governing CCR landfills and beneficial reuse since 1992 and 
335

impoundment safety regulations for an even longer period. LG&E and KU have CCR management 

protocols in place that ensure regulatory compliance and protection of public health and the environment. 

The Kentucky regulatory program works very well. There's never been a significant spill from any LG&E 

or KU CCR facility or any other CCR facility in Kentucky. No LG&E or KU CCR facility has ever posed 

a problem for local water supplies. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0179-1

Organization1:

Commenter1:Fred Fischer

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

I've spent 44 years in the construction industry, built all the sewers and streets in the central business 

district here, supervised the foundation of a 41-story building, the First National Bank building, and have 

supervised over 1,000 home -- homes and apartments. So, when I read several months ago about the 

details of the acreage, the depth and the liner in the coal ash pond, I was amazed and appalled. I know that 

we can't, for instance, design flood walls for 500 years, but liners are -- they're -- it's going to leak. It's 

only a matter of time before it gets punctured by something or it wears out. 

So, that said, our west end -- and again, I -- I agree because the west end is where the poor people are, it's 

where industry has set up shop. Lot of us believe anecdotally that there's a lot more cancer in our west end 

than there is in the rest of the community, and we can't afford more. 

Another citizen said something to the effect that Kentucky was bought and paid for by coal. I don't know 

about the whole state. I certainly know some politicians who aren't. I think the people who oversee the 

coal industry pretty well are. Because of that, I ask you to please institute Subtitle C. Let the feds do the 

job right, because Kentucky hasn't and won't

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0003-1

Organization1:Mountain Watershed Association

Commenter1:Beverly Braverman

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Given the health impacts, treating CCW as a benign substance is not low cost. PA DEP recently issued 

the local summit mine fill permit, which is now being appealed in eastern PA's Schuylkill County. They 

issued it without a baseline monitoring. They issued it without monitoring wells and peoples' drinking 

water wells. Those drinking water supplies are downgradient. 

If this waste was designated a C waste, this irresponsible handling would end. 

Response: The Agency acknowledges and appreciates the comment. 
336

Comment Number: TRANS-PIT-0074-2

Organization1:Clean Water Action

Commenter1:Tom Hoffman

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.2.4 4.2.1

Comment Excerpt Text:

It is our understanding that the EPA has two proposed regulatory options for coal ash - Plan C and Plan 

D. Clean Water Action is supporting the Strong Option, Plan C, that would provide basic environmental 

and public health safeguards backed up with federal enforcement and financial accountability. We need 

protection from coal ash cradle to grave and the Subtitle C option gives us that. We do not support the 

status quo option that relies on citizen suits or possible state regulations for enforcement. 

Pennsylvania is a resource rich state, but our residents have and will continue to pay a high price for that. 

Streams that are no longer life sustaining. Air that sends kids to the hospital with asthma at four times the 

national rate. Flammable drinking water in peoples' homes. Leaving things to the state is not an option 

here in Pennsylvania. We are facing severe budgetary shortfalls and our DEP has been slashed to the 

bone. Our communities are facing serious environmental threats from the booming natural gas drilling 

industry. Our Department of Environmental Protection does not have the necessary resources to protect us 

from those dangers let alone do what is necessary to regulate coal ash. Clean Water Action supports 

strong federal regulations on coal ash. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0098-2

Organization1:Center for Coalfield Justice

Commenter1:Raina Rippel

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Within our state, the Pennsylvania DEP regulations represent a lack of state regulatory oversight and 

enforcement, because PA's DEP advocates coal ash is beneficial. Given the known or suspected health 

consequences of major coal ash repositories, such as Little Blue, and probability that minefilling may 

leach into groundwater, such a beneficial use designation, is downright dangerous, and serves only to 

pander to industry's need for reuse or improper disposal of this toxic substance.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0102-1

Organization1:Pennsylvania Department of Environmental Protection

Commenter1:Mike Forbeck

Commenter Type: State Government

Classification: Substantive
337

Comment Excerpt Text:

Pennsylvania has residual waste regulations in place that govern the transportation, storage and 

disposal of CCR. Their regulations are similar to the Commonwealth's RCRA Subtitle D authorized 

municipal waste regulations and have been in effect since 1992. CCR landfills that have been designed 

and operated in accordance with these regulations have not resulted in pollution to groundwater, 

surface water or air, and these are the same residual waste regulations that were used as a template for 

EPA's existing Guide for Industrial Waste Management. Pennsylvania's successful management of CCRs 

including tracking of historical waste analysis data generated over the last 30 years, does not indicate in 

any way the need for hazardous waste designation EPA is proposing. 

According to EPA, the design and performance standards for the proposed regulations will likely be the 

same no matter what regulatory scheme is chosen. The major differences are that EPA asserts such a 

designation is necessary for it to retain and exercise appropriate enforcement authority and EPA cannot 

require states to permit landfills under Subtitle D proposal. Pennsylvania regulations already require 

performance standards that exceed those outlined in the Subtitle C or D proposal. By current 

regulations, Pennsylvania also requires facilities to be permitted or authorized to manage CCRs. 

As to the need for the EPA enforcement, Pennsylvania's Solid Waste Management Act authorizes the 

utilization of state enforcement authority is warranted. The use of this approach has been successful for 

Pennsylvania, as evidence by the 96 percent compliance rate. In addition, EPA already has broad 7003 

enforcement authority and, therefore, does not need the additional authority under Subtitle C. 

The detrimental effects of Subtitle C management are substantial and could effect beneficial use, cost 

and the capacity concerns for the disposal of this material. Pennsylvania continues to improve its 

regulations and, in fact, new regulations regarding the Pennsylvania use of CCRs are expected to be 

finalized later this year that incorporates recommendations from the National Academy of Sciences, 

which provides further evidence of the efficacy of Pennsylvania's current program. 

Response: The Agency acknowledges and appreciates the comment. 

Section 7.1.1 - CCR landfills

Total Number of Submissions: 90

Total Number of Comments: 170

Comment Number: TRANS-ARL-0080-2

Organization1:

Commenter1:Matt Durning

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 9.2.3

Comment Excerpt Text:

While the Arrowhead Landfill is deemed "state-of-the-art" by local politicians and landfill officials, in our 

reporting there we have witnessed conditions on the ground, which give us great cause for concern and 

we think should give you cause for concern as well. For at least the last 6 months a mountain of coal ash 

has been rising behind the tree line that has sat uncovered only a few hundred feet from residents' homes. 

This is clearly increasingly the likelihood that fugitive ash and dust will be blown off-site and could end 

up in the lungs and water sources of local residents. 

Although the landfill is equipped with a liner system which they also call state-of-the- art, we know for a 

fact that contaminated water has flowed from the landfill property into roadside ditches and creeks which 
338

feeds into local water sources. In this community many of these folks are on personal wells and we know 

that the homes near the landfill get their drinking water from water that is directly tied to the creeks and 

roadside ditches that are basically being fed from this contaminated water from the landfill. Most of the 

people living in this community in Perry County, Alabama, are poor and African-American and like the 

majority of Perry County, disenfranchised. They fought hard to stop the original landfill construction and 

the coal ash contract but every step of the way the system just failed them. A few local politicians have 

strong- armed the coal ash contract and squelched opposition. They have silenced the very people they

were elected to represent. 

The people of Perry County are an example of the most vulnerable victims of weak federal coal ash 

legislation. Unfortunately, there are so many other communities like them across the U.S. suffering from 

the same thing, improper disposal of this toxic waste. Time and again states like Alabama have put 

communities at risk. Without any support from their elected officials and scant resources to effectively 

fight this dumping, they desperately need real and lasting support from the federal government and the 

only way to ensure this and ensure that they are protected is by regulating coal ash under Subtitle C.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0094-1

Organization1:Wisconsin Department of Natural Resources

Commenter1:Ann Coakley

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

For disposal, Wisconsin fully acknowledges that failure to properly manage CCR materials can result in 

significant negative effects on the environment and human health, so they must be managed responsibly. 

We believe that proper management practices for CCR materials that cannot be beneficially reused is 

under an effective Subtitle D waste management program. In Wisconsin, we currently effectively regulate 

disposal under the State's RCRA Subtitle D equivalent program. We oversee landfill siting, liner 

requirements, monitoring, capping and financial responsibility. All active CCR landfills in Wisconsin are 

engineer-lined facilities that are routinely monitored. 

We believe that Wisconsin and other states have demonstrated that effective regulation of CCR disposal 

sites already occurs under state authority and rules.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0039-1

Organization1:BlackRock Engineers

Commenter1:Gary Ahlberg

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

Here in North Carolina, the state of North Carolina actively and fully regulates coal ash landfills, and 
339

requires liner systems and leachate collection systems for their construction. We've been involved in 

projects here in North Carolina that have adequately utilized existing capacity on what I would consider 

brown fields, improved their groundwater quality, added engineering controls to those facilities that have 

benefitted the environment, provided for safe disposal, and have provided a minimum impact on green 

field sites. 

I think if you take away the existing brown fields and preclude them from future use, eliminate their 

capacity, you're requiring a needless use of soil resources and green field resources for these facilities. I 

think that, you know, coal ash, if designed properly, can also provide more or less an improvement to 

those site conditions while it utilizes the existing capacity of those facilities.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0086-1

Organization1:Entergy Corporation

Commenter1:Mark Bowles

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

The three coal plants that Entergy operates are permitted by the Arkansas and Louisiana Departments of 

Environmental Quality. Both state programs require that landfills be constructed with compacted clay or 

geosynthetic liners, meet stringent design criteria, conform to standardized operational requirements, 

conduct groundwater monitoring, and comply with closure and post-closure criteria as well as provide 

financial assurance. Arkansas and Louisiana are two states that have demonstrated that states can manage 

CCR disposal and should be the administrators of any Subtitle D option.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0117-1

Organization1:Bullock, Bennett & Associates

Commenter1:Craig Bennett

Commenter Type: Other Company

Classification: Substantive

Other Sections: 7.1.1.2

Comment Excerpt Text:

Despite the misinformation commonly promulgated by many supporters of CCR regulation, the current 

program in Texas does provide for such common-sense safeguards as landfill liners, groundwater 

monitoring, and cleanup standards. 

CCR disposal facilities in Texas are strictly constructed in accordance with TCEQ Industrial and 

Hazardous Waste Technical Guidance Number 3. Every design and construction of a CCR landfill in 

Texas that I've been involved with over the course of my career has met or exceeded the technical 

requirements for liners listed in Technical Guidance Number 3. 

Groundwater monitoring is already adequately addressed by TCEQ Guidance Document Number 6, as 

well as many EPA RCRA guidance documents. I personally manage groundwater monitoring programs at 

six CCR landfills in Texas. Again, groundwater at these facilities is routinely monitored and evaluated, 
340

and to suggest otherwise is wrong. 

Non-hazardous CCR landfills are remediated and closed in Texas under the TCEQ's Texas Risk 

Reduction Program or the Risk Reduction Standards. These programs explicitly require a complete 

evaluation of soil and groundwater data to ensure the facilities are closed so as to remain protective of 

human health and the environment. In addition, after closure, ongoing groundwater monitoring, site 

inspection, and maintenance is required to be documented and submitted for TCEQ review. 

In 18 years of environmental consulting on CCR projects in Texas, I have never seen any waste 

classification data to remotely suggest that CCRs should be managed as a hazardous waste. To regulate 

CCRs as hazardous is wasteful and potentially detrimental to ongoing recycling efforts. 

If CCRs are not characteristically hazardous, and the primary impetus for these new proposed rules is the 

December 2008 Tennessee Valley Authority dike failure, then shouldn't the proposed rules be primarily 

focused on inspection and maintenance of CCR facility dikes? By the way, we also do that, too. Every 

CCR landfill we're associated with is inspected twice per year by a licensed professional engineer and 

maintained accordingly. 

Again, thank you for the opportunity to speak here today. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0170-1

Organization1:

Commenter1:Bob Padgett

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

In 2000, we started putting landfill liners for the first time under fly ash landfills. I couldn't swear for 

doing it anymore because they took me out of my job in 2004 and buried me somewhere in the back. 

Frankly, I don't really care if you're doing it as C or D. For you folks that don't understand it, if they 

brought it up to Subtitle D it would help out the state because we don't even do Subtitle D level. We didn't 

have the political will to even call it "solid waste." We call it "special waste." It's got its own special -- it's 

special. 

So we've already shown the lack of political will. I'm going to show you a couple of quick facts of things 

I would support. Beneficial reuse I hear a lot about, using it in cement, gypsum wallboard, things like 

that, wonderful. Using it as land disposal without liners or structural fill, horrendous. 

The state of Kentucky allows beneficial reuse in the damnedest ways. You would not believe the places 

we let -- guys will come in from the farm, a guy -- "I've got a farm here and I need to go over there. I'm 

going to build me a landfill of ash in between the two." Sure. 

Don't allow disposal in ponds. It's already probably illegal under the Water Act, and let's just call it what 

it is. You know the chemistry is bad, you know the power of the coal complex is big in this state. You've 

heard that states can't regulate very well. Well, I'm here to tell you that things are different. I know that 

the state of Kentucky cannot regulate very well. Couldn't regular its way out of a paper bag about fly ash. 

When they started the Solid Waste Board in 1990 and got primacy, and here's the thing I would really like 

to clue you-all in for future use, they had over 44 people on staff with the solid waste program in 

Kentucky, tens of PEs and PGs to regulate all the landfill construction. Now they have when I left, and 

you I don't even know if they have these guys anymore, two engineers, three jobs for all landfills, solid 

waste and special waste in Kentucky. 

It's ridiculous. We have dwindled away to absolutely nothing. In my opinion, EPA, we don't even have a 

level of program that can do primacy as required by the federal regs. 
341

Hang in there, folks. Good that everyone's out here with us. Please be assured that the -- with help from 

the feds that staff can get it together. There are a lot of good people at the EPA. They're just not allowed 

to think very much. We are a circus parade of the elephants. Our instructions are, follow the one in front 

of you, don't step out of line. And so for those reasons --

MR. BEHAN: Thank you, sir. 

MR. PADGETT: -- this state can't be trusted. Bring on the feds

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0082-1

Organization1:Civil & Environmental Consultants, Inc.

Commenter1:Angelo Masullo

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

Many of the Pennsylvania facilities that I've been involved with recently would be considered the 

equivalent of retro Subtitle D landfills. 

I've also briefly worked for a company -- one of the few companies in the country -- that operate a 

RCRASubtitle C landfill. 

In the state of Pennsylvania, coal ash is considered to be a residual waste, and its disposal is currently 

governed by regulations that control the location, size, and design, construction, operation and closure of 

the landfills. 

Landfill citing regulations do take where landfills can go and how closely they can be to residents. 

Facilities are protective in the environment and are fully capable of preventing groundwater 

contamination below and around the disposal facility. 

My professional opinion is that the level of environmental protection provided by Subtitle D facilities, 

such as Pennsylvania's Class 1 residual waste landfills, is almost the same as that provided by Subtitle C 

landfills. 

Subjecting coal ash management disposal at the requirement associated with Subtitle C will break the 

increase for difficulty in managing coal ash without providing significantly greater degree of 

environmental protection. 

Response: The Agency acknowledges and appreciates the comment. 

Section 7.1.1.2 - GW monitoring requirements/standards: EPA seeks comment whether GW 

monitoring is required by states for CCR LFs (35133)

Total Number of Submissions: 57

Total Number of Comments: 94

Comment Number: TRANS-DAL-0117-1

Organization1:Bullock, Bennett & Associates

Commenter1:Craig Bennett

Commenter Type: Other Company

Classification: Substantive

Other Sections: 7.1.1

Comment Excerpt Text:
342

Despite the misinformation commonly promulgated by many supporters of CCR regulation, the current 

program in Texas does provide for such common-sense safeguards as landfill liners, groundwater 

monitoring, and cleanup standards. 

CCR disposal facilities in Texas are strictly constructed in accordance with TCEQ Industrial and 

Hazardous Waste Technical Guidance Number 3. Every design and construction of a CCR landfill in 

Texas that I've been involved with over the course of my career has met or exceeded the technical 

requirements for liners listed in Technical Guidance Number 3. 

Groundwater monitoring is already adequately addressed by TCEQ Guidance Document Number 6, as 

well as many EPA RCRA guidance documents. I personally manage groundwater monitoring programs at 

six CCR landfills in Texas. Again, groundwater at these facilities is routinely monitored and evaluated, 

and to suggest otherwise is wrong. 

Non-hazardous CCR landfills are remediated and closed in Texas under the TCEQ's Texas Risk 

Reduction Program or the Risk Reduction Standards. These programs explicitly require a complete 

evaluation of soil and groundwater data to ensure the facilities are closed so as to remain protective of 

human health and the environment. In addition, after closure, ongoing groundwater monitoring, site 

inspection, and maintenance is required to be documented and submitted for TCEQ review. 

In 18 years of environmental consulting on CCR projects in Texas, I have never seen any waste 

classification data to remotely suggest that CCRs should be managed as a hazardous waste. To regulate 

CCRs as hazardous is wasteful and potentially detrimental to ongoing recycling efforts. 

If CCRs are not characteristically hazardous, and the primary impetus for these new proposed rules is the 

December 2008 Tennessee Valley Authority dike failure, then shouldn't the proposed rules be primarily 

focused on inspection and maintenance of CCR facility dikes? By the way, we also do that, too. Every 

CCR landfill we're associated with is inspected twice per year by a licensed professional engineer and 

maintained accordingly. 

Again, thank you for the opportunity to speak here today. 

Response: The Agency acknowledges and appreciates the comment. 

Section 7.1.2 - CCR surface impoundments

Total Number of Submissions: 60

Total Number of Comments: 101

Comment Number: TRANS-DEN-0026-3

Organization1:Arizona Electric Power Cooperative

Commenter1:Patrick Ledger

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

AEPCO's facility is regulated by the Arizona Department of Water Resources, Dam Safety and Flood 

Mitigation Division as well as by the Arizona Department of Environmental Quality. Both agencies 

maintain rigorous compliance programs and conduct frequent inspections to ensure that applicable 

maintenance and safety standards, including groundwater monitoring, are followed. 

The EPA also recently affirmed the structural integrity and proper operation of the impoundments through 

an independent assessment. 

While we agree that the issue of unsafe CCR surface impoundment facilities must be addressed, lined 

properly engineered facilities that are rigorously regulated under state programs should not be placed in 

jeopardy by regulation that overreaches beyond its intended purpose.
343

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0002-1

Organization1:

Commenter1:Lisa Graves-Marcucci

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

The EPA risk assessment details extremely high cancer risks to communities living near unlined coal ash 

impoundments -- particularly those on groundwater, like Greene Township, Pennsylvania, home to the 

Little Blue Run ash impoundment. 

There is nothing little about Little Blue. It is one of nation's largest coal ash impoundments. It stretches 

from Pennsylvania into Chester, West Virginia, and faces East Liverpool, Ohio. 

Pennsylvania DEP files reveal contamination problems existed at Little Blue for over a decade; however, 

the DEP has not issued any fines, corrective actions, or remediation directives. Even with contamination 

problems, the Pennsylvania DEP authorized an expansion in 2005 under a Demonstration or experimental 

status, offering even less protection to the communities. 

Currently, First Energy is seeking more land for ash disposal. Residents have been asked to sign company 

waivers, removing the state required buffer, protection setbacks to private wells and residences. 

The DEP and First Energy officials deny arsenic problems at Little Blue; however, documents show 

elevated arsenic in ten monitoring wells, and shockingly, the public was never told until we obtained 

company documents from the state files. 

Twenty-two private wells have been contaminated with a variety of pollutant found arsenic. The DEP is 

doing nothing to contain the toxic plume, protect drinking water or the humans consuming it. 

We believe that cancer rates among folks living hear Little Blue are reflected by cancer rates modeled in 

the US EPA's risk assessment. 

Little Blue represents a real-world example of why federal rules are needed. The DEP has become an 

advocate for industry's toxic waste. They are not holding First Energy or any other company accountable 

for problems at ash impoundments. 

Industry and the PA DEP contend there is no evidence of ground or surface water contamination from 

coal ash. PA DEP public files prove otherwise. Industry and PA DEP are deliberately ignoring the facts, 

and misleading you and the public; coal ash has contaminated water sources. Something needs to be done 

to protect the people who are literally in harm's way.

Response: The Agency acknowledges and appreciates the comment. 

Section 7.1.2.1 - Liner requirements/standards

Total Number of Submissions: 36

Total Number of Comments: 52

Comment Number: TRANS-DEN-0061-1

Organization1:Rocker Six Cattle Company

Commenter1:Clint McRae

Commenter Type: Other Company

Classification: Substantive
344

Comment Excerpt Text:

I live in the shadows of four coal-fired power plants in the town of Colstrip. We early on questioned the 

ash disposal method of those settling ponds, and we were assured by the State of Montana that these 

ponds would be -- and I quote -- completely sealed. 

We were lied to. They're leaking like a sieve. Any leaking in these ponds we were told by the board of 

health at that time -- and this individual's name was Dr. Will Clark. He said that the leaking ash ponds 

would activate the closing of the power plants. That's not going to happen. 

In the Armells Creek watershed in the town of Colstrip there are two ponds. Both of them over the years 

have leaked, contaminating domestic wells in homes and businesses in the town of Colstrip. 

60-some homeowners filed a lawsuit against PP&L Montana. They just settled a short time ago for $25 

million in damages. In the Rosebud watershed which I live, another ash pond is leaking. This one is 400-

and-some acres. It's 80 feet deep. It's been leaking since it was built, for 30 years. 

The monitoring wells below it have become pump-back wells, and the plume has moved nearly a onemile radius around it. Again, the law stated that this should be -- and I quote -- completely sealed, end 

quote

Response: The Agency acknowledges and appreciates the comment. 

Section 7.1.2.2 - GW monitoring requirements/standards: EPA seeks comment on whether GW 

monitoring is required by states for CCR SIs (35133)

Total Number of Submissions: 46

Total Number of Comments: 75

Comment Number: TRANS-CLT-0104-1

Organization1:South Carolina Chapter of Sierra Club and League of Women Voters of South Carolina

Commenter1:Peggy Brown

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

The South Carolina chapter of Sierra and the League of Women Voters strongly recommend the EPA's 

consideration to regulate coal ash ponds under Subtitle C, Resource Conservation and Recovery Act, as it 

is the most protective choice on the table.

South Carolina has 12 polluting outdated coal burning power plants that require at least one or more coal 

ash ponds. Leaching unregulated coal ash ponds will percolate into the ground, and without proper 

barriers eventually reach groundwater and contaminate the water with toxic waste.

Right now we have three known ash ponds that are leaching coal waste in the groundwater. At this time, 

South Carolina DHEC has no groundwater monitoring system in place. Due to budget restrictions, they 

have re-evaluated the number of surface water monitoring sites and the frequency of testing. With recent 

evidence of groundwater contamination at the Wateree Eastover site, DHEC has a pending groundwater 

monitoring requirement to begin at some point. But in reality, if they're having trouble, or if they're 

having to cut back monitoring surface waters, where will the funding come from to begin a new 

groundwater monitoring program?

South Carolina has many rural areas that rely on well water for drinking. State records indicate the 

potential for more protect -- for more private wells to be contaminated may occur. Groundwater 

discharges from coal combustion waste dumps may load drinking water sources with contaminants that 

could increase nearby residents' cancer to as high as a staggering 1 in 50, so you report. Potential well 

water contamination of rural South Carolinians put the already economically challenged even at higher 
345

health risks.

If the EPA will regulate coal ash under Subtitle C, RCRA, the Rule for coal ash as hazardous waste under 

Federal law, this will require the industry to phase out porous sludge ponds, replace them with sturdy, 

leak-proof facilities. The Subtitle C will take the burden off the State agency that is already physically 

struggling and place the responsibility of cleanup and up fitting on the utilities.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0122-1

Organization1:

Commenter1:Whitney Pearson

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 7.1

Comment Excerpt Text:

At least two sites in Oklahoma show that currently those who burn coal are being irresponsible. The state 

regulatory agencies have failed to act, and we need strict, clear, enforceable regulations of Subtitle C. 

In Oklahoma, three agencies regulate the fly ash dump in Bokoshe, as you heard earlier. For almost two 

years, citizens who are impacted daily by the fly ash have called these agencies to fix the problems in 

Bokoshe, a problem that these agencies permitted to get out of hand. 

Many of us in Oklahoma have called our elected and appointed officials but only to find out -- to ask 

them why they are not addressing the situation in Bokoshe. They tell us that they don't have the authority 

or they don't see any violations or that it's someone else's responsibility. 

I've been to the fly ash pit in Bokoshe, Oklahoma, and I've seen documentation of the violations; and the 

failure of state agencies is obvious. The failure of state agencies is also apparent in Oologah, Oklahoma, 

where, for 30 years, the coal-fired power plant has disposed of its fly ash in an unlined pit. 

No one monitored the groundwater there until 2008, and the data shows the contaminants have leached 

into the groundwater and there are heavy metals exceeding both federal and state maximum containment 

levels in the groundwater. 

The operator of the plant has acknowledged that it has contaminated groundwater beneath its facility, but 

unfortunately they claim that there is no proof that contamination has spread offsite. 

Isn't it clear that groundwater contamination doesn't confine itself within property lines? Isn't it clear that 

if the operator were acting responsibly, it would determine the extent of the pollution instead of denying 

its existence?

Response: The Agency acknowledges and appreciates the comment. 

Section 7.3.1 - EPA solicits comment on states’ concerns that any federal regulation under RCRA 

Subtitle C has potential to cause disruption to states’ implementation of CCR regulatory programs 

under their own authorities, including more specifics on potential procedural difficulties for state 

programs, and any measures that EPA might adopt to try to mitigate these effects (35158, 35224)

Total Number of Submissions: 96

Total Number of Comments: 189

Comment Number: TRANS-DEN-0053-1

Organization1:Association of State and Territorial Solid Waste Management Officials

Commenter1:Gary Baughman
346

Commenter Type: State Government

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

The states overwhelmingly support the Subtitle D option over the Subtitle C option. The wastes do not 

meet the normal criteria to be listed as a hazardous waste.

To regulate these wastes as a hazardous waste will dilute our ability to focus our efforts on programs that 

are already strained for the proper management of hazardous waste

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0032-2

Organization1:Kentucky Department of Environmental Protection

Commenter1:Bruce Scott

Commenter Type: State Government

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

The Environmental Council of States, or ECOS, in March 2010, reaffirmed a 2008 Resolution on the 

regulation of coal combustion products that recognized the previous findings of the EPA and supports the 

beneficial reuse of CCR, and regulation -- and that regulation under Subtitle C would negatively impact 

the beneficial reuse of CCR. The resolution affirms that the additional level of oversight is unwarranted 

and dip -- duplicates the existing state regulatory programs, and urged EPA to conclude that CCR should 

be regulated under Subtitle D, and called upon the EPA to collaborate with states to develop a national 

framework for beneficial reuse of CCR. Yet, this EPA administration has repeatedly ignored the 

recommendations made by their state counterparts in protecting human health and the environment. 

Simply put, it is not necessary or appropriate to use Subtitle C to enhance or improve the regulation of 

CCR. Regulation via an appropriate Subtitle D approach would achieve the same objectives without the 

unnecessary regulatory complication, higher cost, and with no loss in environmental protection. 

In Kentucky alone, the amount of hazardous waste that would have to be managed under Subtitle C would 

increase from approximately 100,000 tons per year to approximately 10 million tons per year, a 100-fold 

increase. We would remind EPA that Kentucky currently has no authorized hazardous waste land disposal 

facilities. This proposal would create several such facilities

Response: The Agency acknowledges and appreciates the comment. 

Section 7.4.1 - EPA solicits comment on states’ concerns that any federal regulation under RCRA 

Subtitle D has potential to cause disruption to states’ implementation of CCR regulatory programs 

under their own authorities, including more specifics on potential procedural difficulties for state 

programs, and any measures that EPA might adopt to try to mitigate these effects (35158, 35224)

Total Number of Submissions: 46

Total Number of Comments: 87

Comment Number: TRANS-ARL-0029-2

Organization1:Utility Solid Waste Activities Group

Commenter1:Pam Faggert

Commenter Type: Trade Association

Classification: Substantive
347

Comment Excerpt Text:

A major shortcoming, however, of the Subtitle D and D prime approach is the lack of any mechanism for 

the states to step in and administer the regulations. Where state regulatory programs meet or exceed the 

EPA proposed Subtitle D standards, it makes no sense to not allow these qualified state programs to 

administer the federal Subtitle D rules

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0044-2

Organization1:Duke Energy Indiana

Commenter1:Bryan Walsh

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

A major short-coming, however, of either proposed Subtitle D approach is the lack of a mechanism for 

the states to step in and administer the regulation. Clearly, there are regulatory programs that already meet 

or exceed the proposed Subtitle D standards. States with qualified programs should be given the option of 

administering the federal Stub -- Subtitle D rules if they so desire

Response: The Agency acknowledges and appreciates the comment. 

Section 8.1 - General concerns/issues related to CCR damage cases

Total Number of Submissions: 62

Total Number of Comments: 85

Comment Number: TRANS-KNX-0128-2

Organization1:Central Alabama Electric Cooperative

Commenter1:Terry Mitchell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

You know, from the information that I have obtained, the TVA Kingston ash spill was a dam safety issue, 

a pond failure. I ask you to fix the problem, allow the proper governmental agency to -- to govern the 

safety of the pond. It was the -- it was the container, ladies and gentlemen, not the product that caused the 

problem

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0032-3

Organization1:Kentucky Department of Environmental Protection

Commenter1:Bruce Scott

Commenter Type: State Government

Classification: Substantive
348

Comment Excerpt Text:

The event that initiated this additional EPA scrutiny of how coal combustion residuals should be managed 

was the TVA Kingston ash fill failure which resulted in extensive physical damage. Ironically, if CCR is 

regulated under Subtitle C, due to the requirement to obtain a hazardous waste permit for a new horizontal 

CCR fill expansion, the substantial cost to transport and manage CCR offsite, and unreasonable time 

frames to make these changes, the result will be EPA-created larger fill structures via vertical expansion 

by utilities that would actually increase the risk --

MR. DUFFICY: Sir, your time is up. 

MR. SCOTT: -- of additional physical failures

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0117-2

Organization1:

Commenter1:Ron Roberson

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Furthermore, as the director of safety, I must add that I found in recent statements published by the United 

States Department of Health and Human Services regarding the public health assessment related to the 

TVA Kingston ash spill very comforting. And their 274-page final report, written by the Tennessee 

Valley -- or excuse me, the Tennessee Department of Health, they conclude, in Conclusion Number 3, 

that, (reads) No harm to the community's -- the community's health is expected from touching of coal ash 

including children who might touch the ash while playing. 

In Conclusion Number 4, they state, (reads) No harm to people's health expected from accidental eating 

of small amounts of ash. Who would want to? 

And in Conclusion Number 6, it says, (reads) Using municipal drinking water from the Kingston 

Rockwood water treatment plants will not harm people's health because of the raw finished water 

remaining. 

These samples were taken between December the 23rd of 2008 and January the 5th of 2009 with over one 

full year of data. When I see this type of data based on almost two years of sampling and analysis 

regarding the Kingston health assessment, I find it odd and without logic that we would consider taking a 

chance of destroying the best recycling industry in the United States by labeling coal ash as a hazardous 

substance

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0128-2

Organization1:

Commenter1:Brandon Emmick

Commenter Type: Private Citizen

Classification: Substantive
349

Comment Excerpt Text:

Working in the safety side of the business, I take particular interest in the statements recently published 

by the U.S. Department of Health and Human Services regarding the Public Health Assessment related to 

the TVA - Kingston ash spill. In their final report, the Tennessee Department of Health makes the 

following statements, and I will quote their language in the conclusions. They "conclude that no harm to 

the community's health is expected from touching the coal ash, including children who might touch the 

ash while playing. 

Using well water or spring water within four miles of the coal ash release will not harm people's health 

from exposure to coal ash or metals in the coal ash, because no evidence has been found for groundwater 

contamination by coal ash. These same conclusions of no harm to people's health continue in a scientific 

study performed by the EPA, U.S. Department of Health and Tennessee Department of Health. 

When I see these type statements based on almost two years of sampling and analysis regarding the 

Kingston Health Assessment, I find it strange and without logic that we would consider taking a chance 

on destroying the best recycling industry in the U.S. by labeling coal ash as hazardous. I understand the 

need for national standards and landfill design, but it escapes my logic as to why we should label coal ash 

hazardous when the protective features of the landfills will be similar under both C and D regulations, a 

point that most of those against coal ash have failed to mention

Response: The Agency acknowledges and appreciates the comment. 

Section 8.2 - Support view that damage cases are substantial

Total Number of Submissions: 35

Total Number of Comments: 43

Comment Number: TRANS-ARL-0060-1

Organization1:

Commenter1:Mary Fox

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

I would like to make four points. Coal ash contains multiple toxic constituents that can appear as mixtures 

in the ambient environment. Enforceable standards are needed for disposal in sand and gravel pits, 

quarries and landfills. We need to know the locations of disposal pits, past and present. Risk assessments 

to date have likely underestimated health risks. The latest reviews show that arsenic cancer risks are 

higher than previously thought and noncancer risks are under estimated if mixture exposures are not 

evaluated. 

Regarding multiple contaminants, the proposed rule summarizes the Gambrills damages case in Anne 

Arundel County, Maryland where coal combustion waste was used to reclaim a former sand pit. Coal 

combustion waste constituents reached the drinking water wells of nearby residents. In total, 34 wells 

were contaminated with concentrations of aluminum, arsenic, beryllium, cadmium, lead, manganese, and 

thallium above drinking water standards. I would like to emphasize that several of those wells were 

contaminated with multiple coal ash constituents demonstrating the importance of assessing combinations 

of coal ash contaminants and vulnerabilities of unlined disposal areas. Three of the commonly used coal 

combustion waste management practices, landfill, surface impoundment or use and reclamation in mines 

result in localized disposal. We will be unable to fully assess or correct environmental or public health 

risks unless disposal locations are known. 

To date, cancerous assessments of arsenic exposure have been based on studies of skin cancer. 
350

Epidemiological evidence on arsenic ingestion shows greater risks of several internal organ cancers such 

as bladder, kidney, lung, liver and prostate so that estimates using the skin cancer data will underestimate 

total cancer risks from arsenic ingestion, and arsenic exposure is also associated with some noncancer 

outcomes including diabetes and hypertension. In conclusion, I believe my concerns would be best 

addressed and public health better protected to regulation under RCRA Subtitle C

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0110-1

Organization1:EarthJustice

Commenter1:Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

The decision facing EPA is of monumental importance, but it is not unprecedented. There are clear, legal 

mandates for this rulemaking that the agency cannot ignore. The proposed regulation of coal ash as a 

special waste under Subtitle C, is dictated by the specific mandates of the Bevill Amendment, the 

regulatory definition of hazardous waste, and EPA's guidance concerning reduction of cancer risk. A 

special waste designation is the only option consistent with Administrator Jackson's pledge to rely on 

"sound science and risk-based criteria protective of human health and the environment." 

Many who oppose Subtitle C regulations want you to look back to the days when the TVA dam still 

stood, when we knew nothing of 70 additional damage cases, and when the TCLP test was not deemed 

irrelevant. They would have you ignore your new leach test that reveal arsenic leaching from ash at many 

times the threshold for hazardous waste. They would have you disregard state data documenting 

contaminated water at dozens of sites across the nation. They would prefer you forget the conclusions of 

the National Academy of Sciences, the EPA Science Advisory Board, and your own peer-reviewed risk 

assessment. Lastly, they would have you disregard the gross deficiencies of an existing state law, which 

allow some of the largest coal states to avoid entirely the regulation of coal ash. 

In short, you are asked to base this critical rule on facts frozen in the last century. This course is as illegal 

as it is foolhardy. We trust that you will not join them in their way-back machine. This law requires your 

decision be based on 21st century data and science. Further, the current reality of coal ash 

mismanagement by states across the nation requires a rural design to resolve this problem

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0120-1

Organization1:EarthJustice

Commenter1:Emily Enderle

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

As you've noticed, this is of high importance to a number of the large environmental and public health 
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groups in the United States. I for example am here on behalf of the 220,000 plus members and supporters 

of Earthjustice to let you know that this is certainly one of our high-priority rules. 

You are right now in the midst of looking at public comments, looking at technical data and considering 

two particular options on how to deal with the disposal of coal ash. For us we would really appreciate and 

the public would really appreciate the scientifically defensible option which is Subtitle C under the 

Resource Conservation and Recovery Act. 

It's only under that particular subtitle that we would be able to ensure that communities are going to be 

protected from toxic coal ash. We've seen time and time again that the states, when left to operate under 

the status quo, that there are damage cases throughout the country. You have identified dozens of 

damages cases yourselves. We have certainly worked on several reports in the past identifying more 

damage reports looking into using data that's available at the state and local level. I think that's one 

example and a lot of those are related to leaching. 

Then we have cases like the Kingston spill. That's an example of catastrophic failure. I am from a small 

town in rural Ohio. We are certainly a coal state. We are actually sixth, I think, in the country in terms of 

coal use and we generate 6.9 million tons per year. In Ohio we have six of the high-hazard dams, which 

means if they were to fail one or more people would likely die because of that failure. You know that 

there are a lot of structural integrity issues and you've collected the data. Personally I'm scared for my 

family, for citizens of Ohio as well as citizens across the country and there are hundreds of other ponds 

that haven't even been quantified in terms of structural integrity. So the catastrophic failure, as well as 

leachability are of high concern. 

Your own data shows 2,000 times the acceptable risk of arsenic is a possibility in terms of the leach test. 

You have the science. I mainly wanted to let you know that you have the public's support and you have 

the scientific support. We hope that the rule that you decide to promulgate is ultimately that one that you 

put forth to OMB and that the politically more attractive yet the less-protective rule is the one that's left 

behind

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0146-1

Organization1:League of Conservation Voters

Commenter1:Sara Chieffo

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

I'm here to encourage the EPA to adopt strong federally enforceable coal ash regulations. U.S. coal- fired 

power plants generate more than 130 million tons of toxic coal ash annually. Coal ash and other 

combustion wastes are not currently subject to federal regulation and most state laws are either far too 

weak or nonexistent. The dangers coal ash poses to public health and the environment have been known 

for a long time. This coal combustion byproduct is known to contain harmful metals and chemicals like 

arsenic, lead, and mercury that lead to increased rates of cancer, birth defects, learning disabilities, and 

other illnesses. 

Currently much of the coal ash waste is stored in ponds, landfills, and abandoned mines that do not have 

adequate safeguards. Whether through large-scale and highly visible disasters like the massive coal ash 

spill in Tennessee in 2008, or the less-visible contamination of groundwater, communities, public health, 

and the environment are unnecessarily being threatened. In fact, a report released just last week by the 

Environmental Integrity Project, Earthjustice, and the Sierra Club, brings the total number of known 

contamination sites from toxic coal ash pollution to 137 sites spread across 34 states. 
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LCV strongly encourages the administration to adopt the Subtitle C option that has been proposed. 

Families across the country and drinking water sources will only be protected by federally enforceable 

standards and not by guidance to states which will only perpetuate the patchwork of inadequate state 

regulations that we currently have. No community should be exposed to these health risks especially 

when safer disposal methods exist and could be readily implemented

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0118-2

Organization1:

Commenter1:Ralph Zellner

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

And another thing, I believe the stigma about the TVA or whatever, the Tennessee Valley Association 

down there where they had the big leak, I think it's just the stigma being used by the industry or fly ash 

industry to make it look like, you know, that we're putting something up. But all I think is this was the last 

straw that broke the camel's back

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0125-3

Organization1:Environmental Integrity Project

Commenter1:Sam Flenner

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Since then, there have been a number of EPA recognized damage cases which has increased from 6 to 67. 

Even if the recently released non-profit reports are not factored in, that's a tenfold increase in damage 

cases which merits more investigation. And this type of investigation as voluntary under Subtitle D is 

absolutely not going to happen. Anything that gets landfilled needs to go to Subtitle C

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0001-2

Organization1:

Commenter1:Steve Scarborough

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Roane County, Tennessee is my home. It is a beautiful part of America that I hope you all get to visit. It is 

also the site of the Kingston TVA coal ash disaster, the largest in American history, where millions of 
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cubic yards of improperly handled and stored coal ash waste destroyed a way of life during the night on 

December 22, 2008. Had it not happened just after midnight on the longest and coldest night of the year, 

we would have had a body count to go with this disaster of geological proportions. 

I count myself lucky compared to those whose homes were there. I have two lake lots on the Emory River 

that were on the market then that I now cannot sell except for pennies on the dollar. Having real estate 

that you cannot sell is far better than having a life that cannot be made whole. 

This disaster was caused by incompetency and willful negligence at multiple levels but mainly in the 

financial decisions of a corporate bureaucracy focusing on shortsighted cost savings and a complicit state 

agency that allowed it to operate a massive coal storage facility without adequate oversight. For a savings 

of less than 20 million dollars TVA now faces a billion dollar bill for cleaning it up, and an additional 

burden that can never be paid for and people who were harmed and cannot be made whole. 

There are no cost savings in inadequately protecting innocent people's lives. There is no justice in shifting 

the cost burdens from businesses which profit from coal power to innocent members of surrounding 

communities. Option C is the only moral choice. It is also the only financially sound choice. To do less 

would simply cost too much

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0003-1

Organization1:

Commenter1:Dennis Lemly

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

My comments pertain to the aquatic hazard of selenium, which is a trace element that leaches out from 

coal combustion residues, or CCR, bioaccumulates in the aquatic food chains and causes deformed 

young, reproductive failure, and other toxic effects. 

I have studied the environmental toxicology of selenium pollutant from CCR for over 30 years, beginning 

with Belews Lake, North Carolina and continuing today with the TVA ash spill in Tennessee, which has 

polluted an entire river ecosystem. Only 159 of the 2000-plus CCR disposal sites across the country have 

undergone technical evaluation to determine risks and impacts. Yet 137 of these, or 86 percent, are 

proven or suspected environmental damage cases, as determined by EPA and other investigators. What 

the damage cases show is that currently-used disposal techniques pose a substantial ecological hazard. 

From surface wet basins to quote, "dry landfills," unquote, all can produce selenium-laden leachate that 

can poison fish and wildlife. 

Little progress has been made in updating disposal practices to better protect fish and wildlife from toxins 

in CCR. For example, the 1970's Belews Lake case resulted from open surface disposal of coal ash. So 

did the TVA catastrophe in 2008, more than 30 years later. Lessons about CCR disposal from Belews 

lake were not heeded and the issue has expanded from a regional problem into a national one. In addition, 

we have learned that landfills and other so-called dry disposal methods offer little more protection for 

aquatic life than open surface storage. Even disposal sites with composite liners produce leachate that 

must be treated. 

There is no disposal method for CCR that is selenium-free.

Response: The Agency acknowledges and appreciates the comment. 
354

Comment Number: TRANS-CLT-0096-1

Organization1:Earthjustice

Commenter1:Abigail Dillen

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 7.1

Comment Excerpt Text:

Over the past year, my colleagues and I have researched the State regulations, such as they are, that are 

currently on the books to guard against water pollution from coal ash. We have documented extensive 

damage from coal ash around the country. And the picture that we see is a wholesale regulatory failure, 

and that failure is leaving us with a national legacy of contamination. 

Given the history here, the claim that EPA can leave regulations to the state simply is incredible, and we 

will be making that case in detail to you in written comments. 

But since we are in Charlotte, let's talk about North Carolina, which is a perfect example. There are more 

high-hazard dams here than in any other state in the country, but there are no regulations that apply to 

coal ash ponds and surface impoundments. That means no engineering and safety requirements, no 

required groundwater monitoring, no financial assurances, and no post-closure requirements for the many 

aging facilities that will soon have to retire. And you've heard of that from somebody living near the 

Riverbend plant here today what happened to that ash pond. There is simply no regulations in place to 

ensure that it will be closely -- or safely closed and monitored. 

North Carolina should know better. Going back to the 1970s, regulators knew that selenium from coal ash 

was poisoning Belews Lake, eventually killing off 16 of its 20 resident fish species. This is just one of 

several known damage cases in this state, yet there has never been a real attempt to get a handle on the 

coal ash problem. And let's be clear, North Carolina is not an outlier. 

I'm going to end with a brief story about Pennsylvania, which supposedly has the most progressive coal 

ash regulation in the country. A couple of months ago, I was in the town of La Belle, and the highest 

point in La Belle is the coal ash ridge that surrounds a big ash -- it's a little bit bigger than a pond; it looks 

more like an ash lake. And when it rains, storm water flows down through the ash flooding the back yards 

and the basements of the people who live below it. When the wind blows, they look up and they say they 

see a gray Sahara of ash blowing around. It blows under their windowsills, it blows into their barbeques, 

into their garages, into their cars. 

Of 40 people I met at a town hall meeting, ten were suffering from cancer, and they all lived in the same 

cul-de-sac under the ash dump. These are people who do not have the means to pick up and move. They 

are trapped. And they are asking me, why aren't their rules against this? 

On their behalf, I implore you to make those rules under Subsection C

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0112-1

Organization1:Appalachian Voices

Commenter1:Willa Mays

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:
355

In December of 2008, our staff was among the first to take water samples from the Emory River in the 

wake of the Kingston coal ash pond failure in Harriman, Tennessee. We assembled a team of researchers 

from Appalachian State University and the Tennessee Aquarium Conservation Institute and over the past 

two years have expanded our initial testing to include water sediment and fish in the Emory, Clinch, and 

Tennessee Rivers. We issued reports in January and May 2009 that detailed our findings. Arsenic, 

barium, cadmium, lead, and the selenium in the Emory River exceeded protective drinking water and/or 

aquatic life criteria levels. Ash and ash-laden river sediments had arsenic levels that exceeded EPA 

removal limits. Selenium levels increased dramatically downstream of the spill with levels in fish beyond 

the thresholds of toxicity for reproduction and growth. And in North Carolina, our staff reviewed 

groundwater data from 13 coal ash ponds operated by Duke and Progress Energy. We issued a report in 

October '09 that showed 681 exceedances of groundwater standards for arsenic, boron, cadmium, 

chloride, iron, lead, magnesium, pH, and total dissolved solids. The level of exceedances ranged from 1.1 

to 380 times higher than the North Carolina groundwater standard

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0069-1

Organization1:

Commenter1:Mary Kaiser

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

Thank you for allowing me to speak in support of Subtitle C. I am speaking not just for myself but for the 

many disadvantaged people living near coal ash dumping sites that pollute the drinking water with 

arsenic, lead, mercury, and other heavy metals found to increase cancer 900 times above that which is 

defined as acceptable, and these remain toxic for years. 

About 129 million tons of coal ash is generated by the U.S. each year, making it the nation's second 

largest waste stream. The toxic byproduct of coal combustion is disposed at approximately 600 coal ash 

landfills and industrial waste ponds nationwide. 

At least 23 states have poisoned surface or groundwater supplies as a result of improper disposal of coal 

ash. The industry would like people to believe that it is just dirt. It is not. It is a hazardous waste posing 

serious health risks to humans, wildlife, and the environment. The industry has hundreds of unregulated 

coal ash storage ponds located next to rivers throughout the United States. 

Environmental engineers at Duke and Georgia Tech and medical researchers from Duke's Comprehensive 

Cancer Center conducted a detailed assessment of the spill at the Tennessee Valley Authority's plant in 

Harriman, Tennessee. Their analysis of the ash samples revealed that the spilled sludge contained high 

levels of toxic materials and radioactivity, including 75 parts per million of arsenic, 150 parts per billion 

of mercury, and 8 picocuries per gram of total radium. A picocurie is a standard measure of radioactivity. 

Fine particulates, which are roughly the same size as bacteria, are so small that they can easily be inhaled 

into the deepest reaches of the lungs. People with preexisting pulmonary disease or infections would be 

more susceptible. Past studies have shown that fine particulates can also pose risks for people with 

diabetes or a susceptibility to vascular disease. 

According to the data collected in 1995, more than 60 percent of the country's coal ash disposal units are 

unlined or clay lined. The EPA also found that these composite liners -- the use of a composite liner 

system significantly reduces the exposure to coal ash causing- and health-threatening pollution to within 

acceptable levels. If the federal -- but the federal government and most states do not require such 

protective measures. 

I, therefore, encourage you to support Subtitle C with monitoring by both the individual states and the 
356

EPA who will set and enforce a national standard. We cannot continue to put those living storage 

locations at high risks of health problems. We need enforceable standards. 

Thank you for allowing me to speak in support of Subtitle C

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0001-1

Organization1:

Commenter1:Steve Scarborough

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

As I read the proposed regulations, one thought kept coming back to me. Why is anyone opposed to this? 

Particularly after the disaster that we in Roane County are suffering through and are trying to recover 

from. It's a result of improperly handled and stored coal ash. 

Why would anyone not want -- an industry not want a level playing field for all of the businesses that 

make money from coal and coal ash? Why would these corporations and their lobbyists not willingly 

accept oversight that would guarantee to the public that they are operating safely and that the health and 

welfare of the people living near coal sites is being watched out for? 

This army of hired corporate spokesmen has come before you and whined that adequately protecting the 

public will cost too much or cost jobs or make coal ash seem like a bad -- bad thing. We even heard the 

word "stigma" on coal ash as a result of this regulation. Well, if you want to see stigma, just come out to 

Roane County and see what it's like trying to put your life, business and property values back together 

when -- after you get hit by the mother of all stigmas

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0165-1

Organization1:Earthjustice

Commenter1:Emily Enderle

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Basically, I wanted to get up here and say a lot of things that are very wonky and very technical. But 

actually it's been really inspirational to see so many young people come out and talk about this particular 

issue and why it matters to them. And why, I think, really it's evident that their generation shouldn't be the 

one that has to finally deal with this mess. We're at a point in time where we can actually deal with coal 

ash in a way that's going to protect people across the country. And there's no better place, I think, to end 

this particular circuit than in Knoxville, Tennessee. 

And I say this because I spent several hours this weekend at about 1200 feet above a lot of Tennessee, 

looking at coal ash impoundment sites and coal-fired power plants across the country. 

And what I don't think is clear to a lot of people is these dams are enormous. The dam that broke at the 

TVA site is -- was 60 feet high. There are facilities across the country; some are as high or expected to be 

as high as 100 feet. There are facilities, dozens of them, that if they were to break, they would result in the 
357

loss of live. I think it's a miracle that nobody died in this case, and that there haven't been more losses of 

life. 

And we're at a point right now with regulations being proposed under C and D where we can actually 

regulate this in a way that will protect not only the people that are dealing with it now but also generations 

to come, including the folks in this room. 

I did want to pass out just some of the pictures that were taken from aerial views. What I think they show 

is that houses are literally across the river way from these impoundment sites. If they were to break, they 

would knock out those beautiful homes; they would knock out those nice boats and docks; they would 

contaminate those river ways; and they potentially kill people. And that's absolutely evident from these 

sites across Tennessee. And there are multiple. So I just wanted to pass these out for you guys to check 

out. 

One point I also wanted to make is we -- I don't think we've talked a lot about arsenic. Arsenic is a known 

carcinogen. We all know that. Science is coming out regularly that says that even small even smaller 

doses are contaminating people and leading to possible cancer across the country. This is one particular 

contaminant of many that are in coal ash, and one that's been contaminating groundwater across the 

country. There are more than 100 proven damage cases either by the EPA or by public interest groups 

demonstrating that either the environment or public health has been compromised across the country. 

And here in Tennessee we've seen that not only one community has been devastated by this but two. If 

you look at Perry County and what they've been dealing with in terms of this ash being taken down there, 

the Arrowhead Landfill declaring bankruptcy, all of the things that they've had to deal with

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0099-2

Organization1:Greenpeace USA

Commenter1:Robert Gardner

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

There are over 130 damage cases that have been clearly documented. This is an ongoing national health 

catastrophe and requires redress immediately. 

Business as usual will not protect the health and welfare of the American people. Responding to pressure 

from Big Coal, prior administrations have allowed the industry to police itself or self- regulate under a 

patchwork of state directives, leading to the extensive contamination of water and land by toxic heavy 

metals. This approach has not and will not protect streams, ponds, rivers, lakes and other waters. 

Here in Kentucky, there are at least three leaking impoundments. There are six high-hazard 

impoundments. In the city of Louisville, there's a high-hazard impoundment at Cane Creek that they are 

trying to expand to about 5.7 million cubic yards of CCW on site. This number of high-hazard 

impoundments places Kentucky third behind North Carolina and Arizona in the number of high-hazard 

ash impoundments nationwide. 

A high-hazard impoundment that fails will probably cause lo -- loss of life. Energy should not cost lives, 

period. People living near unlined coal ash ponds, where water contaminated by arsenic and ash is mixed 

with coal refuse, have an extremely high risk of cancer, up to 1 in 50, 2,000 times greater than EPA's 

acceptable cancer risk.

Response: The Agency acknowledges and appreciates the comment. 
358

Comment Number: TRANS-LVL-0168-2

Organization1:

Commenter1:Virginia Bush

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Furthermore, the -- the coal ash sites in this area are situated in mixed use industrial and resident --

residential areas. So a proven damage case is, in practicality, not possible under the current criteria which 

requires health effect to be directly related to the coal combustion residuals in isolation from other 

surrounding industrial waste. 

The Cane Run site is in the middle of a -- of a chemical complex called "Rubbertown." So these -- so it's -

- the burden of proof is put on ill residents. Additionally, I would urge the EPA to put a moratorium on 

deposition of coal combustion residuals in non-landfill and non-impoundment sites such as abandoned

mines until the risk of underground water and aquifer contamination can be evaluated. 

Finally, how could uniquely associated waste such as precipitation runoff from a coal ash pile be 

assessed? The coal ash piles in Kentucky, like many states, are located on the banks or proximate to the 

rivers, which are also the water supply. In 2009, a U.S. climate change report commissioned by the -- by 

President Bush in 2007, climatologists advised that an increase in flooding and severe storms is probable. 

2010 bore this out with record torrential rainfall and flooding events in Tennessee, Arkansas, Wisconsin, 

North Dakota, Minnesota, Georgia, and Oklahoma. Could the stability of a 14-story coal ash site close to 

the Ohio River, as proposed by E.ON, be assured in a 500 or 1,000 year flood event? What would be the 

incalculable health and environmental cost of toxic exposure after the coal ash is redeposited in and along 

the length of the Ohio River? 

Following the December 2009 Kingston, Tennessee impoundment failure, arsenic, skyrocketed to 2,000 

PPM in drinking water there. When will that cost be added to a balance sheet? 

Yes, I believe coal ash should be regulated as a "Special Waste" under Subtitle C to the Resource 

Conservation and Recovery Act, but the long-term answer is for power providers to move post haste to 

clean non-toxic and diversified energy sources so that humans and the environment are no longer 

devastated on both ends of the coal waste stream -- from the extraction end where the coal slurry ponds 

flood, poison and kill to the post- consumption end where the coal ash impoundments flood, poison and 

kill. I call on the EPA to stand up and lead the way

Response: The Agency acknowledges and appreciates the comment. 

Section 8.3 - Damage case data are unreliable

Total Number of Submissions: 17

Total Number of Comments: 19

Comment Number: TRANS-CHI-0021-2

Organization1:Duke Energy

Commenter1:Richard Meiers

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Certain activist groups are alleging dozens of new damage cases, including Duke Energy facilities. In the 
359

final May 2000 Regulatory Determination concluding the CCRs do not warrant Subtitle C regulations, 

EPA was aware of 14 proven damage cases and 36 potential damage cases. EPA has since listed an 

additional 13 proven damage cases and only 4 four more potential damage cases, bringing the total to 27 

proven damages and 40 potential damage cases, respectively. 

A close examination of the facts reveals many flaws in recent allegations made by activist groups 

regarding additional damage cases. Many of the assertions are based on extremely flimsy evidence with 

unfounded conclusions. EPA cannot rely on those assertions in any final rulemaking without conducting 

its own factual, independent review of the sites and allowing for public comment on their findings

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0161-2

Organization1:Duke Energy

Commenter1:Allan Stowe

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 8.8

Comment Excerpt Text:

Environmental groups allege dozens of new damage cases, listing some Duke Energy facilities. The 

actual number of proven damage cases is quite small. The current total is 27 proven damage cases and 40 

potential damage cases. A close examination of the facts will reveal many flaws in the recent allegations 

made regarding damage cases. Many of the assertions in the reports are based on extremely flimsy 

evidence, with unfounded conclusions meant to scare the public. EPA cannot rely on these assertions in 

any final rulemaking without conducting its own factual, independent review of the sites and allowing for 

public notice and comment on its findings. 

For example, an Electric Power Research Institute analysis of the EPA damage case report in 2008 shows 

only a handful of these cases actually involve MCL exceedances. For example, of the 54 proven or 

potential damage cases cited by EPA in the report involving groundwater contamination, only three 

involved off-site contamination exceeding MCLs. 

The same is likely true with the alleged new damage cases cited by environmental groups. In fact, during 

their press conference, they acknowledged that some of these cases do not involve off-site contamination, 

but were merely speculating that the damage may migrate off-site at some point in the future

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0107-2

Organization1:Ohio Coal Association

Commenter1:Mike Carey

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The EPA's new proposed rule is a reactionary response to isolated incidents and is nothing more than 

another attempt to put coal, only with the companies and individuals that we represent, out of business. 

The efforts to destroy the Appalachian coal industry is simply not going unnoticed

Response: The Agency acknowledges and appreciates the comment. 
360

Section 8.4 - Damage cases reflect old practices

Total Number of Submissions: 35

Total Number of Comments: 46

Comment Number: TRANS-DEN-0053-2

Organization1:Association of State and Territorial Solid Waste Management Officials

Commenter1:Gary Baughman

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

The environmental damage sites the EPA has analyzed are all instances where some, if not all, of the 

disposal activity was conducted prior to strengthening of the design requirements for such activity during 

the 1990s

Response: The Agency acknowledges and appreciates the comment. 

Section 8.5 - Damage cases reflect current practices, and their numbers are growing

Total Number of Submissions: 15

Total Number of Comments: 19

Comment Number: TRANS-ARL-0034-1

Organization1:Physicians for Social Responsibility

Commenter1:Alan Lockwood

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

Each year coal-fired utilities create and dispose of over 120 million tons of coal combustion residues. 

Ironically, as air pollution control technologies improve, this huge waste stream becomes increasingly 

hazardous as toxicants such as arsenic, selenium, and many others that had been released into the air and 

become a part of the CCR waste stream. If CCRs stayed put, the problem we face would be much simpler. 

However, many of these toxicants leach into drinking water supplies, our waterways, into the air as dust, 

et cetera, and harm the health of those who are exposed. Several disposal sites are so toxic they have been 

added to the national priorities list. 

Time does not permit me to present the details of this complex problem, so I will focus my comments on 

arsenic and selenium, two critical constituents of CCR. Arsenic is a known carcinogen that causes cancers 

of the skin, lung, and urinary bladder. Arsenic and CCR placed in surface impoundments creates the 

greatest risk for the development of cancer. The cancer risk for individuals at the 50th percentile of 

exposure is increased by a factor of about 30. Unlined and clay-lined disposal sites have lower but still 

appreciable risks. 

Leaching of arsenic and other CCR toxins has forced the shutdown of water supplies and towns such as 

the town of Pines, Indiana. Exposure to arsenic also increases the risk of developing Type 2 diabetes 

mellitus. As many of you know, Americans are experiencing an epidemic of this largely preventable, 

devastating, and expensive disease. 

CCR also contains significant amounts of selenium. The EPA's own analysis has demonstrated clearly 

that selenium from CCR disposal sites has devastated fish populations and resulted in fish consumption 

advisories. For example, Devil's Lick, North Carolina, selenium eliminated 16 out of 20 species of fish 

and led the Fish Consumption Advisory that was in effect for 7 years. 
361

These are but a few of the numerous, well- studied, and proven instances of CCR damages. Other 

examples include the highly publicized collapse of a dam that contained CCR in Kingston, Tennessee, 

that led to the discharge of about 1 billion gallons of toxic slurry into adjacent waterways. 

In 2009, EPA's sponsored survey showed that there were at least 50 CCR storage ponds that posed a 

significant high risk for failure. Seventy-five of all of the impoundments were behind dams that were 

more than 50 feet high, thus too many CCR repositories have the potential to cause additional, perhaps 

catastrophic, effects on health and the environment. 

On behalf of our members and all Americans, PSR urges the EPA to adopt the measures for regulating 

CCR described in Subtitle C so that the Agency can best fulfill its mission to protect health and the 

environment

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0052-1

Organization1:

Commenter1:Lisa Graves-Marcucci

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

What about health? In 1995, the Pennsylvania DEP granted permission to allow 1 million and a half tons 

of fly ash to be dumped in my parents' back yard. That's how my story begins. I sought help from the 

Pennsylvania DEP, but was told, and this is a direct quote, "We the Department will presume these wastes 

are safe until citizens can prove otherwise." 

Why would it be the responsibility of the citizens to prove fly ash was unsafe? Why would the 

Pennsylvania DEP protect ash and not health? Who gave this directive? We soon learned that the 

Pennsylvania DEP was considering a statewide general permit that would allow fly ash to be dumped 

virtually anywhere in our state without protections, but called beneficial. 

We requested a public hearing before the general permit was issued, and we were told one would be held 

if sufficient interest was expressed. Hundreds of requests were submitted, however, we never did receive 

our public hearing, and the general permit was granted on December 23, 1997, without any public input. I 

believe this was by design, done systematically to exclude public scrutiny, clearing the way for a 

statewide cheap unregulating coal ash dumping. 

To policymakers, rules mean facts and figures on a printed page, but communities like mine live with the 

deadly consequences these misguided policies create. It is long overdue. Protecting human health from 

toxic coal ash should be priority number one, not saving money for wealthy industries and their lobbyists. 

Throughout the next few weeks you will be introduced to real people living and dying with the dangers 

created by mismanaged coal ash dumping. Pro-industry policies at the Pennsylvania DEP are running 

rampant as evidence by file reviews and the recent reports "Out of Control" and "In Harm's Way." 

I have reviewed tens of thousands of Pennsylvania documents throughout the past decade and I can tell 

you unequivocally I have never reviewed a coal ash disposal site in Pennsylvania that did not have 

contamination. Every single site I have reviewed has been highlighted in yellow or circled in pencil but 

filed back in the file. Time and time again the Pennsylvania DEP does nothing to enforce. I ask you to 

remember our faces. We are real people, we have real concerns, we are here because of our health, and 

we ask you to please focus the decision-making on health protections.

Response: The Agency acknowledges and appreciates the comment. 
362

Comment Number: TRANS-CHI-0051-2

Organization1:Sierra Club

Commenter1:Bruce Nilles

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

How much more study do we need? We have 137 sites in 34 states where we know there are serious 

problems. And the more we look the more we find. So, we have a very simple message. You've been 

studying this problem for 25 years, every year the problem gets worse. It's time to say no. This industry 

will have to play by the same rules that everyone else plays by. And all we're saying is if you're going to 

burn coal in the United States, then you need to make sure that you're paying the full price of generating 

electricity from coal and stop pawning off these huge costs on the communities who are being threatened 

with poisoned water today

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0083-1

Organization1:New Age Fastening Systems

Commenter1:Steve Swartz

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

Earlier, there was a testimony from Harsco Corporation, an environmental engineer, and he spoke about 

that they have 15 sites within a 500 mile radius area. What they're producing is coal slag abrasives. I want 

to submit the, this is a picture of a facility that's literally ten miles from this position, over 20,000 to 

30,000 tons of coal combustion waste on the ground. It's not in any lined containers or any type of 

containment. This is a typical site. They have 15 of these sites. You're talking about a million tons of this 

a year on the ground. 

Next exhibit is Exhibit B. Now, this is the same shot but it's a little farther shot. And it gives you a good 

indication of where this plant is in proximity to Lake Michigan, literally less than four miles away. So,

right now, I think it was September 7th, the EPA, actually Lisa Jackson had said that President Obama 

has made protecting the Great Lakes a national priority. Now, when I look at these pictures, we keep 

talking about common sense, to me it doesn't seem like it's very commonsensical that you would put all 

this material near a treasured waterway. 

You know, this is the second that I've come to these hearings and I keep hearing the word TCLP. Earlier, 

the engineer had spoken about TCLP which is a testing means for leaching in a landfill. Now, understand 

when you have 30,000 tons of material, okay, in a landfill, okay, I need to do a little, I just need to explain 

this, it's in a landfill. I understand the leaching part of that. I don't totally agree with the test but I 

understand that. But when you have the same amount of material that's on the ground, what does the 

TCLP have to do with that? I'm just, I don't understand that. So, if someone could explain that to me? It 

just, to me, it doesn't sound like it's relevant. 

In closing, July 19th, 2010, an executive order was released from the White House citing the immediate 

attention paid to the overall stewardship of the oceans, coasts and the Great Lakes. The true definition of 
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stewardship is a person using every talent and repeatedly sacrificing desires to do the right thing. I think 

at this point we just need to do the right thing, and we trust that the EPA will do that

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0170-1

Organization1:

Commenter1:Molly Kurtz

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

At the Southern Illinois Power Cooperative Lake of Egypt plant near Marion, Illinois, toxic coal ash and 

sludge have been placed in six unlined ponds, one unlined landfill, and one lined pond since 1963. The 

landfill was built in the floodplain between the confluence of Saline Creek and South Fork Saline Creek. 

Groundwater monitoring has been required in the vicinity of the landfill and ponds only since 1994. And 

high concentrations of the toxic heavy metal cadmium were first detected in 1997. 

In the wake of the 2008 Kingston, Tennessee disaster, Illinois conducted a statewide review of ash 

impoundments. Illinois EPA found elevated boron, cadmium, and iron above Illinois Class 1 groundwater 

standards at the Marion site. The little Saline Creek is now contaminated. 

Does this affect people? Gene who is a farmer worries about the leachate from this dump contaminating 

his cattle pasture. Sue who works at a nearby federal prison worries about the groundwater pollution and 

the high rate of cancer among her co-workers. Other people are worried, too, but they're afraid to speak 

up. Those that live at the Lake of Egypt feel intimidated by Southern Illinois Power because the company 

owns the lake they live on

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0073-1

Organization1:

Commenter1:Christine Ellis

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

The Waccamaw River is a significant feature in our area. It's our source of drinking water. It affords 

myriad recreational opportunities: Fishing, swimming, boating, aesthetic beauty, and supports a unique

and diverse flora and fauna. It flows through the city of Conway and in fact the city of Conway has 

embraced the river for all of its benefits, both environmental and economic. The city of Conway and the 

Waccamaw River lie within the shadow of the Dolphus M. Grainger steam generation station. The 

Grainger plant, owned by Central Electric Power Cooperative, and operated and maintained by Santee 

Cooper, began operation in 1966. It has two ash ponds. The first was constructed in '66, then expended in 
364

'67. The second was constructed in '77 and expanded in 1990. In 2009, a Santee Cooper task force was 

struck to evaluate the need and extent for future structural integrity testing of those two ponds. These 

units, as you know, are not regulated by state or federal agencies. 

In 2000, nine years before the task force was struck, Santee Cooper reported that groundwater monitoring 

results showed arsenic concentrations above the drinking water standard. The two wells in fact had 

extremely high concentrations, up to 91 times the drinking water standard. 

Surface water sampling was taken up in 2001, 2006 and 2010 and not yet had there been shown to be 

concentrations of arsenic in surface water above drinking water standards. However, I say not yet because 

even though there's no data for the Waccamaw River, there's plenty of evidence of off-site impacts of 

other coal plant sites

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0146-1

Organization1:Appalachian Voices

Commenter1:Eric Chance

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1 6.4.3

Comment Excerpt Text:

Based on a review of the voluntary groundwater monitoring data, every coal ash pond in North Carolina 

for which data was available is leaching heavy metals and other pollutants into groundwater. This 

leaching is causing heavy metals to be taken outside of the waste boundary. Equally as alarming is the 

prevalence of groundwater contamination at these sites is the level of contamination. Monitoring showed 

681 exceedances of State groundwater standards including arsenic levels up to 8.8 times the State 

standard, boron levels up to 16.6 times the State standard, chromium levels up to twice the State standard, 

iron levels up to 380 times the State standard, lead levels up to three times the State standard, and 

manganese up to 200 times the State standard. This contamination not only has the potential to damage 

nearby waterways, but it can also contaminate the drinking water of nearby residents. And only one of the 

13 ash ponds reviewed by this study has NC Department of Environmental and National Resources 

required any sort of cleanup or monitoring or further monitoring action. 

Appalachian Voices has also partnered and researched in the wake of the Kingston, Tennessee coal ash 

spill. Research has been ongoing since the spill and has shown levels of arsenic, barium, cadmium, lead 

and selenium in the Emory River exceeding protective drinking water standards and/or aquatic life 

criteria. Although water quality has returned to a more normal state since the spill, ash and ash-laden 

sediments with high levels of arsenic have washed far downstream from the spill site. Also, selenium 

levels in fish downstream from the site continue to rise and at exceeded threshold levels for reproduction 

and growth. 

Our research clearly shows that coal combustion waste has significant impacts on groundwater, surface 

water and aquatic organisms. Current regulatory framework does not adequately address the toxicity of 

coal ash and has allowed the contamination of our nation's water to go on for too long. 

Our research shows that coal ash is hazardous to the environment and we believe it should be regulated as 

a hazardous waste under Subtitle C

Response: The Agency acknowledges and appreciates the comment. 
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Comment Number: TRANS-DAL-0052-1

Organization1:Environmental Integrity Project

Commenter1:Ilan Levin

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

About halfway between Austin and Houston is a large coal-fired power plant. It's in Fayette County, 

Texas. It's called the Fayette Power Plant. It's operated by the Lower Colorado River Authority. 

Groundwater sampling on the site shows levels of selenium, cobalt, and molybdenum that exceed 

drinking water standards. 

The Texas Commission on Environmental Quality has notified a couple of neighboring landowners that 

their wells may be contaminated. But that's just the tip of the iceberg. The real issue and the real concern 

today is what we don't know because of the remarkable lack of groundwater monitoring in Texas and 

across the country. 

The threat to public health and the damage to the environment that is documented by EPA and others in 

recent reports is mounting evidence of the accumulating harm from poorly regulated coal combustion 

waste disposal sites. The quantum leap in coal ash sites with documented contamination from the seven 

sites identified by EPA in its report to Congress in 1999, to about 137 sites that we know about today, 

demonstrate that whenever we look, whenever we do groundwater monitoring, onsite or offsite, we 

invariably find contamination at virtually every coal ash pond and landfill currently operating. 

The Electric Power Research Institute, EPRI, and some state agencies stubbornly insist that coal ash is 

safe because it passes the EPA's toxicity leaching test, but the National Research Council warned in 2006 

that the leach test was not an accurate method for measuring the leaching potential for toxic metals. 

In closing, let me say that contamination of the environment and water supplies with toxic levels of 

arsenic, lead, and other chemicals is a pervasive reality at America's coal ash disposal sites because states 

are not preventing it. 

The case for a national recommendation setting common-sense safeguards for states to meet, such as 

liners, monitoring, cleanup standards, could not be more persuasive, and the need for direct EPA 

involvement is clear.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0096-1

Organization1:Appalachian Voices

Commenter1:Eric Chance

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

In North Carolina, a review of voluntary groundwater monitoring data revealed that every coal ash pond 

for which data was available is leaching heavy metals and other pollutants into groundwater. Equally as 

alarming is the prevalence of this contamination; is the fact that at all of these sites, the levels of 

contamination were very high. 

The monitoring showed 681 exceedances of North Carolina state groundwater standards, including 

arsenic levels up to 8.8 times the state standard, boron levels up to 16.6 times the state standard, 

chromium levels up to twice the state standard, iron levels up to 380 times the state standard, lead levels 
366

up to three times the state standard, and manganese levels up to 200 times the state standard. 

This contamination not only has the potential to damage nearby waterways, but it also can contaminate 

drinking water of nearby residents. The extent and degree of this off-site contamination is largely 

unknown because it has not been studied, and there is no legal requirement for the companies responsible 

for it to do so under the current regulatory framework. 

And at only 1 of the 13 ash ponds reviewed in this study did the North Carolina Department of 

Environmental and Natural Resources require any sort of clean up. 

In Tennessee, Appalachian Voices has also partnered in research in the wake of the Kingston coal ash 

spill. Research has been ongoing since the spill, and has shown levels of arsenic, barium, cadmium, lead, 

selenium in the Emory River in exceedance of drinking water and aquatic life criteria. 

Although water quality has returned to a more normal states, ash and ash laden river sediments with high 

levels of arsenic have washed far downstream from the spill site. Also, selenium levels in fish 

downstream from the site continue to rise, and have exceeded threshold levels for reproduction and 

growth. 

Our research clearly shows that coal combustion waste has significant impacts on groundwater, surface 

water, and aquatic organisms. The current regulatory framework has not adequately addressed the tox --

toxicity of coal ash, and has allowed this contamination to go on for too long. We believe that it should be 

regulated under Subtitle C

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0114-1

Organization1:Solar Valley Coalition

Commenter1:Brian Paddock

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

In 2009, I became aware of a pollution from the Trans-ash landsfill (sic) called the Bevins landfill. And 

without going into the history of that landfill, I would like to submit in aid of this comment a -- a dir -- a 

commission's order directed to the operators of that monofill coal ash landfill. 

It lays out the history in which a permit by rule permit for the first section of a -- of coal ash dumping in a 

-- essentially unlined gravel pit was permitted for the Johnsonville TVA plant's ash. The edges --

apparently, the vertical walls were lined, but the bottom was not. And the installation was simply not 

done as set up by the permit. Ultimately, the commissioner's order I've handed in was given out. 

The -- there has since then been a Phase 2. And as TVA admitted in the environmental assessment for 

Phase 2, they said, well, a lot of leachate came out of that, even though we didn't expect any. Essentially, 

we expected it to all leak into the ground, but it started coming out in a pool. So we've had to collect it up 

and pump it, and take it over -- back over to the plant, where we pit it in ponds that essentially leak back 

into the Tennessee River. So that's the state of -- of that. 

And I'm going to give as Web page here that has the complete environmental assessment -- the complete 

environmental assessment links for TVA's analysis of what went wrong with Phase 1, and what they're 

going to do in Phase 2. 

Originally, Phase 2 was requested again as a permit by rule. And in fact, after the public hearing, someone 

discovered a page of exemptions that were being requested of the commissioner to essentially strip away 

most of the protections in the standards for containment. Ultimately, the department found its courage and 

said that this was going to have to be a full Class 2
367

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0191-1

Organization1:Environmental Integrity Project

Commenter1:Sam Flenner

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

I really wasn't planning to testify here but I'm just going to sort of wing it because there's just one thing 

that I think needs to be made very clear. The people that came and testified from the Mount Carmel area, 

including people from east Mount Carmel or Princeton area, Duke Energy ran municipal water out to a 

number of people because it was clear that they contaminated their wells. They had to stop fishing in the 

pond that they had, and that's when they started the dry landfill. 

There are several other neighbors down the highway from where they ran water to, their wells are, we 

believe, contaminated. We don't have the means to do the testing at this point in time. We're trying to 

raise the means so that we can make this further than hearsay. 

This is the reason why we need Subtitle C. We need somebody other than the Indiana state regulatory 

regulators who will not do anything about this. 

Duke will not do anything about this. And, in fact, one person who had a lawsuit and dropped it against 

Duke, who owns a bait shop that is in east Mount Carmel, has constantly told us, as we've asked him to 

testify, "You can't beat Duke. Duke's got the politicians bought." And, you know -- and this is just they 

way people are. The apathy is just absolutely terrible. 

Now we go to Mount Carmel, across the river, to look for some support. Larry here, his wife was ill 

today, she was going to come and speak. She speaks a little bit better. But he just handed in 250 petitions 

from people in Mount Carmel who asked their city council to pass a resolution and -- endorsing Subtitle 

C. And they didn't. And I've heard rumors as to why they didn't but it's hearsay, so I really can't testify to 

it with any accuracy. 

But, you know, one person who told us he was going to come here and then didn't come here, though, told 

us the -- that Duke's outreach is very, very and deep. 

And so we had somebody here who told us he was going testify, then for some reason, because of Duke's 

influence in the area there, decided not to testify. 

So, this is -- this is why I'm testifying today. I know there's just a little bit of time left. But without 

Subtitle C, without federal enforceability, without the federal government being able to say, yes, you will 

go out and see that these, you know -- that you will do the testing, that you will document and make --

and -- and make explicit or transparent what's going on, thi -- it's not going to happen. And the Indiana's 

regulatory commission, they're not going to do anything. If the EPA doesn't do it, then the number of 

damage cases will continue to rise. 

There's a huge cancer cluster in Mount Carmel right now. And, again, we have to get more 

documentation. It's there. It's just going to take some time. 

Thank you.

Response: The Agency acknowledges and appreciates the comment. 

Section 8.6 - Additional data/info provided about specific CCR damage cases: EPA seeks comment 

on extent of existing damage cases (35133); EPA seeks additional data regarding proven damage 

cases identified by EPA, focusing on off-site contamination (35148, 35224)

Total Number of Submissions: 15

Total Number of Comments: 29
368

Comment Number: TRANS-CLT-0134-1

Organization1:Appalachian Voices

Commenter1:Sandra Diaz

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

I personally came to realize the massive destruction that coal and its waste by-products can cause. I was 

actually one of the first people to commute into the massive coal ash spill in Harriman, Tennessee to 

assist with water testing in December of 2008. What I saw before me was what once was a free- flowing 

river that had become a toxic coal ash pit filled with dead fish. And the test results we collected from that 

sampling were not a surprise. We are still -- very frightening to see. The presence of toxic heavy metals 

like arsenic, barium, cadmium, lead and selenium were at alarming levels. And the people's lives that 

lived there were forever impacted -- the many adults and children experiencing health issues; many whose 

homes are now part of a toxic site. 

Response: The Agency acknowledges and appreciates the comment. 

Section 8.6.1 - Info supporting a proven damage case (i.e., meets EPA criteria to be proven)

Total Number of Submissions: 25

Total Number of Comments: 46

Comment Number: TRANS-ARL-0084-2

Organization1:

Commenter1:Bryce Payne

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

For 12 years I investigated coal ash as a consulting scientist under contract for coal power plants. For 

those 12 years, industry supported just enough science to ease regulatory compliance but never enough to 

confirm safety. Then I investigated selenium impacts in groundwater related to the 2005 ash spill in 

Pennsylvania. That experience confirmed for me that industry prefers ignorance over information and 

some subservient science over scientific integrity and rigor. Based on my conclusions regarding selenium 

and coal ash in Pennsylvania, I attempted to warn TVA, TDEC and EPA of risks in the planned spill 

response to the TVA 2008 ash spill. I was joined by colleagues and we were ignored. 

New data will soon be released that show fish in the impacted river system have gone from initial tissue 

selenium levels of 3 to 5 parts per million to now lethal levels over 20 parts per million of arsenic and 

selenium each. Humans and wildlife are almost certainly eating those fish. This is what coal ash can do 

and conventional coal ash thinking cannot see it coming. 

Let me now attempt to disabuse you and anyone else who will listen, of some coal ash science, 

engineering, regulatory myths and misconceptions illustrated by these two cases. One, both the failed 

ponds, PPL and TVA, were designed by and operated with the assistance of professional engineering 

staffs. Two, when the TVA dike failed at an ash stack height of 65 feet above grade, TVA and consulting 

professional engineers were attempting to get approval for a final height of over 300 feet and already had 

state approval to go over 100 feet. Three, halfhearted science has led to fundamental misconceptions 

about and disregard for ash and its properties. Those misconceptions relied upon by engineers, managers, 

consultants and regulators caused the dike failure and produce a fundamentally flawed root cause 

analysis. The TCLP failed to detect probably selenium releases from ash in the PPL and TVA cases. The 
369

new multi-pH tests will not fair much better because they too ignore fundamentals of the chemistry, 

physics, biology and behavior of coal ash. NPDES permits at the PPL and TVA ash spill sites, like at 

most power plants, did not require monitoring of selenium, arsenic or other ash-derived toxics and 

therefore provide no protection. 

Extending from these points, I would ask that EPA consider the following questions. How is it that an 

open pit mine is functionally different from a sand pit or quarry? Given the history of liners covers only 

30 to 40 years, why would one presume for risk analysis that they remain intact for centuries or 

millennia? May our descendents forgive us when these time capsules in the future open, and they will. I'd 

like to expand on these and other points but I'm sure I'm out of time

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0026-1

Organization1:PINES Group

Commenter1:Paul Kysel

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

I'm here today to voice strong support for the classification of coal combustion waste as hazardous under 

RCRA Subtitle C. 

The historic ineffectiveness of RCRA Subtitle D has been clearly illustrated in the Town of Pines. The 

drinking water wells of the entire Town of Pines, an EPA "proven damage case", were poisoned by ash 

generated by the Michigan City coal-fired power plant owned and operated by Northern Indiana Public 

Service Company known as NIPSCO. Levels of boron, molybdenum, arsenic as well as a whole host of 

other heavy metals as well as contaminants including radiation well above health-based standards 

migrated from a nearby, inadequately lined landfill owned and operated by another entity, Brown, 

Incorporated, just south of Indiana Highway 520 and US Highway 20 in the Town of Pines, and from its 

use as "structural fill" over much of the town as a so- called "beneficial use" of this ash material. 

Only after a federal lawsuit was filed against NIPSCO, the only recourse available to citizens under 

Subtitle D of RCRA, did the company provide safe drinking water to some of the town (there still are a 

significant number of residents who are still dependent upon bottled drinking water) through the EPA's 

involvement. 

In April 2000, residents of the town began noticing that their well-sourced drinking water tasted unusual. 

So, they reported it to the state, Indiana Department of Environmental Management. Incredibly, IDEM 

knew for nearly 30 years that Yard 520 was leaking arsenic and other contaminants to a nearby creek. In 

addition to contaminating the groundwater of the Town of Pines, the landfill also threatens protected 

streams in the Indiana National Dunes Lakeshore area. Contaminated groundwater from Yard 520 flows 

into Brown Ditch, a creek that flows along the edge of the landfill and eventually into the National Park 

before discharging into Lake Michigan, two miles from the municipal water source that brings the water 

back to the town of the people where they lost their ability to drink safely from their wells. 

Downstream from the landfill, the creek carries high levels of boron and molybdenum. Indiana National 

Lakeshore is an especially important feeding and resting area for migrating land and water fowl. Fish, 

birds, mammals, all harmed. 

Our town's experience has clearly demonstrated a need for strict regulation of coal combustion waste as 

hazardous. We live in a time when large corporations often view environmental regulations as obstacles 

to greater profits and regulatory fines as the cost of doing business. Few can be trusted. We need federal 

action on this now. 
370

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0076-1

Organization1:Duke University

Commenter1:Avner Vengosh

Commenter Type: Academia

Classification: Substantive

Comment Excerpt Text:

My name is Avner Vengosh, and I'm professor of chemistry and water quality at Duke University and my 

testimony today is based on the scientific research that my group had been conducted since January 2009,

a week after the spill of the TVA ash in Kingston, Tennessee. Research that we've been conducted since 

the spill was funded only by Duke University and NSF. 

An 18-month survey of the water quality in the Emory and Clinch River in the vicinity of the 2008 TVA 

(inaudible) in Kingston has revealed elevated levels of contaminants associated with CCRs including 

arsenic, selenium, boron, strontium, and barium in surface water, with restrictive (inaudible) and also in 

coal water that extracted from bottom sediments in the river. 

Our study has shown that high concentration of arsenic, up to 2000 ppb, exceeded that we found in the 

coal water, and this high concentration significantly exceed the MCL of 10 ppb and (inaudible) which is 

the ecological threshold of 150 ppb. So we're talking about 2000 ppb level of arsenic. 

So we also performed a leeching experiment on the TVA ash and we found, as the literature showed very 

extensively, similar results showing the high mobility of contaminants if the (inaudible) interaction with 

CCR with water. 

The impact of CCR on water resources, however, is not restricted to a single accidental, as over 500 

power plants nationwide generate approximately 130 million tons of CCR each year. Only in North 

Carolina, about 1 billion gallons of effluent coming from holding ponds is discharged into the 

environment. This is equivalent to the amount of drinking water in New York city of eight million people 

every day. 

We already started to investigate the water quality in (inaudible) and we found alarming evidence for the 

discharge of affecting the water quality. The notion that CCR generate a direct threat to the aquatic 

system through holding ponds, landfill, and even beneficial use (inaudible) what CCR could be 

(inaudible) interact with ambient environment should become the principal decision-making criteria for 

EPA, and this committee in particular. 

Water resources that are associate could be impacted by CCR should be mandatory regulated by the state 

and/or EPA with adequate (inaudible) such as are relevant to the CCR, including metals and metal 

(inaudible), like arsenic, selenium, boron, and many others.

Response: The Agency acknowledges and appreciates the comment. 

Section 8.6.2 - Info indicating a damage case does not meet EPA criteria to be proven

Total Number of Submissions: 33

Total Number of Comments: 36

Comment Number: TRANS-ARL-0053-2

Organization1:American Coal Ash Association

Commenter1:Thomas Adams

Commenter Type: Trade Association

Classification: Substantive
371

Comment Excerpt Text:

The EPA has cited damaged cases as a primary basis for creating its hazardous waste disposal regulations. 

None of the cases, the damaged cases, are connected to beneficial use of coal combustion products, not 

one single case. In fact, two of the specific cases cited by EPA have shown no effects on human health 

and the environment. The EPA's own Region 3 report on the Battlefield Golf Course states there is no 

effect on groundwater in the property surrounding the golf course. Two reports on the Kingston, 

Tennessee impoundment failure indicate no short-term or long-term health effects related to the spill. The 

U.S. Department of Health and Human Services, along with Tennessee Department of Health, issued a 

report last December stating that there were no long-term health effects indicated from the spill. 

Within the last 3 weeks, an additional report was issued on testing of 200 individuals residing in close 

proximity to the Kingston plant which showed no material health effects related to the spill. Both of these 

are EPA prime examples to justify the need for hazardous waste regulations which show no damage to 

human health. So we must ask the question, is there no damage because there is no damage, or is it that 

we just have not done enough research? And if it the latter, how much research is enough?

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0074-1

Organization1:ARIPPA

Commenter1:Jeff A. McNelly

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

EPA's motivation to propose these rules appears to be based on what EPA has termed proven damage 

cases, citing two ash impoundment accidents at Kingston, Tennessee, and Martins Creek, Pennsylvania. 

This is in spite of the fact that a thorough study of the Martins Creek accident found no adverse impacts to 

the river, wildlife or human health, and that the Tennessee Department of Health found no significant 

human health impacts due to the Kingston accident. These findings combined with safe management of 

the vast majority of ash sites and the beneficial uses clearly indicates that EPA is acting in a capricious 

manner. EPA's true motivation to propose these rules appears to be based on political media appeasement 

versus scientific fact

Response: The Agency acknowledges and appreciates the comment. 

Section 8.7 - New reports of potential CCR damage cases (not already reported to EPA)

Total Number of Submissions: 26

Total Number of Comments: 37

Comment Number: TRANS-ARL-0017-1

Organization1:

Commenter1:Ruth Santiago

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 6.1.1

Comment Excerpt Text:

Hundreds of thousands of tons of coal ash are being used as fill material at construction sites above the 
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South Coast aquifer in Southeastern Puerto Rico. CCRs are being deposited within a few meters of public 

water wells, irrigation canals, streams, farms, wetlands, beaches, and other sensitive areas. The aquifer is 

the sole source of potable water for approximately 53,000 residents of Salinas and Santa Isabel, and many 

more thousands of people in neighboring municipalities. 

In some places, contractors have excavated huge holes that are filled with CCRs below the aquifer water 

table. Groundwater sampling results at the Salinas municipal landfill, where coal ash has been used as 

daily cover, indicate the presence of selenium and other heavy metals associated with CCRs above 

background levels. Residents of coastal areas fear that heavy metals, toxins, and radioactive isotopes in 

the CCRs are leaching into the water supply and will cause serious public health problems. 

In addition to providing potable water for tens of thousands of people, the aquifer feeds the unique Jobos 

Bay estuary, a designated National Estuarine Research Reserve. As in the town of Pines, Indiana, the 

reserve and contiguous areas where coal ash is being buried contain low-lying, poorly drained wetlands. 

As in Pines, the soil is very sandy, unconsolidated, acidic, with high organic content. In some areas, the 

aquifer is contained within a thin, less than 40 feet clay-rich confining layer facilitating contact with the 

CCRs, particularly during hurricane season such as right now. 

CCRs from the AES Puerto Rico, Limited Partnership, power plant are virtually given away at 15 cents 

per ton to anyone who will take them. AES also provides free transportation to residential and 

commercial construction sites. AES has no on- or off-site disposal facility and disposes of all -- disposes 

virtually all CCRs that it admits exceeds 300,000 tons per year through secondary use at construction sites 

and daily cover at the landfill. 

Even after construction is completed, the coal ash is exposed because the rain erodes the thin layer of dirt 

sometimes placed over the CCRs. At once site a virtual mountain of CCRs was dumped similar to the 

illegal disposal of AES residues in the Dominican Republic in 2003/2004, which has been the subject of 

various lawsuits and a multimillion-dollar settlement paid by AES. 

In the settlement agreement, AES prohibited the Dominican government from using any evidence that 

AES coal ash is toxic or harmful. That's in paragraph 8 of that agreement. The Agremax use contract that 

AES requires all recipients to sign, limits the type of testing that can be done on the CCRs. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0051-1

Organization1:Environmental Integrity Project

Commenter1:Jeff Stant

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

I'd like to focus on the release of our report last week of "In Harms Way: Lack of Federal Coal Ash 

Regulation Endangers Americans and Their Environment" that we co-released last week with Earthjustice 

and the Sierra Club which documents the problem of coal combustion waste contamination at 39 more 

coal ash sites and demonstrates that in many cases state agencies have remained silent while private and 

public drinking water supplies are threatened by the contamination. 

Highlights of the report are as follows. Number one, that contamination from CCW is pervasive. When 

combined with the 31 other coal ash sites examined by EIP and Earthjustice in a February report, and the 

sites already acknowledged by EPA to be damaged by coal ash, the list of contaminated sites comprises 

some 137 sites now spread across 34 states, making this truly a national water pollution problem. At 

every one of the 35 sites in this report that had groundwater monitoring data, contamination of the 

groundwater was readily apparent. 

Number two is that the levels of contamination are toxic. At every one of the 35 contaminated sites, 
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MCLs for metals were exceeded in underlying groundwater with exceedances ranging as high as 341 

times the standard for arsenic at the Hatfield's Ferry Landfill in Pennsylvania, 170 times the standard for 

cadmium, and 179 times the standard for lead in groundwater leaving the Little Blue impoundment in 

Pennsylvania, 37 times the standard for selenium at the Northeastern Landfill in Oklahoma, and antimony 

at 52 times, beryllium 30 times, chromium 17 times, and nickel 22 times at groundwater leaving the 

Industrial Access Landfill in Ohio. 

The third point is that the contamination is endangering people. At the five sites in which off-site 

monitoring of drinking water wells was undertaken, contamination of the wells was confirmed in every 

case, with four of the five having confirmed exceedances of MCLs in residential wells. Additionally, state 

records indicate that at least five private drinking water wells are located within 2 miles of 19 of the sites, 

and in 13 of those sites, the wells are in the direction that the contaminate flow is moving. 

In eight cases there's 25 or more private drinking water supplies within 2 miles of the site, and in two 

cases there's more than 90 wells within a mile of site. People are in harm's way. 

The fourth and last point is that states are not preventing the contamination or requiring it to be 

remediated. Despite some indication of contamination being acknowledged at 21 of the sites, operators 

have been required to determine the extent of the contamination at only five of them. At no site did we 

find the state requiring operators to clean up the contamination even when it was acknowledged that the 

contamination had moved beyond the property lines of the dump sites. 

I'd like to just close by saying that the decision about coal combustion waste facing EPA has been 

inevitable for decades. The agency must do its job under federal law and stop the pervasive, imminent and 

substantial threat to human health in the environment occurring around the nation's coal ash dump sites 

today

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0054-1

Organization1:Environmental Integrity Project

Commenter1:Lisa Widawsky

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

As I'm sure you know, both Subtitle C and Subtitle D will completely exempt regulation of beneficial 

reuses. Everyone in this room knows that, and you know that, too. We're not trying to regulate beneficial 

reuses, we're trying to get safeguards put in place from unsafe disposal that's been happening around the 

country, in Maryland, Virginia and all of the places you're hearing about today and in the next few weeks. 

EIP, our organization, was founded by former EPA enforcement attorneys to ensure strict implementation 

and enforcement of environmental laws. We have recently investigated polluting coal ash dump sites 

throughout the 31 states nationwide that are now already home to leeching coal ash dumps due to 

insufficient regulations and meager state enforcement attempts, including Maryland, Pennsylvania, and 

Tennessee. I'm licensed to practice in the Commonwealth of Pennsylvania, and I've spent many hours 

throughout the state visiting with families and communities struggling to protect their livelihoods and 

their lives from the toxic effects of mismanaged coal combustion waste dumps in their communities. 

Although Pennsylvania has among the most extensive coal ash disposal regulations in the country, 

requiring liners, groundwater monitoring and other protections that many other states in the country still 

lack, its coal ash regulatory system is fraught with gaps that make the Subtitle C regulations a necessity 

for the protection of Pennsylvanians as well as citizens throughout the country. 

The Pennsylvania regulations have grandfathered out of regulation disposal sites that were active before 
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the regulations were promulgated in 1992 and have left dangerous loopholes that permit and even 

promote dangerous so called beneficial reuses like reclamation of abandoned mines with coal ash of 

which there have been several damaged cases. These deficiencies in the state regulatory scheme have put 

communities at risk despite the state's intention to regulate this toxic waste stream with more stringent 

regulations than most other states

Response: The Agency acknowledges and appreciates the comment. 

Section 8.8 - EPA seeks comment on EPRI’s November 2009 report (35148, 35224)

Total Number of Submissions: 19

Total Number of Comments: 28

Comment Number: TRANS-CHI-0021-3

Organization1:Duke Energy

Commenter1:Richard Meiers

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

An EPRI analysis, the Electric Power Research Institute, of EPA damage case report in the 2008 Notice 

of Data Availability (NODA) shows only a handful of these cases actually involve circumstances where 

there was an offsite contamination of a primary drinking water standard MCL occurred. Of the 54 proven 

or potential damage cases cited by EPA in the NODA involving groundwater contamination, only three of 

those involved offsite contamination exceeding the primary drinking water standards. The same is likely 

true with the alleged new damage cases. In fact, during their press conference, the activists acknowledged 

that some of these damage cases do not involve offsite contamination, but speculate merely that damage 

may migrate offsite at some point in the future

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0161-2

Organization1:Duke Energy

Commenter1:Allan Stowe

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 8.3

Comment Excerpt Text:

Environmental groups allege dozens of new damage cases, listing some Duke Energy facilities. The 

actual number of proven damage cases is quite small. The current total is 27 proven damage cases and 40 

potential damage cases. A close examination of the facts will reveal many flaws in the recent allegations 

made regarding damage cases. Many of the assertions in the reports are based on extremely flimsy 

evidence, with unfounded conclusions meant to scare the public. EPA cannot rely on these assertions in 

any final rulemaking without conducting its own factual, independent review of the sites and allowing for 

public notice and comment on its findings. 

For example, an Electric Power Research Institute analysis of the EPA damage case report in 2008 shows 

only a handful of these cases actually involve MCL exceedances. For example, of the 54 proven or 
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potential damage cases cited by EPA in the report involving groundwater contamination, only three 

involved off-site contamination exceeding MCLs. 

The same is likely true with the alleged new damage cases cited by environmental groups. In fact, during 

their press conference, they acknowledged that some of these cases do not involve off-site contamination, 

but were merely speculating that the damage may migrate off-site at some point in the future

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0045-3

Organization1:Duke Energy

Commenter1:Debbie Nispel

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

An EPRI analysis of the EPA damage case report in the 2008 Notice of Data Availability shows only a 

handful of these cases actually involve circumstances where offsite contamination occurred of a primary 

drinking water standard, also known as a primary MCL. Of the 54 proven or potential damage cases cited 

by EPA in the NODA involving groundwater contamination, only three involved off-site contamination 

exceeding pre -- primary MCLs. The same is likely true with the alleged new damage cases. In fact, 

during their press conference, the activists acknowledged that some of these cases do not involve offsite 

contamination, but speculate merely that the damage may mitigate -- may migrate offsite at some point in 

the future

Response: The Agency acknowledges and appreciates the comment. 

Section 8.9 - EPA seeks comment on February 2010 report of additional damage cases by 

Environmental Integrity Project and EarthJustice (35224)

Total Number of Submissions: 110

Total Number of Comments: 160

Comment Number: TRANS-ARL-0002-1

Organization1:Environmental Integrity Project

Commenter1:Eric Shaffer

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Last week, EIP, Earthjustice, and the Sierra Club, released a report documenting another 39 coal ash sites 

that have contaminated groundwater or surface water adding to the 31 we provided you in February. And 

when I say "contamination," I mean arsenic, lead, and other toxic metals that exceed drinking water or 

water quality standards sometimes by a factor of 10 or more. 

Now, we know most of this data comes from monitoring wells that are on-site, but that's because states 

almost never require off-site monitoring. Where that data exists, it invariably shows contamination. 

My question to you is, the law requires you to evaluate this damage. What are you doing to evaluate the 
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information we presented to you? And, more importantly, why aren't you taking the initiative to get this 

kind of information yourself?

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0113-1

Organization1:Midwest Generation

Commenter1:Maria Race

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

The Joliet 9 landfill was recently identified in the August 2010 publication entitled "In Harm's Way" 

prepared by certain environmental interest groups to support their claims that federal regulation of coal 

ash is needed and, in particular, regulation of coal ash as a hazardous waste. 

I've been personally involved with the Joliet 9 landfill since 2001. The true story of Midwest Generation's 

Joliet 9 landfill does not support the claim that more federal regulation of coal ash landfills or regulation 

as a hazardous waste is needed to protect the public health; rather, it shows that current Illinois 

regulations are protective of the environment and public health. 

So much of what is contained in the "In Harm's Way" publication is false and misleading that I will not 

have enough time today to identify and correct all of its errors. However, I will cover the most egregious 

of their false claims. * In the "In Harm's Way" document, it claims that 18 nearby residential drinking 

water wells were contaminated with boron from Midwest Generation, and that is not true. * The 

document claims that there is evidence of offsite contamination in the direction of the Smiley subdivision, 

and that is not true. * The document claims that there was an enforcement action taken by the State of 

Illinois, and that is not true. 

Because the authors of "In Harm's Way" elected not to discuss any of the contents of their story with 

Midwest Generation before publishing it, we did not have the opportunity to correct these mistakes before 

they were published. 

The Joliet 9 landfill has been subject to IEPA regulation since the 1970's. State regulations provide 

extensive requirements and protections against the outward migration of any impacted groundwater from 

the landfill. These requirements include quarterly monitoring and reporting for an extensive network of 

groundwater monitoring wells within the boundaries of the landfill for numerous constituents that are 

known to be associated with coal ash such as boron, arsenic and manganese. 

The "In Harm's Way" document ignores these requirements and the fact that Midwest Generation has 

consistently complied with them. We have acted ethically with regard to the local communities. We've 

provided new wells in a deeper aquifer when modeling showed groundwater contamination could 

potentially reach these wells, although sampling of these wells showed that none of them were 

contaminated. 

We submit that the true story of the Joliet 9 landfill is not one which supports the call for federal 

regulation of coal ash disposal sites or regulation as a hazardous waste. Rather, it shows that states can 

and do effectively regulate and monitor the operations of coal ash landfills. It also shows that in the 

operation of its Joliet landfill, Midwest Generation has consistently taken a responsible, proactive course 

of action when dealing with the community so the risks, whether real or not, are addressed

Response: The Agency acknowledges and appreciates the comment. 
377

Comment Number: TRANS-CHI-0167-1

Organization1:Environmental Integrity Project

Commenter1:Jeff Stant

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

I want to respond to some of the statements that were made today assailing the statements made by 

citizens from Joliet about the contamination at that site, first of all. We, Environmental Integrity Project, 

did a report which I'll turn in on that site as part of its "In Harm's Way" report, we examined that site. 

There is no question that there were 18 wells at that site that were contaminated with boron. They were 

offsite drinking water wells. The concentrations were between 1 and 2 parts per million in those wells. To 

Midwest Generation's credit, they either bought those people out or took them off their wells, but they 

were contaminated with boron. 

The natural background for the shallow carbon rock aquifer in that area for boron is around 0.3. The 

boron was between 1 and 2 at all of those wells. The claim they made that the offsite groundwater is not 

moving into the Smiley Subdivision is a claim that we were just repeating from the consultant of Midwest 

Energy that was simply saying that if you allow the quarries neighboring the site to be pumped down to 

the east, you'll have groundwater moving into the Smiley Subdivision within a period of time at that 1 to 

2 parts per million level. So, they are the ones, we got that from their documents. 

The enforcement action they said was never taken. Look, we can't help it if we FOIA IEPA and IEPA 

finally sends us a notice of violation dated August 31, 2009 citing 50 violations of the groundwater 

standard at the site, and then when we call them to get them to explain it further, they never respond to 

repeated phone calls. We have this NOV. And if their defense about how they're doing a good job is, hey, 

we've never taken any actions at that site so don't accuse us of having done so, I find that a funny defense 

for arguing that they're doing their job at a site where 22 offsite wells have been contaminated. 

And finally, I just point out that the boundary monitoring wells, the ones closest to the wells which are 

south and southeast of the site, not in the Smiley Subdivision but the drinking water wells to the south, 

those have arsenic in them at up to 10 times over the drinking water standard, molybdenum 72 times over 

the health standard, boron up to 5 times over the Illinois standard. So, they know they have a problem, 

Illinois EPA does, at the boundary of that site. Their documents indicate they can see there's a problem. 

It's not our fault that IEPA hasn't even seen fit to do one bit of sampling then farther offsite, and it's a 

statement that they're not doing their job there

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0017-1

Organization1:Earthjustice

Commenter1:Melanie Kay

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

This rulemaking is of monumental importance to the protection of health and the environment. How we 
378

deal with enormous volumes of coal ash will have vital implications for the future health of our 

communities, and for this reason it is imperative we properly regulate coal ash via Subtitle C. 

Today I'd like to focus on three points particularly relevant to this hearing's location in Denver. First, the 

current laws of western states governing coal ash disposal are grossly inadequate. Of the 10 states 

surrounding Colorado that generate the largest volumes of ash, seven do not require groundwater 

monitoring at coal ash surface impoundments. 

This single regulatory requirement is so important that EPA uses it as a benchmark to predict whether a 

state will adopt the proposed Subtitle D guidelines. In other words, if a state has not yet required its most 

dangerous waste dumps to monitor the underlying groundwater, then EPA assumes that these states will 

not enforce or adopt new guidelines that are not mandatory. 

Thus EPA believes that the west, with its booming coal industry, is out of luck for the Subtitle D scheme. 

And the status quo of state regulations is indeed dismal. In fact, Kansas, Montana, New Mexico, and Utah 

exempt coal ash from their solid waste regulations entirely. Consequently, landfills and waste ponds are 

not required by law in these four states to employ even the most basic safeguards such as liners, 

monitoring, corrective action, and financial assurance. 

Second, the arid west presents unique and serious problems associated with improper coal ash disposal. 

Potable groundwater is a particularly precious resource. Yet at numerous sites near western plants, 

mismanagement of ash has contaminated this scarce resource; for example, at the Ried Gardner 

Generating Plant in New Mexico, San Juan Generating Station and Four Corners Power Plant in New 

Mexico, Northeastern Station in Oklahoma, and Dave Johnston Plant in Wyoming. 

Further, fugitive dust at western coal ash dumps is a fact of life in our climate. Despite the likelihood of 

serious NAAQS violations, many western states do not require daily cover, including Arizona, North 

Dakota, New Mexico, and Oklahoma. In fact, severe fugitive dust problems are currently plaguing 

communities in Fruitland, New Mexico, and Bokoshe, Oklahoma. 

Third, in view of our proximity to the headquarters of the American Coal Ash Association, it is important 

to dispel a misconception asserted repeatedly by the ACAA, that there are no damage cases caused by 

coal ash reuse. 

We ask both EPA and the ACAA to review our report published last February, co-authored by the 

Environmental Integrity Project, that describes two sites where the use of ash as structural fill 

contaminated groundwater. 

In addition, EPA itself documented that coal ash used as fill contaminated drinking water in Pines, 

Indiana, and led, in part, to the town's designation as a federal Superfund site. 

In conclusion, nothing but federally enforceable minimum standards under Subtitle C will work for the 

west, and I therefore strongly encourage the EPA to adopt these standards

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0120-3

Organization1:

Commenter1:John Foreman

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

It's not a matter of some ponds being safe and some not. If a pond has coal ash in it, it also contains toxic 

poisons. In fact, a new report by the Environmental Integrity Project, Earthjustice, and the Sierra Club, 

released October 26, identifies 39 additional coal ash dump sites in 21 states that are contaminating 

drinking water or surface water with arsenic and heavy metals. 
379

These sites are in addition to the 67 EPA-acknowledged sites, bringing the total number to 137 in 34

states

Response: The Agency acknowledges and appreciates the comment. 

Section 9.2.1 - General comments about economic issues/concerns (not small entity/business or 

energy)

Total Number of Submissions: 151

Total Number of Comments: 186

Comment Number: TRANS-ARL-0125-1

Organization1:

Commenter1:Jonathan Barker

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 9.5.2

Comment Excerpt Text:

The EPA suggests that by segregating these applications, byproduct utilization will not be impacted. 

Approximately 43 percent of the coal ash generated is utilized in applications such as cement, road 

construction, cement replacement in kilns, cement replacement in concrete road construction, building 

schools, building houses, building everything. To say that this is not going to impact that construction 

industry, as far as I'm concerned, is a very false assumption and seems to contradict the government's 

stimulus package approach of getting our country out of this recession.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0133-1

Organization1:Illinois Energy Association

Commenter1:James Monk

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 9.3.7

Comment Excerpt Text:

Our state has a competitive electricity industry where generation and distribution entities are separated by 

function. Our local distribution electric utilities do not own or control generation facilities such as those 

which produce coal ash. However, our distribution companies do purchase electricity generated by those 

facilities and deliver that electricity to industrial, commercial and residential end users. The rates for 

distributing electricity are set by our state utility regulatory commission but the cost of the commodity 

itself is determined by the competitive market. 

We believe that regulating coal combustion residuals as hazardous waste would have an extremely 

negative effect on the cost of electricity in Illinois and our competitive marketplace. In some instances, 

generation companies would be required to spend enormous sums of money to make the infrastructure 

changes in the power plants necessary to comply with the regulation. And in other situations, on a plant 

by plant economic analysis, plants might in fact be shut down rather than make those types of 

infrastructure investments. 

The additional cost of compliance will certainly find their way into the price of electricity. In our 

competitive system, those price increases would be figured in to the procurement of electricity to supply 

our customers, either directly by the State of Illinois which procures power on behalf of what we call 

default customers, or indirectly through third party brokers who purchase power and then resell it to 
380

mostly our industrial and commercial customers. So, in this situation, we feel that there would be, if the 

ash was regulated as a hazardous waste, in our competitive system the increased cost to comply with that 

regulation would in fact have a negative economic effect on our business as electric utilities and certainly 

on the customers who have to pay the cost of that electricity.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0075-3

Organization1:

Commenter1:Jimmy Lambert

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

With over 50 percent of the power in the U.S. Generated from coal, we must maintain empowerment 

tactics, which includes economic and environmental systems. Further limitations on coal will worsen the 

economy and cause millions to lose their jobs, and we'll be faced with enormous financial burdens. 

This unnecessary course correction is without merit and poses to inflict economic hardship on the 

industry and families across the nation. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0060-3

Organization1:Trans Ash

Commenter1:Bruce Kazich

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

Let us also consider the economic impact of a Subtitle C designation. The American Coal Council 

estimates an economic impact between 6 and $11 billion. Additionally, between 130,000 and 240,000 

green jobs would be in jeopardy. With the current economic crisis and no significant recovery in sight, 

how can we justify a Subtitle C designation when Subtitle D clearly provides for the same level of 

environmental safety? 

The environment can and will be protected with strong regulations under Subtitle D. The EPA should 

develop a performance-based federal program for CCPs under RCRA D which will insure that disposal is 

safely managed while continuing to promote and expand beneficial use.

Response: The Agency acknowledges and appreciates the comment. 

Section 9.2.2.1 - Small electric utilities/electric cooperatives

Total Number of Submissions: 27

Total Number of Comments: 31
381

Comment Number: TRANS-ARL-0003-1

Organization1:National Rural Electric Cooperative Association

Commenter1:James Stine

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

On the other hand, NRECA is strongly opposed to using the Subtitle C approach. EPA can obtain a higher 

level of protection for human health and the environment without resorting to the unnecessary and 

extreme measure of regulating CCRs under records hazardous waste rules. In fact, Congress has given 

EPA guidance on how to proceed in cases like this when they have different regulatory options before 

them and both options receive essentially the same result. In cases where small businesses like co-ops are 

affected, EPA is obliged to pursue the least costly approach in order to mitigate impacts in the firms that 

can least afford them. 

Moreover, Congress made clear in enacting the Bevill amendment, under which this decision is being 

made, that EPA should avoid the Subtitle C option if at all possible. The proposed controls for CCRs are 

virtually identical -- under C and D the proposed controls -- and they would be expected to provide the 

same increased levels of protection. However, all the other requirements and consequences that would 

come with regulating coal ash under hazardous waste rules would likely cripple coal ash beneficial use 

and impose unnecessary regulatory costs on power plants, threatening jobs and increasing electricity 

rates. 

Co-op systems are relatively small, and by regulation they're not allowed to maintain large capital 

reserves. When the cost for running their businesses suddenly increase, like they would under Subtitle C, 

cooperatives must go directly to their lenders. There is no cushion to mitigate the increases and the costs 

of new loans to be shared directly by each co-op member.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0060-1

Organization1:Western Farmers Electric Cooperative

Commenter1:Gerald Butcher

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Today, Western Farmers is able to provide low cost electric power in parts -- in part due to a coal-fired 

power plant, one unit -- it's a 450 megawatt unit at Fort Towson, Oklahoma. It generates approximately 

90,000 tons of CCR annually. Over 70 percent of this is reused for road beds, concrete, dry wall, and 

other everyday products. The remaining CCR is disposed on site, which is monitored by a groundwater 

monitoring system. No leaching or environmental incidents have ever occurred in 30 years of this plant's 

operation. 

If the EPA decides to regulate CCR more stringently, there will be several consequences. First, the cost of 

compliance will increase. Second, Western Farmers sells CCR to other companies who put it to beneficial 

use. With the stigma attached to hazardous waste label, this is going to change and prohibit reuse. And 

finally, co-op systems are relatively small and are prohibited from maintaining large capital reserves. 

When the costs for running their businesses suddenly increase, like they would if CCR is more stringently 

regulated, there's little or no cushion to mitigate the increased costs, so rates or borrowing money as -- as 

necessary for these cooperatives. 
382

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0006-1

Organization1:Tri-State Generation and Transmission

Commenter1:Chris Gilbreath

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Our initial cost analysis indicates that adoption of the Subtitle C approach under EPA's proposal would 

result in initial capital costs of over $140 million and annual operating costs of $10 million for Tri-State 

facilities alone. These costs must ultimately be passed directly to our rate payers since Tri-State is a notfor-profit wholesale power provider that is owned by the consumers we serve.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0125-1

Organization1:Dixie Electric Cooperative

Commenter1:Gary Harrison

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 9.3.7

Comment Excerpt Text:

Therefore, on behalf of our members, I'd like ask that you do not make any changes that could 

significantly increase the cost of production of electricity to our members. PowerSouth's coal-fired units 

were built in 70s, in a time where electric generation was greatly needed. At a time where coal, to a large 

extent, was the only fuel available to the cooperative generation to use because of the Fuel Use Act and 

prevailing economic conditions. As a result of our dependence -- as a result of the dependency on 

generation from these coal-fired units, our cooperative, as well as other PowerSouth members, will be 

directly affected by the final CCR rule.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0034-1

Organization1:International Brotherhood of Electrical Workers

Commenter1:Michael Welsh

Commenter Type: Union

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

The IBEW represent thousands of workers in Pennsylvania and throughout the country that work at coal 

fired generation stations or have jobs directly tied to the generating stations, and to classify coal ash as a 

hazard material could put many of those jobs at risk. The increased cost that would be created due to a 

hazard material classification could force the early shut down of many of the smaller generating stations. 
383

Even though coal ash would be called special waste, it still would be listed with the hazardous material 

and there would be a reluctance to recycle coal ash.

Response: The Agency acknowledges and appreciates the comment. 

Section 9.2.2.2 - Small businesses producing beneficial use products

Total Number of Submissions: 63

Total Number of Comments: 69

Comment Number: TRANS-DEN-0016-1

Organization1:Nebraska Ash Company

Commenter1:Tex Leber

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

We are in support of regulating under Subtitle D but are opposed, of course, to and have great concern if 

it were to be regulated under Subtitle C. 

A hazardous or special waste when CCRs are disposed would cause great stigma reducing or eliminating 

the beneficial uses of our products, and we have a number of customers who have been asking questions 

about it; questions such as what happens if we have a spill of materials -- we have a load of ash coming to 

the plant and we have a spill? Are we then going to have to handle that as a hazardous material for cleanup, and what things will we have to go through in order to get that cleaned up? 

Another is, Why would I want my employees handling a material that's considered hazardous if it's 

disposed of. And another question that's come up, If concrete containing fly ash is removed, does it 

require special handling and must it be taken to a hazardous landfill? 

And another question has been -- when the concrete is first put in place and they're sawing control joints

in the concrete, what about the dust that's created from that? Are we going to have a special requirement 

because of the dust that's contained in that? 

And due to these concerns we've had a number of them that are saying if -- if it is determined that it's a 

hazardous or a special waste material, we will more than likely go ahead with using straight cement and 

not use the fly ash, which, of course, is going to be a huge problem for our company. And it's -- their 

reasoning is because of the additional liability. 

And one of the utilities that we market for that we actually -- it's about 50 percent of our product, they're 

saying if it's regulated under Subtitle C that they're not going allow the product to even go off-site; that 

due to the liabilities, they wouldn't want it scattered over, you know, a number of projects.

So that's -- that would leave our company more than likely out of business, and even though we are a 

small company, it would eliminate a number of jobs.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0023-2

Organization1:Flashfill Services

Commenter1:Doug Hernandez

Commenter Type: Beneficial User
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Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

If coal fly ash is classified as a special waste requiring disposal as a hazardous waste, I anticipate that due 

to the liability associated with such classification, it would force our suppliers and customers to 

discontinue our business relationship. 

I also anticipate that if we were able to persuade our industry to continue the usage of our product, we 

would no longer be able to provide it economically due to the significant cost associated with obtaining 

environment liability insurance. 

The stigma associated with such a classification would escalate the cost of doing business and could send 

all our potential customers in other directions. 

I truly appreciate your objective to protect the welfare of the public, and I do have financial reasons for 

my concerns. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0062-1

Organization1:Full Circle Solutions

Commenter1:Steve Critchfield

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.3.2.2

Comment Excerpt Text:

Our power-producing plants are mostly independent power producers that do not you have their own ash 

basins or landfills. Therefore, our efforts have been beneficial to local communities by saving over 10 

million cubic yards of MSW landfill space. We have also benefitted these communities by developing 

industrial properties which have provided hundreds of jobs and millions of dollars in investments. 

My comments today concern geotechnical fills. EPA has stated that they do not believe large volume 

geotechnical fills constitute beneficial reuse and they intend to prohibit such fills under either Subtitle C 

or Subtitle D of RCRA. The EPA reached this decision without giving adequate consideration to the 

issue. The EPA has not given consideration to the benefits given to communities where CCPs have been 

used safely. 

The EPA should also consider the benefit of geotechnical fills that have given to many communities 

across the country the use of CCPs and geotechnical fills, save valuable landfill space, prevent the need of 

additional borrow pits, and provides industrial and commercial property for economic development and 

job descriptions. Most of the land upon which we build could not be used for economic development. The 

earthwork required to develop these properties would otherwise be cost-prohibitive. Two examples of 

communities which have benefitted from our work are the city of Petersburg and the town of South 

Boston, both in Virginia. 

Petersburg has been economically depressed for many years. It had no available property to develop new 

industries and create jobs. Using CCPs, we constructed an in -- industrial park with approximately 150 

acres that's now available for the city to use in its economic development plans. If the city of Petersburg 

had undertaken this project, the earthwork alone would cost over $4 million. 

In South Boston, we partnered with the city and built Houghton Industrial Park. A property designated by 

the town for their industrial park was mostly rolling hills and would require over 

Response: The Agency acknowledges and appreciates the comment. 
385

Comment Number: TRANS-LVL-0007-2

Organization1:Gibbco, Inc.

Commenter1:Bruce Kazich

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Our employees have worked very hard to create and maintain a thriving business des -- despite the current 

economic crisis our country is facing. A Subtitle C designation will certainly destroy that business. The 

immediate loss of our existing customer base and the loss of our raw material supply will not allow us to 

continue a viable operation. Our seven employees will then be unemployed, placing a serious financial 

hardship on their families. That hardship will also trickle down to our 20 suppliers in the form of lost 

revenue.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0016-1

Organization1:National Ready Mixed Concrete Association

Commenter1:Terry Jones

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Our National Ready Mixed Concrete Association's President, Robert Garbini, stated on July twenty-sec --

July 22nd, 2010, before Congress; in 2008 alone, the concrete industry used 15.8 million tons of fly ash in 

the manufacturing of concrete. Our family-owned business used approximately 150,000 tons of fly ash 

during this same time period. Please note, an estimated 85% of its members are small businesses; many of 

them are family-owned companies and represent most of this industry. 

An estimated 130- to 145,000 people derive their livelihoods from the ready-mixed concrete industry. The 

last thing we need during these troubled times is overreaching federal regulations that threaten 

hardworking American jobs. Also, unemployment among small business ready-mixed concrete producers 

are already at 20%, and any increased costs will force some small businesses to shed jobs and close doors 

entirely. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0030-3

Organization1:Boral Composites

Commenter1:Greg Glander

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:
386

Boral Composites is only a small, start-up business; but it is a great example of the green-tech, advanced 

manufacturing opportunities that our economy desperately needs. On Thursday, September 9th, we 

celebrated the groundbreaking for our first commercial full scale manufacturing facility being built in 

East Spencer, North Carolina. A $13 million, 3.7 acre, Leadership in Energy and Environmental Design 

certified project that will create 25 jobs when fully operational, as well as another 20 in sales and support 

throughout the country. We are also on the forefront of building product sustainability, with our exterior 

trim product about to receive the prestigious Cradle to Cradle Certification. The decision that the EPA 

makes around CCR classification will directly impact this new green-tech business, these new job 

opportunities and the future job opportunities that this business would create. The negative stigma 

associated with a hazardous classification through Subtitle C is real and will virtually eliminate the 

demand for our products and our business overnight.

Response: The Agency acknowledges and appreciates the comment. 

Section 9.2.3 - General comments about environmental justice issues/concerns

Total Number of Submissions: 61

Total Number of Comments: 66

Comment Number: TRANS-ARL-0006-1

Organization1:

Commenter1:Michael Jackson

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

Recently, I received an e-mail from a priest who talked about illegal discharge and the leaching from a 

tanker truck. And, certainly, I believe that priest would be telling the truth. These dumping grounds are 

often in minority areas. You never see that in a rich area. We have some very wealthy counties in 

Alabama, but they picked one of the poorest areas, the Black Belt. Some areas in the Black Belt are like a 

Third World country, and you really, you can't find 10 people in that area of Uniontown that wanted that 

ash dumped there. It has one of the poorest health systems around. There's no hospital, there's no nothing. 

People talked about their water being dirty now and that type of thing, and we need help. I'm being 

bombarded now about going out to the landfill people, people that are dumping things. And as a 

prosecutor, again, I prosecute the normal criminal that you think of. But it's getting to the point where 

there needs to be stronger laws to deal with this situation. Poor people need a voice, and I've been trying 

to be that voice, but I do need help. And I'd ask EPA again to regulate this material as a hazardous waste. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0015-1

Organization1:Citizens Coal Council

Commenter1:John Wathen

Commenter Type: Advocacy Group
387

Classification: Substantive

Comment Excerpt Text:

I want to talk to you today about a duality in standard and why we need a federal regulation that controls 

this stuff in a uniform way. In Kingston, Tennessee, the disaster ash is being treated as a hazardous 

material. A truck can't drive in and out of the lot without having double-wash standard: It has to be 

washed twice. People have to wear white booties on their feet and respiratory masks in order to work in 

the area. There are dust- sampling devices all around the white affluent community of Swan Pond. 

None of these conditions exist in Perry County, Alabama. None. As a matter of fact, in Perry County, 

Alabama, where the coal ash is being brought now, there are trains that are bringing this stuff in, 105 cars 

a day. They're coming in in these sterile burrito wrappers that everybody's so proud of to keep the dust out 

of the communities as they transfer it. 

When it gets to Perry County, Alabama, they take track hose that are sitting up on top of pads built out of 

coal ash with no best management practices around them whatsoever. None. They take these track hose, 

dig it out, dump it on the ground, and then it runs into Tayloe Creek. A recent EPA inspection, the EPA 

inspector said that, and I quote, "Some of the material spilled on the ground and ran into the creek." That 

is an absolute fallacy. The material was intentionally washed into the creek. I have photographs with 

people with seven high-pressure hoses intentionally washing this mess into the creek. 

The waste stream is coal ash. In Alabama, the beneficial use says that you can use coal ash as a top cover 

in the landfill. If beneficial use means that the waste stream has to be segregated from the top cover, this 

is, in essence, giving a waiver without due process to use the waste stream for top cover. We have clouds 

of dust blowing through our community now. 

Why are the people in Kingston, Tennessee, in the affluent white community of Swan Pond treated any 

differently than the people of Perry County, Alabama? I'll tell you why. They're black, they're poor, they 

have no political worth. And what I see happening in Perry County today is nothing more than an 

environmental crime. If EPA doesn't take some action to stop this and create some kind of a uniform 

procedure for handling this, then you are nothing more than environmental criminals yourselves. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0037-2

Organization1:

Commenter1:Rebecca Kolberg

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Then there is the issue of environmental justice. From what I have read in the news media and witnessed 

with my own eyes, utility companies dump fly ash mainly in low- income and minority areas. This 

situation is doubly unfair when one considers many of these people have had to breathe the air from coalfired power plants for decades. Thanks to the Clean Air Act, emissions from stacks may soon be cleaner, 

but these disadvantaged communities now face a different, perhaps even greater threat in the form of 

more highly contaminated ash in their soil, waterways, and air.

Finally, I want to express my outrage that the EPA has chosen not to hold a public hearing in Tennessee. 

Your decision is an insult to the communities most devastated by ash disposal failure and flies in the face 

of environmental justice. On behalf of my sisters and brothers in Tennessee, I call on you to reconsider 

that decision.
388

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0073-1

Organization1:Maryland Commission on Environmental Justice and Sustainable Communities

Commenter1:Vernice Miller Travis

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

At the most recent meeting of the National Environmental Justice Advisory Council in July of which I am 

a member, U.S. EPA leadership presented a significant document to the FACA for consideration and 

comment. The document is called "Plan Environmental Justice 2014" and incorporates several 

components that are intended to move the Agency forward to develop stronger relationships with 

communities and increase the Agency's effort to improve the environmental conditions and public health 

in overburden communities. Plan EJs 2014's five critical components are incorporating environmental 

justice into rulemaking, considering environmental justice concerns in EPA's permitting process, 

accelerating compliance and enforcement initiatives, supporting community-based action programs and 

fostering administration-wide action on environmental justice. The fact that incorporating environmental 

justice into agency rulemaking is listed as the first critical priority of Plan EJ 2014, speaks volumes to this 

proceeding today and to its overall importance to achieving the Agency's and Administrator Lisa 

Jackson's goal for achieving and advancing environmental justice across the Agency. 

As Vice Chair of the Maryland Commission on Environmental Justice and Sustainable Communities, 

issues of environmental justice, ecological degradation and disproportionate human health impact in our 

state are of great concern to me. Maryland is home to multiple coal combustion waste sites that have 

contaminated drinking water wells and polluted surface waters and the environment with arsenic, 

cadmium, selenium, nickel, thallium and other toxic pollutants. In 2008 a major energy producer in our 

state entered into a multimillion-dollar settlement agreement to clean up arsenic, cadmium and other 

pollutants in drinking water wells. The State of Maryland has taken enforcement action against other 

power companies and two of its subsidiaries for Clean Water Act violations at the Faulkner Coal 

Combustion Waste Facility in Charles County, Maryland. We also have problems in Brandywine, 

Maryland, and Prince Georges County, not far from the town where I live. 

I want to speak a little bit to environmental justice. Low-income communities in Maryland need EPA to 

regulate coal ash under Subtitle C of RCRA as special waste with all the attending safeguards that apply. 

Airborne issues. Harmful clouds of airborne coal ash pollute communities and put them at great risk. The 

nation's 495 coal-fired power plants generate over 140 million tons of coal ash annually. The storage, 

disposal and transport of this ash can pose significant health hazards. However, no federal standards exist 

to require polluters to control the harmful air emissions from dump sites despite the fact that EPA itself 

has documented that coal ash contains toxic materials and those toxicants can and do escape disposal 

sites.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0080-2

Organization1:
389

Commenter1:Matt Durning

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 7.1.1

Comment Excerpt Text:

While the Arrowhead Landfill is deemed "state-of-the-art" by local politicians and landfill officials, in our 

reporting there we have witnessed conditions on the ground, which give us great cause for concern and 

we think should give you cause for concern as well. For at least the last 6 months a mountain of coal ash 

has been rising behind the tree line that has sat uncovered only a few hundred feet from residents' homes. 

This is clearly increasingly the likelihood that fugitive ash and dust will be blown off-site and could end 

up in the lungs and water sources of local residents. 

Although the landfill is equipped with a liner system which they also call state-of-the- art, we know for a 

fact that contaminated water has flowed from the landfill property into roadside ditches and creeks which 

feeds into local water sources. In this community many of these folks are on personal wells and we know 

that the homes near the landfill get their drinking water from water that is directly tied to the creeks and 

roadside ditches that are basically being fed from this contaminated water from the landfill. Most of the 

people living in this community in Perry County, Alabama, are poor and African-American and like the 

majority of Perry County, disenfranchised. They fought hard to stop the original landfill construction and 

the coal ash contract but every step of the way the system just failed them. A few local politicians have 

strong- armed the coal ash contract and squelched opposition. They have silenced the very people they 

were elected to represent. 

The people of Perry County are an example of the most vulnerable victims of weak federal coal ash 

legislation. Unfortunately, there are so many other communities like them across the U.S. suffering from 

the same thing, improper disposal of this toxic waste. Time and again states like Alabama have put 

communities at risk. Without any support from their elected officials and scant resources to effectively 

fight this dumping, they desperately need real and lasting support from the federal government and the 

only way to ensure this and ensure that they are protected is by regulating coal ash under Subtitle C.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0107-1

Organization1:EarthJustice

Commenter1:Emily Greenlee

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Over the past year, I have spent a great deal of time researching coal combustion waste and have learned 

about the dangers of coal ash stored in unlined ponds where it can contaminate groundwater with toxins 

like arsenic and lead. EPA's own data shows that coal ash can contaminate -- can increase cancer risk for 

those living nearby to over 2,000 times the EPA's acceptable cancer risk. Coal ash from an American 

company has also been blamed for a spate of skin lesions, respiratory ailments, and horrific birth defects 

in the Dominican Republic. 

Given the serious health threats posed by coal ash, it is particularly troublesome that coal ash 

impoundments are disproportionately located in low-income communities where residents are more likely 

to rely on groundwater supplies and less likely to have access to quality medical insurance and care. 

According to the EPA's own environmental justice analysis for the proposed coal ash regulations, the 

myriad risks of coal combustion waste "may have a disproportionately higher effect on low-income 
390

populations." Earthjustice's environmental justice analysis found that almost 70 percent of ash 

impoundments in the U.S. are in areas where household income is lower than the national median. I 

would like to enter into the record three maps showing poverty rates and the location of ash 

impoundments in Alabama, Louisiana, and South Carolina. Here's a copy for each of you. 

MS. DEVLIN: Oh, good, thank you. 

MS. GREENLEE: In South Carolina, about 16 percent of residents living near ash impoundments are 

below the poverty line. That number climbs to around 25 percent in Louisiana. These figures are well 

above the national average. In Alabama, a map of which can be seen on this poster, about one-fifth of 

residents living near coal ash ponds are below the poverty line. All areas that show up in blue on the map 

have poverty rates that exceed the national average. 

Most notoriously, the Arrowhead landfill in Perry County, where there's a poverty rate of about 33 

percent, has been the dumping ground for ash recovered after the TVA ash spill in Kingston, Tennessee, 

in December of '08. The ash flowing into this low-income and predominately African- American 

community at a rate of about 8,500 tons per day contains dangerous levels of arsenic, lead, and other 

heavy metals

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0141-2

Organization1:Sierra Club

Commenter1:Leslie Fields

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

The Sierra Club's Environmental Justice and Community Partnerships program has provided support to 

dozens of low-income and communities of color in their environmental justice struggles. Our goal is to 

work with low-income and communities of color to overcome these environmental assaults in their lives 

and communities. Since Administrator Jackson has designated environmental justice as one of the seven 

EPA priorities, the EPA must keep this priority as a central part of this rule making, not as an after 

thought, not as something to do at the end, not as something that we have to go back and redo again. 

In addition to regulating coal ash under Subtitle C of RCRA, EPA must also evaluate how this rule will 

impact low-income communities of color who already have disproportionate exposure to industrial toxins. 

In addition, due to its vital charge under Executive Order 12898, federal actions to address environmental 

justice in minority populations and low-income populations, EPA must take immediate steps to recognize 

and address environmental justice considerations of coal ash regulation. Thus under Subtitle C, under the 

reuse loophole there is the potential for coal ash to be used as structural fill for development and should 

be addressed. 

An example of this was in Georgia, a reuse technology company, a Georgia-based company which 

handles coal ash in cooperation with Edgecombe County's County Development began using coal ash as a 

landfill in the Fountain Industrial Park near the city of Rocky Mount, in Edgecombe County, North 

Carolina. The ash from these plants as well as coal-fired facility at the University of North Carolina 

Chapel Hill was included in that. Hurricane Floyd in 1999 -- the industrial park was turned into a trailer 

park for 370 eastern North Carolina families displaced by disaster, many from Princeville, an historical 

African American community. By the time the soil covering the fill had eroded, the coal ash had been 

exposed. 

I see my time is up. 

Response: The Agency acknowledges and appreciates the comment. 
391

Comment Number: TRANS-CHI-0050-2

Organization1:Little Village Environmental Justice Organization

Commenter1:Abigail Singer

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

I am particularly concerned with the environmental racism that continues to play a part in the siting of 

coal facilities and the storage of coal waste. It is a problem that coal ash being dredged from the TVA 

spill site was sent to a high-poverty and largely African-American community in Alabama. It is similarly 

unacceptable that Chicago's Mexican-American communities bear the brunt of the pollution from 

Midwest Gen's Fisk and Crawford coal plants, and that poor white communities in rural Appalachia are 

having their health, homes, mountains and livelihoods decimated by mountaintop removal. 

Throughout the entire coal life cycle, from mining to transportation to burning to waste storage, lowincome communities and communities of color are exposed to disproportionate levels of this toxic 

pollution.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0092-2

Organization1:Protestants for the Common Good

Commenter1:Courtney Eccles

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Other Sections: 6.1.1 6.1.2

Comment Excerpt Text:

We're particularly concerned about coal ash because we consider it to be an environmental issue, a health 

issue and a justice issue. Coal ash sites can contaminate water sources with dangerously high levels of 

arsenic, selenium, mercury, cadmium and many other toxins. And these toxins endanger the plants and 

animals located in those waterways, not to mention contaminate drinking water. For individuals that live 

near or around dumping sites, there are grave health concerns. According to an EPA risk assessment, 

living near a coal ash site is more dangerous than smoking a pack of cigarettes each day. The risk of 

getting cancer can be as high as 1 in 50 individuals, and all of these health concerns are even more grave 

for young children and infants. 

Furthermore, those families or individuals who live near coal ash sites probably have no idea what the 

risks are. Many of them may not even know that they live near a site. And for those that do, they may 

very well not have the economic ability to move elsewhere. And we consider that a huge justice issue

Response: The Agency acknowledges and appreciates the comment. 

.
392

Comment Number: TRANS-CHI-0147-1

Organization1:Little Village Environmental Justice Organization

Commenter1:Kimberly Wasserman-Nieto

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

I'd like to note that I'm also a council member on the EPA's National Environmental Justice Advisory 

Council though I am not speaking in my capacity as a NEJAC member today. I am speaking as the 

executive director of the Little Village Environmental Justice Organization, and as a member of the Little 

Village community on the southwest side of Chicago. 

Why I'm here today is because our community sits in the shadow of one of two coal power plants within 

the city limits of Chicago. For the last eight years, we have fought to clean up these outdated plants, and 

in our struggle we have learned a lot about coal and its byproducts. From what we have verified with 

other partner organizations as of yesterday is that the Illinois EPA does not know where the coal ash of 

the two plants in our communities goes. All they know and all we know is that it's shipped offsite. 

This means that none of our regulatory agencies know where all this stuff goes. This is a very scary 

thought, and even scarier when accidents like the largest industrial waste spill at the Kingston Power 

Plant in Rome County Tennessee takes place. We are fortunate in Chicago not to have dealt with an issue 

like that. But not knowing how, when and where the ash from our plants is being stored is even worse to a 

certain extent, especially given cases from around the United States of coal combustion waste sites 

contaminating drinking water and giving off harmful clouds of airborne coal ash. 

The myth with this rule is the belief that you can beneficially reuse toxic ash and fill cement asphalt and 

with this reuse the coal ash doesn't need to be regulated under RCRA. However, for all the reasons 

mentioned above, we need rules keeping track of this toxic waste. Our communities and the EPA have 

spent way too long responding to spills and accidents. The reality is coal ash is a hazardous substance 

which is why this is not a green industry just because it recycles and reuses. 

Communities and the environment cannot afford to have this hazardous substance green-washed. There is 

a link between adverse impacts on EJ communities and proposed rules that would only increase the 

disproportionate impact of pollution sources on environment justice and low-income communities. In 

NEJAC, we were tasked to plan how to incorporate environmental justice early and often into the EPA 

rulemaking processes. However, rolling out rule after rule will not stem environmental justice 

communities' exposures to pollution sources or provide enhanced protection from pollution. 

For these reasons and so many more, coal ash must be regulated under RCRA Subtitle C as special waste 

by the USEPA with all attenuated safeguards that it requires. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0016-1

Organization1:Working People For Fair Energy

Commenter1:Charles Steele, Jr.

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

what I'm concerned about is the fact that we're not talking about poor people. We're not talking about 

affordability. There are over 100 million poor people in this country. (inaudible) can barely survive on a 
393

day-to-day basis. But most of them are not; they're just getting by. And I would love to see one of these 

meetings over in a black church. Many of our people are afraid to come out to the Holiday Inn -- that 

some people call a Hole-iday Inn. 

Because of the fact that there's a cultural difference in terms of where we are in the history of this country. 

So the twist that I'm bringing is that we must be more intrusive, and slow it down. We all believe in clean 

air, clean water and a healthy environment, for all of us. But somebody must pay for this. And the brunt 

of these expenses will be upon minorities and poor people due to the fact that they can't afford what they 

have today. 75 to 80 percent, if they are fortunate enough to work, of their wages and their salary would 

be going toward electricity. 

Over half of the nation depends upon coal. All I'm saying is that let's slow it down and let's do it right. Is 

it affordable? Because when you're dead, you're dead. I don't care if it's about the environment or the lack 

of not having a job or someone killing you at the local convenience store because they saw you with a few 

dollars. So is it affordable? Are we representing the interests of poor people? I don't see any AfricanAmericans in here, no more than two or three. And two of them just left. So there's two of us, brother. 

So the point being, they don't even know about this issue. They don't even know about the concerns that 

are affecting us because they don't even have time to pay attention to it. Because they are too busy trying 

to make a living.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0047-1

Organization1:Tennessee Interfaith Power and Light

Commenter1:Douglas Hunt

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

I'm pleased to be here, to call for implementing Option C as a first and critical step in meeting our moral 

and ethical responsibilities to protect people and our planet.

Tennessee did not wait for EPA to give us a hearing. We went ahead and held a people's hearing on 

September 22, the transcript of which has been forwarded, and you will see evidence of the effect of the 

Kingston ash spill on those people's lives. It brought misery and injustice to the people of Will County 

and surrounding communities and now the people of Perry County, Alabama, where 30 percent of 

residents live below the poverty line, and a majority of that African-American, are receiving the remnants 

of the toxic coal ash spreading misery and injustice and the morality that surround the disaster even 

further.

Tennessee Interfaith Power and Light and the rest of our Interfaith Power and Lights are very concerned 

about issues of environmental, energy, and climate justice. Can it possibly be moral to continue to allow 

the transportation, disposal and storage of material that contains mercury, arsenic and a whole laundry list 

of toxic substances without the kind of monitoring and control provided in Option C? Can it possibly be 

moral or just to make the decision not to declare and regulate coal ash as the kind of substance it truly is? 

To fail to adopt Option C will almost certainly make such future tragedies inevitable.

A word about stigma. Those of us here from Muslim, Jewish and Christian backgrounds know about 

stigma from our scriptural teachings. Stigma was not attached to Cain because he deprived people of an 

economic opportunity, or lost jobs. And jobs are critically important in these times. But like Cain, if coal 

ash is to bear a stigma, it will be a stigma from lives lost, lives ruined, and the planet poisoned.

The solution to all of these problems ultimately is to stop burning coal. But that's not going to happen --

that's not going to happen immediately. But Option C is a first and critical step in meeting our moral and 
394

ethical obligations to protect people and our planet from any more coal calamities like we experienced in 

Kingston.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0108-1

Organization1:Richland County Council

Commenter1:Calvin Washington

Commenter Type: Local Government

Classification: Substantive

Comment Excerpt Text:

My community has a national park; the only national park in South Carolina, the Congaree National Park. 

The land is owned by -- the land mass is 80-percent owned by African-Americans. We have low-income 

folks. We have two major rivers that flow in my district that are contaminated. Nobody can fish in it. We 

have mercury levels, we have arsenic levels that are very high. 

I have three Fortune 500 companies in my district; major international companies. But the economy of 

my district is low. Those jobs are going somewhere else; other counties. They do not want to stay here. 

People do not want to live in that area, but us. 

Our concern about this plant putting an ash dump -- because right now, I have a Superfund site from a 

nuclear waste facility. I have a facility that creates the barrage for nuclear plants. I have a paper plant, and 

now I've got an ash plant -- dump. They are dumping in our river right now. DHEC, which I thought was 

an agency that supported the community, they pretty much ordered these companies to do what they want 

in these communities. 

I'm asking EPA to make sure they put regulations in place for these ash dumps to stop dumping into our 

rivers. Right now, we cannot even build economy or recreate within our rivers. We have over 300,000 

people that come to visit our park; our national park. We cannot open restaurants because of our 

groundwater contamination issues. We just got a grant -- water into one area, but to expand it out it costs 

even more. And that's the burden on the county that I cannot put on the county right now. 

I'm asking DHEC -- I mean EPA to really look at the regulations that DHEC have allowed to get to this 

point with this coal ash plant. I implore you to come down into my area. I invite you. Matter of fact, I'll 

make a full invitation for you all to come to look at the faces of those folks -- they would have loved to 

have been here, but a lot of folks have to work. They can't be here, and I'm here to represent those folks. 

And I implore you to come down here and visit with us.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0138-2

Organization1:South Carolina Chapter of Sierra Club

Commenter1:Susan Corbett

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:
395

We also were at the -- Congressman Clyburn hosted an EPA hearing in Columbia that Lisa Jackson was 

at. The same folks that were at the coal ash pond showed up at that hearing and spoke out again. Seems to 

be an environmental justice issue. 

A lot of these leaking sites are in African- American communities and communities that are 

disenfranchised with public input, and they are sharing more share of the burden on these low-income 

areas.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0094-2

Organization1:

Commenter1:Lev Guter

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

And the third point that I'd like to make is, this is an environmental justice issue. Because of Subtitle D, 

my understanding is that a large portion would be regulated by citizen suits. And the poor communities, a 

lot of them are communities of color, they don't have the resources to hire lawyers to enforce safe 

drinking water. And that is something that they should be entitled to. They shouldn't have to fight for 

clean drinking water. That is something that the federal government should make sure all citizens have.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0015-1

Organization1:Colorado Interfaith Power and Light

Commenter1:Betty Goebel

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Comment Excerpt Text:

In addition to concern for the environment, faith traditions also share a concern for the poor. Today I 

speak for the poor who will surely be under-represented here.

The EPA's own data shows that over half of the coal ash storage locations are in areas that are 

predominantly low income. Low income areas have long been the dumping ground for toxic waste, and 

the poor have been disproportionately affected by the health problems.

Subtitle D lacks any meaningful enforcement mechanism. The burden is on the citizen to bring suit when 

the industry has not adhered to recommended standards. This puts an unacceptable burden on low-income 

victims of coal ash health problems. These are the people who are least likely to be able to mount a 

serious challenge to the industry.

Low-income people are often less well educated, have less access to PC and Internet technology, less 

knowledge of how to access and interpret environmental data, and the least likely to have resources for a 

time-confusing legal battle.

When you are working two to three jobs to put food on the table, it's hard to muster the energy you need 

to organize an effective challenge to a powerful industry, even when you know that something is making 
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you, your children, and your neighbors sick.

If the industry is looking for a group of people least likely to challenge them, they have the right 

population when their storage sites are in low- income areas. There are instances of contamination, not 

just Kingston, not just Colstrip. This industry has been unable to produce (sic) itself and neither have the 

state governments.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0025-1

Organization1:Sunflower Electric Power Corporation

Commenter1:Paul Reynolds

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 9.3.7

Comment Excerpt Text:

Of even greater significance to us and the other Kansas utilities is a current Kansas state law that prohibits 

landfill disposal of any RCRA hazardous waste. 

If CCRs are regulated as a hazardous waste, even if EPA uses the term "special waste," it is the KDHE's 

interpretation that current state law would prohibit landfill disposal and all current permitted CCR 

disposal activities would have to cease operation, and these wastes would have to be transported out of

state for disposal and could end up affecting a low- income area nearby. The costs and other 

environmental impacts of such a change in CCR disposal practice is staggering.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0030-1

Organization1:Colorado Interfaith Power and Light

Commenter1:Joy Jamison

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Other Sections: 4.2.1

Comment Excerpt Text:

This is a moral and eco-justice issue. Coal ash disproportionately affects the poor. Right here in Denver in 

the Elyria neighborhood next to Xcel's Cherokee plant, Xcel parks railroad cars full of coal ash right 

across the street from private housing.

According to the EPA's own statistics, 52 percent of coal ash sites have higher than average low-income 

families and 28 percent have higher than average minority populations. If coal ash is not regulated, the 

only recourse for individuals in these communities is citizen suits. No one there can afford to sue.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0030-3

Organization1:Colorado Interfaith Power and Light

Commenter1:Joy Jamison

Commenter Type: Community/Religious/Social Organization

Classification: Substantive
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Comment Excerpt Text:

I have heard comments today about the costs of Subtitle C. In fact, if you do proceed with Subtitle C, the 

electricity costs will increase less than 1 percent.

If the misuse of coal ash is a moral issue, a bigger one is the continued use of coal itself. In 2006 coal 

provided 27 percent of the CO2 spewing into the atmosphere and helping to accelerate climate change.

Then there are the downstream costs of burning coal that are not paid by industry; things like the cost of 

air pollution, greenhouse gases, water use, water quality, land use, energy security, coal combustion and 

mining wastes, and the accompanying health effects.

These are paid for by those individuals primarily with low income, little education, and little influence. 

Another moral and eco-justice issue.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0086-1

Organization1:Eco-Justice Ministries

Commenter1:Peter Sawtell

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Comment Excerpt Text:

My support for proposal C is grounded in two closely related moral principles: Environmental justice and 

eco-justice. 

Environmental justice does not allow disproportionate impacts from pollution on communities of color or 

that are low income. Those unequal environmental impacts were first documented in a 1987 study from 

the United Church of Christ, Toxic Wastes and Race in the United States. Church leaders are among those 

that have decried the immoral practice of dumping hazardous substances in disempowered communities. 

In the case of toxic materials found in coal ash, which can cause neurologic disruption and cancer, the 

unjust damage to individual lives, family, and communities is long-lasting and utterly unacceptable. 

Last spring's detailed coal ash report from Earthjustice documents the environmental justice factors of 

that pollution. A majority of the 31 sites in their report are located in low-income communities. 

It is imperative that the strong provisions of Subtitle C be implemented to address environmental justice 

impacts. 

I also support Subtitle C because of the ethical principal at the heart of my agency's name, Eco-Justice. 

Eco-Justice seeks the well-being of all humankind on a thriving earth. It holds together commitments to 

racial and economic justice and ecological health. 

From the perspective of Eco-Justice, toxic waste is a moral problem even if the impacts are not 

disproportionate. It is wrong to poison anybody. 

From the perspective of Eco-Justice, the issue of toxic coal ash is not only a human problem. The welldocumented impacts on wildlife and ecological systems are also a matter of moral concern. 

From the perspective of Eco-Justice, the intergenerational impacts of coal ash are important. Far into the 

future heavy metals will persist in groundwater and stream sediments if coal ash is not contain under 

rigorous standards and enforcement. 

Environmental justice demands protection for people among us who have so often been oppressed, 

excluded, and disempowered. Eco-Justice demands the safe storage of coal ash on behalf of all God's 

creations; humans and other than human, now and into the future. 

My agency's expertise is moral witness about matters of ecological health and social justice. The weak 

option under Subtitle D is ethically deficient in preventing and protecting communities from the hazards 

of coal ash. 
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Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0101-1

Organization1:San Juan Citizens Alliance

Commenter1:Mike Eisenfel

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

Our organization strongly urges EPA to classify CCW as a hazardous waste stream to fully evaluate 

contamination of CCW and treat it as the hazardous waste it is and protect our communities from this 

harmful dumping process. 

Our region is relied on for energy export. We need EPA to take firm action to regulate the storage of 

CCW and recognize that so-called clean coal technologies and control technologies to reduce air pollution 

when burning coal will result in even more toxic CCW being generated. 

We ask EPA to initiate tribal consultations in our region on the CCW problem, including environmental 

justice oversight responsibilities. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0171-1

Organization1:

Commenter1:William Smith

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

My name is William Smith. I'm from Murfreesboro, Tennessee. But I have a lot of family in the 

Appalachian area, in east Tennessee and Virginia and North Carolina and South Carolina, and their water 

supply, as the years go by is getting more and more toxic. 

As has been made very obvious by the Harriman County spill, current regulation on coal ash storage is 

not enough. We need tighter regulation. 

But I see a worse problem. And I would even go as far as to call it a crime. And that is an environmental 

justice problem. Nearly half of the high azard -- high hazard ash ponds in the southeast are described by 

the EPA as high hazard are in low-income areas. 

Another environmental crime I see is that the ash from the Harriman County spill is being moved to Per --

Perry County, Alabama, which is another low income and predominantly African-American community. 

The water in that community is so full of arsenic that it contains 80 times the safe amount for drinking 

water. Cancer, COPD, other respiratory illnesses, neurological damage, reproductive problems are the 

legacy that we're leaving our children right now. I'm a young person and I care about my future. I don't 

want to leave that legacy. 

So support Subtitle C. 

Response: The Agency acknowledges and appreciates the comment. 
399

Comment Number: TRANS-LVL-0017-1

Organization1:Presbyterian Church (U.S.A.)

Commenter1:Katie Holmes

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Comment Excerpt Text:

General Assembly policies have consistently affirmed that as people of faith, we are to seek 

environmental justice for low income communities that are dishen -- disappor -- disproportionately 

burdened by environmental hazards. 

We see this connection clearly in the case of coal ash. Not only does coal ash threaten the health of 

communities around the country, it disproportionately affects low income communities and communities 

of color. More than 50% of coal ash cites around the country are in low income neighborhoods. And the 

coal ash cleaned up after the 2008 spill in Kingston, Tennessee, was shipped to a predominantly low 

income, predominantly African-American community in Alabama. 

The issue of coal ash is close to home for Louisville communities. Residents of the Riverside Gardens 

neighborhood live in the shadow of the coal ash disposal sites from the Cane Run power plant. 

Community organizers in Riverside Gardens report high incidences of cancer and other diseases that have 

been connected to coal ash contaminants. With the Cane Run plant applying to expand its coal ash pond, 

federal regulations on coal ash would help protect this vulnerable neighborhood. 

Ultimately, our society needs to turn to a clean energy economy and find solutions to the selection of 

hazardous waste sites that are just. In the meantime, it is imperative that we provide greater protection 

from hazardous coal ash for all people, especially the most vulnerable populations that live closest to 

these sites.

Response: The Agency acknowledges and appreciates the comment. 

Section 9.3.2 - Incorrect cost assumptions

Total Number of Submissions: 32

Total Number of Comments: 53

Comment Number: TRANS-DAL-0065-4

Organization1:Texas Coal Ash Utilization Group

Commenter1:Mike Silvertooth

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

In regards to the economic assessment, last, in EPA's economic assessment, EPA determined that CCP 

utilization would actually increase under the RCRA C proposal option. The assessment by EPA assumes 

utilities will be motivated to have CCP utilized rather than go to their onsite landfills due to increased 

cost. This thought by EPA assumes that there is no cap on the amount of tons that can be utilized, 

especially in concrete. EPA did not consider the fact that there are technical limitations to the utilization 

of CCPs. 

TxDOT has limitations at 35 percent maximum replacement, for example. This is a significant oversight 

by EPA in their assessment and needs to be reconsidered. The fact is, there is a cap on what can be 

utilized; and that is dependent on the annual concrete market and a percentage replacement limitations. 
400

I encourage the EPA to assess this item -- of increased utilization that has been publicly stated.

Response: The Agency acknowledges and appreciates the comment. 

Section 9.3.7 - Costs to specific groups (industries, states, tribes, small businesses, etc.)

Total Number of Submissions: 209

Total Number of Comments: 277

Comment Number: TRANS-ARL-0062-1

Organization1:Old Dominion Electric Cooperative

Commenter1:David Smith

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

I am here today to state that ODEC favors the development of federal regulations for CCRs under RCRA 

Subtitle D prime nonhazardous waste program. However, we feel strongly that regulating CCRs as a 

hazardous waste under RCRA's Subtitle C program would impose unnecessary regulations and costs on 

our current and proposed coal-fire facilities, would threaten jobs, increase electric rates and have a large 

effect on the beneficial use industry. EPA is obligated to pursue the least-cost approach in order to 

mitigate impacts on the firms that can least afford them. Since the proposed controls for CCRs are 

virtually identical under C and D, in approaches that would be expected to provide the same increased 

levels of protection, Subtitle D should be adopted. 

However, the regulations of CCRs as a hazardous waste under RCRA Subtitle C would introduce many 

unnecessary measures such as potentially requiring each generating facility to acquire and operate storage 

facilities with TSD permits. The Clover Power Station currently utilizes a dry landfill system for storage 

and disposal of CCRs that is lined and monitored with groundwater monitoring wells and will be capped 

appropriately when completed in a fashion very similar to what's outlined in Option D. We feel that this is 

an effective means for ensuring that CCRs are disposed of in a manner safe to the environment and do not 

feel there would be any great useful gains through the implementation of Option C.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0095-2

Organization1:Virginia Manufacturers Association

Commenter1:Joe Croce

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Reclassifications of CCBs as hazardous waste under RCRA Subtitle C would increase the price of 

electricity by increasing compliance costs for power generators. Stricter federal regulations would also 

force coal-fired power and industrial plants or manufacturers plants to handle and store massive quantities 

of coal byproducts as hazardous waste that would increase the costs of operating the power generation. 

Response: The Agency acknowledges and appreciates the comment. 
401

Comment Number: TRANS-ARL-0104-2

Organization1:National Association of Manufacturers

Commenter1:Alicia Oman

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Regulating CCRs under Subtitle C would place unworkable facility and operational requirements on 

utilities and other generators of CCRs, and create an immediate and critical shortfall in hazardous waste 

disposal capacity. This increased regulatory burden is likely to result in higher energy costs for all 

manufacturers. 

Manufacturers are especially vulnerable to high energy costs, and a noticeable increase in the price of 

energy will derail any hope of a robust economic recovery, preventing Americans from getting back to 

work. Reclassification of CCRs as a hazardous waste is likely to increase transportation costs both for 

power generators and manufacturers who generate their own CCRs by channeling materials to sites that 

are designated to handle hazardous waste. One food processing facility that generates CCRs estimates 

their cost for transportation and disposal could increase from $120,000 to approximately $20 million per 

year. 

In addition, manufacturers are concerned that the Subtitle C option will result in the loss of important 

high-paying jobs in the CCR beneficial reuse market. Federal policy should encourage the beneficial 

reuse of industrial byproducts and other manufacturing initiatives that make economic and environmental 

sense.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0090-3

Organization1:Indiana Energy Association

Commenter1:Stan Pinegar

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The Subtitle C option would drastically increase our members' operating costs, raising the cost of power 

to Indiana households, industry and commercial operations. This isn't just the message from the Indiana 

Energy Association. Our Indiana Utility Regulatory Commission as well as our Office of Consumer 

Counselor have both weighed in, advocating against a Subtitle C determination.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0124-1

Organization1:City Water, Light & Power, Springfield, IL

Commenter1:Christine Zeman

Commenter Type: Electric Utility Company
402

Classification: Substantive

Comment Excerpt Text:

At the request of the League of Cities and the Conference of Mayors, CWLP estimated that under current 

prices, the cost to dispose of our ash as hazardous would increase by $8 to $20 million annually, which 

for our small municipality is an exorbitant cost that would be passed directly onto our customers, the 

citizens of Springfield and businesses when they can least afford it. That doesn't include the increased 

cost of disposal that is likely to arise because of the increased competition for disposal capacity. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0133-1

Organization1:Illinois Energy Association

Commenter1:James Monk

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 9.2.1

Comment Excerpt Text:

Our state has a competitive electricity industry where generation and distribution entities are separated by 

function. Our local distribution electric utilities do not own or control generation facilities such as those 

which produce coal ash. However, our distribution companies do purchase electricity generated by those 

facilities and deliver that electricity to industrial, commercial and residential end users. The rates for 

distributing electricity are set by our state utility regulatory commission but the cost of the commodity 

itself is determined by the competitive market. 

We believe that regulating coal combustion residuals as hazardous waste would have an extremely 

negative effect on the cost of electricity in Illinois and our competitive marketplace. In some instances, 

generation companies would be required to spend enormous sums of money to make the infrastructure 

changes in the power plants necessary to comply with the regulation. And in other situations, on a plant 

by plant economic analysis, plants might in fact be shut down rather than make those types of 

infrastructure investments. 

The additional cost of compliance will certainly find their way into the price of electricity. In our 

competitive system, those price increases would be figured in to the procurement of electricity to supply 

our customers, either directly by the State of Illinois which procures power on behalf of what we call 

default customers, or indirectly through third party brokers who purchase power and then resell it to 

mostly our industrial and commercial customers. So, in this situation, we feel that there would be, if the 

ash was regulated as a hazardous waste, in our competitive system the increased cost to comply with that 

regulation would in fact have a negative economic effect on our business as electric utilities and certainly 

on the customers who have to pay the cost of that electricity.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0040-1

Organization1:Florida Electric Power Coordinating Group

Commenter1:Carl Eldred

Commenter Type: Trade Association

Classification: Substantive
403

Comment Excerpt Text:

The FCG understands that recent events have caused the EPA to revisit its previous regulatory 

determinations for CCRs. However, the proposed Subtitle C regulations are not an appropriate response. 

In Florida, hazardous waste landfills are prohibited. Additionally, industrial byproducts such as CCRs 

may not be beneficially used if they are regulated as a hazardous waste. Consequently, if regulated under 

Subtitle C, CCRs generated in Florida will have to be disposed of or beneficially used out of state. 

It's conservatively estimated that over 1.1 million tons of CCRs are disposed of each year in Florida. 

Absent legislative amendment, Subtitle C regulation would require FCG members to dispose of these 

CCRs at a hazardous waste landfill in Emelle, Alabama which is located over 600 miles away from many 

of the FCG member facilities. 

The cost of disposal alone would exceed $280 million. Not to mention the cost of sending over 160 trucks 

a day on a 1200 mile round trip to Alabama. 

The amount of CCRs disposed of in Alabama annually may actually exceed 3.6 million tons if FCG 

members are unable to find out-of-state opportunities for the continued beneficial use of the estimated 2.5 

million tons of CCRs that are currently beneficially used in Florida. 

A combination of Subtitle C regulations and the state prohibitions on disposal and beneficial use of 

hazardous waste will cripple the generation of electric power in Florida, and will greatly increase the cost 

of power production for FCG customers.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0116-2

Organization1:North Carolina Chamber of Commerce

Commenter1:John Goodman

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Additionally, we also see the same impacts on the electricity industry. A hazardous ruling will require the 

early retirement of coal plants and the coinciding jobs, leaving industrial, commercial and residential 

electric customers footing the bill. 

Here are some of the staggering costs developed by the EOP group in 2000, a decade ago, for electric 

utilities to comply with Subtitle C regulations. And these costs are being updated now. If CCRs are 

regulated as a hazardous waste, the cost is estimated at $13.8 billion annually. The cost of mandatory 

closure of CCR surface impoundments would be $39 billion annually. Whether coal ash is regulated as 

hazardous or not hazardous waste. The cost increases have to be passed to consumers who will likely see 

hefty rate increases. Those facilities where the cost investment is too high will be shut down, while 

replacement capacity will be needed to maintain capacity margins required by public utility commissions 

who serve electric customers. 

In effect, you're paying twice; once for retiring units, and again for replacing electricity. You need to fill 

the gap. 

If replacement capacity can't be arranged quickly enough we're looking at serious liability concerns that 

come within the potential national shortfall of electricity to meet growing customer demand. And while 

wind and solar can be part of that solution, they can't produce enough or store enough to fill that void. 

Only one third of at-risk capacity needs to be replaced. The gross replacement cost will be $12-$37 billion 

and this is in addition to $39 billion needed to close the surface impoundments. 

So in conclusion, a Subtitle C hazardous designation will have far-reaching effects on American jobs, the 

economy and electrical reliability across the nation. That's a high price to pay for the increased 
404

requirements in Subtitle D would accomplish added environmental protection without the cost. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0119-3

Organization1:SCANA Corporation

Commenter1:Tom Effinger

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Obviously the collective costs involved with managing CCRs as hazardous waste are almost incalculable 

and will certainly represent an enormous financial burden for the customers of our nation's utilities at a 

time when they can ill afford it.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0022-2

Organization1:San Miguel Electric Cooperative

Commenter1:Mike Kezar

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

San Miguel is opposed to using the Subtitle C approach. Proposed controls for CCRs are virtually 

identical under the C and D approaches, and they would be expected to provide the same levels of 

protection. However, regulating coal ash under the hazardous waste rules, would impose unnecessary 

regulatory costs on power plants like San Miguel, threatening jobs and increasing electricity rates. 

As previously stated, San Miguel's member owners, the predominantly rural end of the line users of 

electricity, bear the cost of owning and operating the facilities. And any increase in a regulatory cost will 

go directly to the rates they pay for electricity.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0040-1

Organization1:Association of Electric Companies of Texas

Commenter1:Walt Baum

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

I am testifying today on behalf of the Association of Electric Companies of Texas, or AECT. We are an 

industry trade association representing the different electric companies in the state. Our AECT members 

have a general interest in EPA's coal combustion residuals proposed rule as our members own and operate 

electric-generating plants that are impacted by this rule. I'm here today representing our members that 
405

own coal plants in Texas.

Texas contains the largest electric market in the country. We generate 80 percent more electricity here 

than in any other state, and we're different from other states because about 80 percent of our electric load 

is contained within ERCOT, our own intrastate electric grid, and we have very limited connection with 

the Eastern and the Western interconnects. 

We truly are an island, and we're responsible for generating the electricity that our growing population 

needs, and we aim to maintain a very diverse fuel mix, using coal, natural gas, nuclear and wind, where 

we lead the country in renewables, to allow the state to hedge the benefits and challenges inherent in each 

of these fuel sources. 

Baseload coal generation accounts for about 38 percent of the electricity generated in Texas. According to 

studies done by the noted economist, Ray Perryman, coal production and use in Texas creates over 33,000 

jobs and contributes over $10.5 billion to the Texas economy. 

Regulation of CCRs as a hazardous material potentially would threaten electric liability and it would 

increase electricity prices for consumers and businesses due to the significant compliance costs on 

generators. 

In some cases, these costs would be sufficiently high to render certain fuels, such as Texas lignite, 

uneconomic, and result in power plant and/or mine closures that would cost Texas jobs and tax revenue at 

a time when both are in short supply and at a time when Texas, unlike many regions of the country, is 

experiencing record electricity demand and sustained growth.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0041-4

Organization1:Texas Concrete Pipe Association

Commenter1:Bob Folser

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

We believe fly ash storage by concrete producers would be affected. We anticipate that concrete 

producers will be faced with issues such as added expenses to install special silos and handling practices 

to store and use fly ash in concrete

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0044-1

Organization1:CPS Energy

Commenter1:Mike Mallone

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 9.5.2

Comment Excerpt Text:

I work for CPS Energy in San Antonio. We are municipally owned. We're the largest municipally owned 

power electric and gas company in the United States. We recycle over 97 percent of our coal residuals. 

We recycled approximately over 300,000 tons last year. Essentially that amounts to about 300,000 cubic 

yards of material diverted from landfills. Since the early '90s, we recycled over 6 million tons of CCRs. 

Recycling CCRs is a beneficial use. It lowers the cost to rate payers. We anticipate that this could cost up 
406

to over $100 million in annual transportation to local landfills. CPS Energy expects to generate 

approximately 600,000 cubic yards of CCRs per year over the next 20 years, totaling 25 million cubic 

yards over the next 50 years. 

CPS Energy believes that a Subtitle C designation would be counterproductive by increasing the amount 

of CCRs landfilled and impounded nationally because of the stigma that will be placed on CCRs. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0076-2

Organization1:Luminant

Commenter1:Julie Prejean

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Finally, regulations of CCRs as a hazardous waste would also increase compliance costs to the point that 

they could render certain fuels, such as Texas lignite, uneconomic. EPRI estimates that each regulation 

would be so uneconomical that it could result in a closure of coal-fueled power plants that are needed to 

produce affordable and reliable electricity to a state that has an increasing demand for electricity as 

witnessed this summer with new record consumptions

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0081-1

Organization1:Luminant

Commenter1:Barry Boswell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Today, I speak for thousands of Luminant employees across Texas to say that we genuinely care about 

our communities' and employees' safety and our legacy of environmental stewardship. We take personal 

responsibility for running our plants and processes in the absolute best way possible. We are committed to 

complying with all relevant rules, regulations, and laws governing our generating plants. 

Finally, we hold the highest standards to not only protect the environment, but also the public's health. 

We live in these communities, as do our families, our neighbors, and our friends. 

We have been committed partners to our surrounding communities and counties for decades. We are an 

important part of the local communities, with jobs and local spending. In 2009 alone, our lignite plants 

and mines paid nearly $64 million in tax contributions to surrounding counties and school districts, which 

have been used to construct modern public facilities and provide needed services. 

As one of the largest power generators in the state, we are acutely aware of our environmental 

responsibilities. My company has spent hundreds of millions of dollars voluntarily on new environmental 

controls across our fleet. 

When it comes to coal combustion by-products, we are just as committed to doing the right thing for the 

state. We are in full compliance with the Texas Commission on Environmental Quality's comprehensive 
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coal combustion residual handling and disposal regulations. We make it a priority to inspect and maintain 

our CCR landfills at all facilities through routine observations and detailed surface impoundment 

inspections. All of this is a responsibility we take very seriously. 

Unnecessary additional regulations of coal ash as a hazardous waste would have a significant impact on 

countless businesses and employees who depend on these products for their commerce and livelihood. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0092-2

Organization1:Office of the Texas Comptroller of Public Accounts

Commenter1:David Schanbacher

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

The previously recycled coal ash must now be disposed; the very activity that EPA's Web site says is 

causing the environmental concerns. The coal ash waste will soon exceed the capacity of current disposal 

resources and will likely cause operational regulatory issues for coal-fired power plants. These power 

plants generate over 37 percent of Texas' electricity. Any -- any disruption to this reliable baseline power 

could raise electricity prices, jeopardize the electric grid, and further strain already struggling state 

economies. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0025-1

Organization1:Sunflower Electric Power Corporation

Commenter1:Paul Reynolds

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 9.2.3

Comment Excerpt Text:

Of even greater significance to us and the other Kansas utilities is a current Kansas state law that prohibits 

landfill disposal of any RCRA hazardous waste. 

If CCRs are regulated as a hazardous waste, even if EPA uses the term "special waste," it is the KDHE's 

interpretation that current state law would prohibit landfill disposal and all current permitted CCR 

disposal activities would have to cease operation, and these wastes would have to be transported out of 

state for disposal and could end up affecting a low- income area nearby. The costs and other 

environmental impacts of such a change in CCR disposal practice is staggering. 

Response: The Agency acknowledges and appreciates the comment. 
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Comment Number: TRANS-DEN-0026-1

Organization1:Arizona Electric Power Cooperative

Commenter1:Patrick Ledger

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Imposing a new regulatory regime under Subtitle C that would require rural rate payers, already suffering 

disproportionately from the effects of the recession, to pay millions more to replace or abandon a remote 

lined impoundment facility that operates in compliance with effective standards is unreasonable. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0093-1

Organization1:PPL Montana

Commenter1:Steve Christian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Without beneficial-use option, we will be forced to dispose of all CCRs. 

The problem is that Montana has no permanent -- permitted commercial Subtitle C landfills, and that 

leaves us with only two options; try to permit a hazardous landfill at our site or find a Subtitle C landfill 

off-site which would be out of state. 

In addition, Subtitle C regulation may require Colstrip to completely change its design and operation. The 

plant is designed to reuse wastewater and storm water and plant processes use water ponds to contain the 

water. Regulation under Subtitle C may not allow continued use of ponds for wastewater storage. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0011-2

Organization1:Santee Cooper

Commenter1:Tom Edens

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

The Subtitle C option would overwhelm existing Subtitle C disposal facilities, especially in South 

Carolina where there are no facilities. This would cause an undue economic burden without beneficial 

use. It will impact the cost of power, and this cost will be transferred to those customers who buy 

electricity. 
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Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0088-1

Organization1:JEA

Commenter1:Matt McClure

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Excerpt Text:

From the regulatory options on the table at this point, JEA urges EPA to pursue the Subtitle D prime 

approach. JEA believes that CCRs do not rise to the level of hazardous wastes, and that regulating them 

as such would provide marginal environmental benefit at a great cost. 

As a utility in Florida, a Subtitle C regulatory framework would not be practical. Florida has a statutory 

prohibition against the permitting of hazardous waste landfills, as well as a prohibition against 

considering byproducts for reuse if they are otherwise hazardous waste. 

JEA would be forced to send its CCRs to other states for disposal as hazardous, and EPA has already 

highlighted the lack of capacity associated with such an outcome in its preamble. State statutory changes 

needed to accommodate this hazardous-waste listing would be expected to have a low probability of -- of 

success for obvious reasons. 

The cost to JEA of managing its CCRs as hazardous waste would be prohibitive, and would come at a 

time when we have already been forced to enact a series of rate hikes due to adverse business conditions. 

A subtitle C approach, combined with a multitude of other environmental initiatives simultaneously being 

pursued by EPA at this time, would place JEA and its owners, the citizens of northeast Florida, in a bind. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0094-2

Organization1:Tennessee Paper Council and American Forest & Paper Association

Commenter1:Richmond Holland

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Our members are very concerned that EPA did not evaluate the economic impact of the proposed rule in 

the manufacturing sector, particularly if the Subtitle C rules are promulgated. We believe that our 

byproducts could have to be managed as -- as -- as hazardous waste materials even though it's not 

required under regulation, but we would have to do that, anyway. 

And that's -- we also believe that EPA should consider the additional costs of electricity that will result 

from the promulgation of regulations designating coal combustion product -- byproducts as -- as 

hazardous. And for those of yous -- us that use a lot of electricity, that's not a trivial issue.

And our last point is if EPA were to regulate coal combustion byproducts as hazardous waste, it is 

unlikely that our members would be unable to manage their hazardous waste any other way even if the 

rules do not apply to them. This additional cost was certainly considered by EPA, but it would be yet 

another cost to us. 
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We work in a global marketplace where no other country considers coal combustion byproducts to be 

hazardous materials. The EPA has the opportunity to keep jobs in the U.S. by keeping manufacturing 

costs competitive and not promulgating hazardous waste regulations for coal combustion byproducts.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0116-1

Organization1:Kentucky Chamber of Commerce

Commenter1:Chad Harpole

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The Kentucky Chamber believes regulating fly ash under Subtitle C option will impose significant costs 

on power-plant operations, and ultimately result in additional utility cost increases for businesses and 

consumers. Kentucky is proud to be the fifth leading producer of energy in the country, driving significant 

manufacturing in our state, including automotive production and aluminum production. 

We enjoy these low-cost utility rates thanks to the availability and proximity of Kentucky coal. Without a 

doubt, Kentucky's coal industry will be impacted under the Class C plan due to the potential for utilities to 

cut back production at coal-fired electric generation plants. 

If this occurs, we feel classifying coal ash as Class C waste will significantly threaten electric reliability to 

businesses and consumers in our state, and significantly affect local economies through the reduction in 

payroll taxes and employment numbers. Increased energy costs and decreased electric reliability will have 

a significant, adverse impact on all sectors of the business community, and could potentially force 

Kentucky businesses to relocate out of our state. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0125-1

Organization1:Dixie Electric Cooperative

Commenter1:Gary Harrison

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 9.2.2.1

Comment Excerpt Text:

Therefore, on behalf of our members, I'd like ask that you do not make any changes that could 

significantly increase the cost of production of electricity to our members. PowerSouth's coal-fired units 

were built in 70s, in a time where electric generation was greatly needed. At a time where coal, to a large 

extent, was the only fuel available to the cooperative generation to use because of the Fuel Use Act and 

prevailing economic conditions. As a result of our dependence -- as a result of the dependency on 

generation from these coal-fired units, our cooperative, as well as other PowerSouth members, will be 

directly affected by the final CCR rule. 

Response: The Agency acknowledges and appreciates the comment. 
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Comment Number: TRANS-KNX-0129-3

Organization1:PowerSouth Energy Cooperative

Commenter1:Keith Stephens

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

PowerSouth is also concerned that EPA's proposed definition of CCR surface impoundments may 

inappropriately affect the impoundments that are not designed to receive solid waste. None of the 

Lowman plant CCR impoundments discharge directly into the river, but they're routed through another 

surface impoundment before discharge. And our plant consistently meets all of its water- quality 

discharge requirements. Since the power plant operation requires water for various purposes, any adverse 

consequences would cripple essential power plant operations with no associated environmental benefits. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0005-1

Organization1:Indianapolis Power & Light

Commenter1:Dwayne Burke

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

First, we strongly suppor -- we strongly oppose Subtitle C regulation, rather, for -- for four primary 

reasons. First is, additional costs with no commensurate benefit. In our case we were looking at several 

hundred millions of dollars to close ash ponds, build new landfills, con -- consert -- convert existing 

activities from wet to dry and install new water treatment facilities. Those kind of activities. So we're 

looking at several hundred million dollars for our customers. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0055-3

Organization1:Vectren Corporation

Commenter1:Angila Retherford

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

As with most sustainability projects, Vectren has found that its customers also benefit directly from the 

beneficial reuse of these materials due to significant reduced cost in ash handling and disposal cost. This 

is critical given the pressure on rate payers from increased cost to comply with the myriad of other 

regulatory compliance requirements recently imposed upon the coal-fired- electric-generating industry. 

Vectren is a southwestern Indiana utility that relies on local Illinois basin coal for a vast majority of its 

electric generation. And Vectren's rate payers stand to be disproportionately impacted by the increasing 

regulatory pressure focused on coal-fired generation.
412

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0071-1

Organization1:Commerce Lexington

Commenter1:Tyler Campbell

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.1.1 10.4.2 4.1.1

Comment Excerpt Text:

Again, for -- for the members of my organization, the -- we represent electric utilities, power plants, and 

we also have a rep -- representation of ash marketers. The materials that these are -- that coal ash used for, 

and -- and has been stated here today, include cement and concrete applications. They're found in 

highway constructions programs and wallboard manufacturing, drywall. And all of this can be used to 

reduce the volume of disposed waste without endangering health and -- human health and the 

environment. 

The regulation of and the disposal CCRs under RCRA's hazardous waste rules, even with an exemption 

for beneficial use, could have a dedest -- a devastating impact on CPR -- CCR beneficial use because of 

the stigma associated with regulating any CCRs under the hazardous waste program. 

Given the overwhelming economic challenges confronting all sectors of the U.S. economy, we honestly 

believe that it's absolutely critical the EPA and the state come to a resolution regulating coal ash under 

Subtitle D in -- in an effort to work with the states, and not impose unnecessary regulation and controls on 

the electric power industry. And that would drive -- serve to drive up cost for the business community and 

con -- and residential consumers

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0097-1

Organization1:Kentucky Coal Association

Commenter1:Bill Bissett

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The KCA believes that this listing -- this listing proposal, if adopted and implemented, would impose on 

Kentucky's energy producers and fuel suppliers significant new costs that are unnecessary to protect the 

environment. These unnecessary costs would be borne by the citizens of Kentucky who consume the 

electricity generated by the combustion of Kentucky's coal resources. 

It would be particularly unfortunate in this era of national economic distress if the cost of producing 

energy required for national economic recovery was elevated by virtue of political rather than 

environmental considerations.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0139-1

Organization1:Kentucky Chamber of Commerce
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Commenter1:Chad Harpole

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

On behalf of the Kentucky Chamber and our 2700 member companies across the state, we appreciate the 

time to express our concern in opposition with the proposed regulation of fly ash as Subtitle C, hazardous 

waste under the Resource Conservation and Recovery Act. The Kentucky Chamber believes regulating 

fly ash under the Subtitle C option will impose significant cost on power plant operations and ultimately 

result in additional utility cost increases for businesses and consumers. 

Kentucky is proud to be the fifth leading producer of energy in the country, driving significant 

manufacturing in our state, including automotive production and aluminum. Most of this is thanks to our 

coal industry, which is vital to Kentucky's economy and threatened under the Subtitle C proposal. The 

Chamber feels these additional costs may cause some power plants to close or significantly reduce 

production in our state, thus threatening electricity reliability and signif -- significantly affecting local 

economies through the reduction in payroll taxes and employment numbers. 

Increased energy costs and decreased electric liability will also have a significant adverse effect on all 

sectors of the business community and can potentially force Kentucky businesses to relocate out of the 

state. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0010-3

Organization1:Electric Power Generation Association

Commenter1:Doug Biden

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Our members compete in the competitive wholesale electricity markets, like PJM, that serve two-thirds of 

electricity consumers in the United States. EPA has heard many cost estimates attributable to the Subtitle 

C option, starting in the tens of billions of dollars. Such costs will materially impact the economics of the 

coal fuel cycle. Many plants, particularly small coal plants and waste coal plants, will not be able to sort 

the cost of hazardous waste disposal and still remain competitive and will thus cease operations. The 

attendant lost jobs would be totally unnecessary.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0046-1

Organization1:Scrubgrass Generating Plant

Commenter1:Peter Rigney

Commenter Type: Electric Utility Facility
414

Classification: Substantive

Comment Excerpt Text:

If EPA pursues the RCRA C classification for our ash because we're a waste fill plant and our heat 

content of our fuel is so low, it will require us to shut down. We just could not afford -- the cost of 

disposal would exceed our cost of fuel.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0059-2

Organization1:American Electric Power

Commenter1:Steven Orenchuk

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

In addition to the increased and unnecessary financial costs associated with implementation of Subtitle C 

hazardous waste regulations for CCR disposal, there should be no doubt that such regulation will play a 

significant role in the premature closure of coal-fired generating units across the nation. Ironically these 

closures will be at least partly due to an overbearing set of regulations intended to prevent a hypothetical 

problem which is largely non-existent. Jobs will be lost as a result of these plant closures. Unnecessary 

environmental regulation which ultimately leads to the loss of jobs is wrong.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0069-2

Organization1:FirstEnergy

Commenter1:Ray Evans

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Regulation of this material as hazardous waste has the potential to divert recyclable materials into 

disposal facilities, and eliminate the many benefits of recycling CCRs. In facilities, which could drive up 

costs for everyone while undermining generating reliability, as these facilities are necessary for the 

operation of coal-based power plants. 

All of this translates into increased costs compared to the non-hazardous option, without any 

commensurate benefit to the environment.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0111-1

Organization1:Pennsylvania Aggregates and Concrete Association

Commenter1:Bruce Cody
415

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

We oppose Subtitle C designation for the following reasons: An increase of production costs and the 

cost of construction. Recently, our governor tried the common law asking for our support for additional 

transportation funding for our failing infrastructure. Adding additional costs to the construction projects 

is not what was asked of us. We need to keep the cost as low as possible to replace the hundreds of the 

structurally sufficient roads and bridges across the state. The increase on potential liability for concrete 

producers. We have a concern there will only be litigation targeting existing structures built with fly ash.

Potentially stricter state laws. We feel this will snowball into more state laws, such as the one proposed 

in Maryland regarding the disposal of any product containing fly ash must be done in a special facility. 

Our industry has done its part to recycle and reuse our product. Our producers have gone to great 

expense installing recycling equipment in their facilities. This could be all for nothing should Subtitle C 

lead into additional laws regulating the disposal of products containing fly ash.

Response: The Agency acknowledges and appreciates the comment. 

Section 9.3.11 - Other (e.g., over-/under-estimated costs except for storage)

Total Number of Submissions: 70

Total Number of Comments: 113

Comment Number: TRANS-ARL-0082-2

Organization1:

Commenter1:Jessica Miller

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

For permit issuance, this is actually something that the companies and industries that have spoken out for 

Subtitle C should take heart in because in order to get a permit you have to understand what the costs are 

associated with that permit so that having Subtitle C enforced, and the regulations will actually allow 

companies to make a sound economic assessment of what these coal plants and the projects of waste 

disposal, basically the mess that their industry will cause, will truly cost totally, and that will be able to 

help them in deciding whether the project is profitable within a moral economy.

Comment Number: TRANS-DEN-0012-2

Organization1:

Commenter1:Joby Adams

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

I believe that the cost estimates associated with the regulation of Subtitle C are underestimated. I also 

believe that we must advocate the beneficial reuse of the byproduct from the energy source that we must 

use, and I believe that if regulated under Subtitle C, the beneficial-reuse programs will be curtailed or 

possibly even eliminated to a substantial degree.
416

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0065-2

Organization1:Southern Alliance for Clean Energy (spoke as employee and citizen)

Commenter1:Katherine Stokes

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.1 7.1

Comment Excerpt Text:

What we're talking about today are the wet impoundment ponds or the huge dry landfills of coal ash, the 

type that flooded the land, houses and river of our neighbors in Roane County, Tennessee. This type of 

coal ash that is stored in impoundment ponds or landfills should be regulated by EPA's proposed Subtitle 

C. This ash hasn't been treated and is not your regular household waste as Subtitle D would suggest that it 

is. 

As we witnessed with the TVA coal ash spill, coal ash is not effectively regulated by the state of 

Tennessee. As we've learned from this disaster, the siding and structural stability of these coal ash storage 

impoundments are not regulated. Neither is the potential for these chemicals to penetrate groundwater. 

As we've witnessed, we know the regulations are made as suggestions or guidelines rather than enforced, 

as they would be in Subtitle D, that they are also not followed. EPA estimates Subtitle C could cause a 

0.8% increase in our electricity bills. We need to spend a little bit of money now to regulate coal ash as 

insurance so that we won't see another very expensive, life-destroying and very preventable accident like 

we saw almost two years ago here in Tennessee. 

Our electricity providers aren't afraid of taking risks because the cost is sent down to the customers. We 

are the ones that carry the burden. We're the ones who paid for the clean-up of the Kingston coal ash spill, 

and we need federal backing so that this doesn't happen to us again. 

EPA Sub -- suggested Subtitle C is the best choice for Tennessee's safety, health and wallets. It will save 

us money and distress in the long-run by helping us avoid another disaster.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0044-4

Organization1:Duke Energy Indiana

Commenter1:Bryan Walsh

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Finally, I would like to note that there are many coal-fired power plants throughout this country that are 

not base-load units. These could potentially be driven towards retirement depending on how coal ash is 

classified. This will have a direct economic impact on the communities we live in. For example, 

Gallagher Station is the largest taxpayer in New Albany, makes enough power to supply almost 200,000 

homes, employs 77 full-time Duke Energy employees, and also puts numerous contractors to work on our 

site on any given day. Gallagher is not unlike many other power plants across the country. And a Subtitle 

C classification could have a severe economic and employment impact

Response: The Agency acknowledges and appreciates the comment. 
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Comment Number: TRANS-LVL-0097-4

Organization1:Kentucky Coal Association

Commenter1:Bill Bissett

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Finally, the Kentucky Coal Association is deeply concerned that the current proposals represent a further 

effort of the EPA to discourage the mining and combustion of coal by imposing additional regulatory 

burdens on the use of America's most abundant and low-cost source of energy, coal

Response: The Agency acknowledges and appreciates the comment. 

Section 9.4.2 - Incorrect benefit assumptions

Total Number of Submissions: 15

Total Number of Comments: 37

Comment Number: TRANS-ARL-0002-4

Organization1:Environmental Integrity Project

Commenter1:Eric Shaffer

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Now, we understand recycling can benefit the environment; we don't understand how you're quantifying 

those benefits. You said in your June proposal that recycling coal ash into cements knocks out 26,000 

tons of fine particle pollution. Your office says the entire industry that you were looking at emits no more 

than 15,000 tons, and that's going to go to 3,000 tons in 2013. So how are you pulling 26,000 tons out of 

an industry that's not going to emit any more than 3,000? We don't understand that.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0045-1

Organization1:Charah

Commenter1:Danny Gray

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

And my comments are based on over three decades of experience in the compliance, recycling and 

management of coal combustion residues. My comments today are directed at a crucial base

assumption that EPA made in calculating the perceived impacts for implementing Subtitle C program as 

opposed to the more logical Subtitle D approach. 
418

I believe that the base assumption in the regulatory impact analysis, RIA, is incorrect and contrary to 

what actual experience has been in the marketplace. Specifically, when EPA prepares -- the EPA did 

prepare multiple analysis on the regulation impacts on recycling. It states that -- that, based on its past 

experience, it is likely that the recycling rates will increase under a C approach. Apparently, the 

assumption is that Subtitle C will drive up disposal costs which will induce utilities to take steps to 

increase utilization. 

Of the total benefits that EPA calculates, 83 to 97% of the -- of calculated benefits are attributable to 

one basic false assumption in our opinion, that recycling will increase as disposal costs increase. Our 

experience is different in contrary. We know that there are technical limitations on util -- utilities to 

drive utilization of coal combustion byproducts regardless of what the disposal costs are

Response: The Agency acknowledges and appreciates the comment. 

Section 9.4.7 - Other (e/.g., benefits over-/under-estimated)

Total Number of Submissions: 17

Total Number of Comments: 32

Comment Number: TRANS-KNX-0048-1

Organization1:Environmental Integrity Project

Commenter1:Abel Russ

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 6.5

Comment Excerpt Text:

I believe that the risk assessment that's in the docket and that's in the preamble to the proposed rule 

underestimates the risks of coal ash, specifically groundwater-based risks. And I think that the benefits in 

the regulatory impact analysis also underestimate the benefits of -- the health protective benefits of 

regulating coal ash. 

The risk assessment, like all risk assessments, includes a number of assumptions, and some of them are 

health protective. Others are seriously underestimating the risk. And specifically, there are combined risks 

to exposures of multiple contaminants that were not accounted for. Although the risk assessment states, 

for example, that arsenic is the only carcinogen in coal ash, there are, in fact, several constituents that are 

likely to be carcinogenic, including cadmium, lead, fluoride, and chromium, and others that we don't 

know enough about. 

The risk assessment also failed to account for possible additive or synergistic non-cancer risks. For 

example, as noted in the preamble, cobalt and antimony are both linked to heart and lung effects and both 

are among the constituents of concern in the final full-scale analysis. There are also at least four 

neurotoxins present in coal ash, only two of which are modeled in the full-scale analysis. 

Although the combined effects of these neurotoxins, for example, on children's developing brains could 

be substantial, these weren't accounted for in the risk assessment. Additionally, at the level of individual 

chemicals, not all roots of exposure were accounted for. And this means, for example, the total arsenic or 

selenium exposure was not captured in risk assessment. 

All of this means that many risks were unaccounted for, and I'm not saying that the risk assessment was 

flawed. I think it was pretty good given the limited information that we have available. But it would be a 

mistake to characterize it as inherently health protective when, in fact, it may have seriously 

underestimated risks. 

And all these things are even more true of the regulatory impact analysis which limited its analysis to 

arsenic and the cancer risks of arsenic. Not only did it lack the health protective assumptions of the risk 

assessment, it also neglected, for example, neurotoxicity, the ecological risk of selenium, and everything 
419

other than the cancer risk of arsenic

Response: The Agency acknowledges and appreciates the comment. 

Section 9.5.2 - Industry-specific economic data: EPA solicits info/data on best means for estimating 

current and future quantities and changes in beneficial use of CCRs, as well as on price elasticity of 

CCR applications in beneficial use market (35222)

Total Number of Submissions: 208

Total Number of Comments: 244

Comment Number: TRANS-ARL-0058-3

Organization1:PPL Corporation

Commenter1:Craig Shamory

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Based on EPA's own economic analysis, if Subtitle C eliminates beneficial use, the financial impact on 

our struggling economy will be in the billions of dollars. So if we can't beneficially use it we'll be forced 

to dispose of all these CCRs and that's very problematic, if even possible, under the Subtitle C approach. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0125-1

Organization1:

Commenter1:Jonathan Barker

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 9.2.1

Comment Excerpt Text:

The EPA suggests that by segregating these applications, byproduct utilization will not be impacted. 

Approximately 43 percent of the coal ash generated is utilized in applications such as cement, road 

construction, cement replacement in kilns, cement replacement in concrete road construction, building 

schools, building houses, building everything. To say that this is not going to impact that construction 

industry, as far as I'm concerned, is a very false assumption and seems to contradict the government's 

stimulus package approach of getting our country out of this recession.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0108-3

Organization1:LifeTime Composites, LLC

Commenter1:Mike Thorpe

Commenter Type: Beneficial User
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Classification: Substantive

Comment Excerpt Text:

Should the EPA rule coal combustion residuals including fly ash as hazardous, it would mean 

redeveloping a new engineered filler that has taken over ten years and millions of dollars to develop. 

This would seriously threaten the business of LifeTime Composites in the United States and could lead to 

the loss of 34 jobs, as well as the end of recycling millions of pounds of material each year.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0124-2

Organization1:City Water, Light & Power, Springfield, IL

Commenter1:Christine Zeman

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

We seek but cannot always find beneficial uses for our ash and often must pay for its reuse, especially in 

the present economy. The increased risk associated with its classification as hazardous will increase the 

cost for its reuse as we've already heard today, and will dissuade many recyclers from accepting it due to 

CERCLA strict liability scheme.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0011-3

Organization1:Tampa Electric Company

Commenter1:Randy Melton

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 5.5.5.1 10.4.3

Comment Excerpt Text:

Listing CCRs as a special class of hazardous waste will create an immediate stigma on these valuable 

products, resulting in drastic declines in sales. 

Onsite stockpiles of CCRs will grow at an alarming rate. Offsite disposal will skyrocket and landfills 

nationwide will be stressed beyond their capacities. Shipping of CCRs for disposal will result in increases 

in fuel usage and tailpipe emissions. Power generation costs will increase in response to burdensome 

equipment retrofits and operating requirements. Utility customers throughout the country will suffer 

significant rate increases. Many environmental benefits from the beneficial reuse of CCRs, including 

reduced demand for mined minerals, reduced consumption of valuable landfill space, and reduced 

greenhouse gas emissions, will diminish.

Response: The Agency acknowledges and appreciates the comment. 
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Comment Number: TRANS-CLT-0030-4

Organization1:Santee Cooper

Commenter1:Jay Hudson

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 5.5.5.1

Comment Excerpt Text:

The Subtitle C option would overwhelm existing Subtitle C disposal capacity increasing by 50 fold the 

volume of hazardous waste disposed on annually in landfill units. The shortfall is especially severe in 

South Carolina, since no hazardous waste disposal facilities in the state could receive any of these CCRs. 

A significant amount of the CCRs produced by Santee Cooper under the Subtitle C option would have to 

be hauled long distances for disposal, thus increasing road traffic, greenhouse gas emissions, and 

drastically increasing disposal costs when environmental responsible disposal and recycling options are 

available at a much lower cost. 

For those reasons, the Subtitle C option will cause an undue burden without environmental benefit.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0033-3

Organization1:Southern Concrete Materials

Commenter1:Jane Arnold

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

The NRMCA has outlined benefits from using fly ash. All of these would be reversed if fly ash is 

removed from ready mix concrete. There will be decreased durability and life of the structures, which 

could lead to injuries, but most certainly, would lead to increased costs. Also, the cost of the initial project 

will be greater. This will affect everyone in this room. Should you, as an individual, want to build or buy 

a home, the increased cost in the foundation, slab and driveway construction would be factored in. The 

same would hold true if you wanted to buy or rent a commercial space from which to run your business. 

We, as tax payers, would also pay more for an airport parking deck, a classroom building at UNCC, a 

new sports arena, a bridge over 485, new schools, or even sidewalks.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0099-1

Organization1:Advanced Wall Technologies (AWT), LLC

Commenter1:Carl Dudding

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:
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And regulation under Subtitle C, in my opinion, will severely impact my firm's ability to beneficially use 

significant amount of CCRs, as I will describe in a moment.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0116-1

Organization1:North Carolina Chamber of Commerce

Commenter1:John Goodman

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

It's been well demonstrated that a hazardous designation for coal ash would effectively end the beneficial 

use of CCRs. Currently more than 50 million tons of CCRs are recycled annually. This has an annual 

impact of about $9 billion on the U.S. economy. Designating coal ash as hazardous would cripple the 

many businesses that rely on these products for their livelihood due to the liability, stigma and marketing 

concerns that a hazardous label carries.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0026-1

Organization1:Precast Concrete Manufacturers Association of Texas

Commenter1:Chris Lechner

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.1.1 10.4.3

Comment Excerpt Text:

The precast, prestressed concrete industry relies on high early strength concrete. Fly ash actually slows 

our turnaround time. But it's added benefits currently outweigh the time factor; important benefits such as 

reduced water usage, improved concrete resistance to chemical attack, improved concrete strength and 

durability. Fly ash works well with Texas aggregates, rock, stone, and sand, and increases the use of 

locally available materials. The Texas Department of Transportation mandates its use in precast and 

prestressed concrete products, as well as other concrete applications because of its contribution to 

durability.

Currently, there is no word if they plan to change their specification to exclude fly ash if the classification 

changes. Either way, that decision could leave precast manufacturers in a precarious position if it is 

relabeled. Relabeling disposal is really an all-or-nothing proposal. The burden of a hazardous label by 

association penalizes sound reuse practices and puts up roadblocks to future innovation. 

In managing the resource, we have to continue to take advantage of all available options for responsible 

disposal and use. Engineers and architects rule my world. From concept through construction, they are 

part of everything we make. Just the fact that this is being discussed has raised -- raised concerns of 

availability, liability, and cost. All of a sudden, an accepted and proven ingredient is simply relabeled. 

A hazardous label will twist supply and demand. The label will compel producers to reconsider their sales 

of ash products, and costs will go up, supplies will dry up. Engineers and manufacturers will lose its 

benefits and be made to switch to more expensive chemical additives. 

Maybe more oversight is warranted, but a hazard tag is not a solution. It is an impediment. This is a 
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product that is needed and has a manageable life cycle. Disposal issues can be dealt with in a responsible 

manner that relies on science and not fear. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0044-1

Organization1:CPS Energy

Commenter1:Mike Mallone

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 9.3.7

Comment Excerpt Text:

I work for CPS Energy in San Antonio. We are municipally owned. We're the largest municipally owned 

power electric and gas company in the United States. We recycle over 97 percent of our coal residuals. 

We recycled approximately over 300,000 tons last year. Essentially that amounts to about 300,000 cubic 

yards of material diverted from landfills. Since the early '90s, we recycled over 6 million tons of CCRs. 

Recycling CCRs is a beneficial use. It lowers the cost to rate payers. We anticipate that this could cost up 

to over $100 million in annual transportation to local landfills. CPS Energy expects to generate 

approximately 600,000 cubic yards of CCRs per year over the next 20 years, totaling 25 million cubic 

yards over the next 50 years. 

CPS Energy believes that a Subtitle C designation would be counterproductive by increasing the amount 

of CCRs landfilled and impounded nationally because of the stigma that will be placed on CCRs. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0065-3

Organization1:Texas Coal Ash Utilization Group

Commenter1:Mike Silvertooth

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Technical and cost savings. Specific to Texas, the aggregates that are used for the production of concrete 

are highly reactive. ASR is a material related distress that has resulted in premature deterioration of 

concrete. Texas DOT highly relies on the use of fly ash for the mitigation of ASR. If the Texas -- if 

TxDOT does not have these materials at hand, they will have an increase of 12.7 million tons annually a 

year.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0076-1

Organization1:Luminant

Commenter1:Julie Prejean

Commenter Type: Electric Utility Company
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Classification: Substantive

Other Sections: 3.1.2 10.4.2

Comment Excerpt Text:

Environmental risk is dependent in part upon site-specific factors such as depth to groundwater, annual 

rainfall, and the amount of clay present in the soil. Imposing a hazardous waste designation would result 

in an attempt to regulate using a one-size-fits-all approach, which is not appropriate or warranted. 

It would also simultaneously destroy the recycling market. Since 1993, Luminant has sold nearly 40 

billion pounds of CCRs. In 2009 alone, we recycled more than 2.2 billion pounds. In fact, a variety of 

road projects currently underway right here in North Texas are utilizing recycled coal ash from Luminant 

facilities. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0092-1

Organization1:Office of the Texas Comptroller of Public Accounts

Commenter1:David Schanbacher

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

Even though EPA has attempted to allow the continued recycling of coal ash, these rules, if adopted, will 

have the unintended consequence of discouraging it. In a December 22nd letter to EPA Administrator 

Jackson, ASTM International said that designation of fly ash as a hazardous waste, even with an 

exclusion for beneficial use, will likely result in little or no fly ash being -- re -- being used in beneficial --

excuse me -- being used beneficially in concrete or other applications that supports sustainability options -

- objectives. 

The Texas state economy will suffer if the beneficial use of coal ash is eliminated. Since 2005, the Texas 

Department of Transportation has used about 185,000 to 275,000 tons of coal ash per year as a concrete 

additive. The coal ash additive reduces the incidence of ASR distress and the costly repairs to structures 

such as bridges. The elimination of coal ash as a concrete additive will require the use of more costly and 

sometimes less effective substitutes.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0116-1

Organization1:American Concrete Pipe Association

Commenter1:Matt Childs

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The American Concrete Pipe Association is here today representing our 50 member companies with 298 

facilities located throughout the United States. Our industry manufactures approximately 9.8 million tons 
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of concrete drainage products annually. That translates into 1.2 million tons of cement and 400,000 tons 

of fly ash consumed. 

If fly ash is ruled to be a hazardous waste requiring special handling, it would become cost prohibitive to 

use. Our members would be forced to use only cement in the manufacturing of their concrete pipe. Using 

only cement, rather than fly ash, would result in an additional annual cost to our industry of $40 million. 

It would also hurt our ability to compete with a product that actually does hurt the environment: Plastic 

pipe. 

Four hundred thousand tons of fly ash would not be encapsulated in concrete. Four hundred thousand tons 

of additional cement would need to be made using cement products. This, in turn, would negatively affect 

the marketplace for not only highway drainage products but for all concrete structures.

Comment Number: TRANS-DEN-0014-2

Organization1:Platte River Power Authority

Commenter1:Jon Little

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

With goals of avoiding disposal costs and saving natural resources, Platte River has worked diligently to 

gain industry acceptance of Rawhide FGD ash for use in many existing fly-ash-using applications. 

After several rather frustrating years of trying, we've achieved very limited success due to changes in the 

chemical and reactive properties of the ash caused by the sulfur that's mixed in during the SO2 removal 

process. We're are on pace to sell only about 6 percent of our ash this year at very nominal prices. 

Industrial users of fly ash simply find it more desirable to use non-sulfur-containing ash from unscrubbed 

plants. I believe this has also been the experience of utilities employing dry scrubbers. 

According to data from surveys conducted by the American Coal Ash Association, only about 12 percent 

of dry FGD ash produced between 2003 and 2008 has been used for beneficial purposes.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0028-3

Organization1:Great River Energy

Commenter1:John Weeda

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

The impact on CCS fly ash alone is estimated to be 40 million over the next 10 years in addition to a 

stranded investment in excess of approximately $20 million. 

GRE fails to see the EPA's logic that a Subtitle C classification would increase sales by increasing 

disposal costs. There is no correlation between the cost of disposal and the demand for CCRs in the 

beneficial-use market.

Response: The Agency acknowledges and appreciates the comment. 
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Comment Number: TRANS-DEN-0032-1

Organization1:Colorado Ready Mixed Concrete Association

Commenter1:Bernie Cawley

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

The specifying community, primarily architects and engineers, are the ones who typically make the 

decision on what building materials are used. With concrete it's quite common for these groups to specify 

the mix design. 

Since the review of CCRs was announced, our office has been deluged with calls from different architects 

and engineers throughout the state asking, Is it safe to use a CCR on their projects. 

Despite our positive approach towards it, this whole group of specifiers is not doing it because they're 

afraid of the stigma of it being a hazardous material. They're also afraid of future liability. When you add 

the additional cost of trucking, handling, and storage of a hazardous material, very few are going to 

specify a CCR due to potential for the increased cost and primarily that future liability. 

The second topic is something called alkali silica reaction or ASR. ASR is caused by cement interacting 

with the silica, and many of the aggregates that are found in the state of Colorado -- almost all the 

aggregates here have it. 

The result is a rapid deterioration of concrete. So you use CCRs as a mitigating factor to stop this 

reaction. They're probably the most prevalent and the best means to mitigate ASR. 

So if it's labeled as a hazardous or special material, it's doubtful the specifiers are going to use it. This is 

going to result in a number of different aggregates, another product for mitigation, or a low alkali cement 

or all three having to be shipped into Colorado from another state. 

This is going to result in a skyrocketing of costs of concrete and also the quality of concrete. So in this 

economy it's probably going to result in a number of different projects not being built; schools, roads, 

houses, et cetera. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0049-1

Organization1:Blalock Ready Mix

Commenter1:Dennie Underwood

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

Blalock has provided approximately 225,000 cubic yards annually to the public and private sectors in our

service area. Of those 225,000 yards, 85% of it used fly ash as a supplemental material. Our concern is 

that if EPA decides to designate fly ash under Subtitle C of the Resource Conservation Recovery Act, it 

will hinder not -- it will hinder, if not eliminate the use of fly ash in concrete all together.

If fly ash is classified under Subtitle C, we would be forced to eliminate it from our concrete production. 

This would be due to potential litigation for using a, quote, "hazardous waste product" in our concrete. 

The designers that we use would not design concrete with fly ash because of their liability that they would 

incur if they specify. It also causes us to reclassify all our drivers if we use fly ash because they'd be 

potentially hauling a hazardous material. 

If we have to stop using fly ash as a supplemental product, then our costs would -- would increase by 
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approximately half a million dollars. This 15 to 20% increase would pass on to the consumer, further 

decreasing the demand of our product due to higher costs. The higher cost would also reduce the available 

funds for road and infrastructure maintenance, loss of jobs. 

The stigma of a hazardous waste would effectively end the use of fly ash as a supplemental product in 

concrete. Better suggestion would be along the lines of -- of the Congressional Research Service has 

proposed a new Subtitle K, the federal waste law, which would give the EPA enforcement authority over 

coal waste rules without declaring the hazardous waste and to regulate the use -- reuse of coal ash.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0105-1

Organization1:JEA

Commenter1:Scott Schultz

Commenter Type: Electric Utility Facility

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

JEA is one of a handful of utilities that processes and manages its CCRs internally. JEA considers the 

recycling of its CCRs the right thing to do and an integral part of our environmental- sustain --

sustainability initiatives. 

I'm going to be spece -- speaking to only recycling and not the storage of CCRs. Recycling of CCRs is 

one of the few forms of recycling that requires no government subsidy and provides renewable and cost 

benefits that both the producer and the consumer. In addition to the environmental benefits of recycling 

our CCRs, it saves our rate payers over $10 million per year. 

The consideration by the EPA of classifying CCRs as hazardous waste has already negatively affect (sic) 

our recycling efforts. The classification of CCRs under Subtitle C, regardless of exemptions, will cease 

our CCR recycling program. 

We do need to remember that almost all environmental issues surrounding CCRs are not associated with 

the recycling but storage, including the tragedy at Kingston.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0029-4

Organization1:Ebensburg Power Company

Commenter1:Gary Anderson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

EPA should consider the negative implications of classifying all coal ash as hazardous. CFB ash will not 

likely meet encapsulation recycling/reuse standards. Industry ash management costs will increase by more 

than 31 times exceeding revenue by $40 to $50 per megawatt per hour. Our industry would operate at a 

loss, accordingly it would cease to exist. Thousands of workers will become unemployed, 10 percent of 

our region's electric energy will be gone and tax free reclamation benefits that to date includes 1,000's of 
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acres of land and hundreds of stream miles will vanish.

In summary, we are aware that certain special interest groups have lobbied their opinion that classifying 

coal ash as hazardous will increase beneficial reuse. Nothing could be further from the truth. Industry, 

governors and environmental departments from a majority of affected states have written to the EPA 

stating that ash should not be improperly declared hazardous. In ARIPPA's case, it would end our 

industry's beneficial use of ash and likely eliminate our industry. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0073-1

Organization1:American Bituminous Power Partners

Commenter1:Craig Cierra

Commenter Type: Electric Utility Facility

Classification: Substantive

Other Sections: 10.1.1

Comment Excerpt Text:

The Power Plant takes bituminous waste coal or refuge at abandoned mine sites and turns it into energy. It 

uses multiple sites all over north central West Virginia. The facility then reclaims the mine sites. It does 

this primarily by backfilling with ash from the power plant to replace the waste coal removed. The State 

of West Virginia has deemed ash from circulating fluidized bed boilers like Grant Town as a beneficial 

use product. It mitigates acid mine drainage from the old waste sites. It does this due to the high calcium 

content in the ash which neutralizes the acid in the drainage from the waste site. Deeming our ash as 

hazardous would eliminate AMBIT's ability to reclaim waste bituminous coal sites. The site has 

reclaimed 200 acres to date, and has at lest that much land currently slated to reclaim over the next 10 

years. 

The Grant Town Power Plant annually provides property taxes of a half million dollars. It pays state B 

and O taxes in the amount of 300,000 dollars. It pays another 120,000 dollars in other state and local 

taxes. Ambit pays almost a million dollars a year in taxes. 

The plant provides 66 direct full time positions. It also creates 221 spin off or indirect jobs. The power 

plant has a 4 and a half million dollar impact to the state and local economy in products and services 

outside of the jobs it creates. 

AMBIT is a marginal fiscal project. We receive a rate for our energy that offsets the local utilities cost to 

create energy. We are net neutral to the ratepayers of West Virginia. Our power purchase agreement does 

not allow us to recover or pass on the cost of ash as a hazardous material. The conservative estimate is our 

costs will raise 50 times what they currently are or 40 million dollars. This would be equal to our current 

budget in all other areas combined. 

This regulation would be detrimental to the Grant Town Power Plant. The plant would no longer run. The 

jobs would go away. The money to business in West Virginia would be gone. Taxes no longer paid. 

Reclamation of abandoned mine sites would be the responsibility of the people of West Virginia. 

This proposed regulation would be bad for the Grant Town Power Plant, bad for Marion County, and bad 

for the state of West Virginia.

Response: The Agency acknowledges and appreciates the comment. 
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Comment Number: TRANS-PIT-0081-1

Organization1:Sunbury Generation

Commenter1:Teresa Copenhaver

Commenter Type: Electric Utility Facility

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

In summary, we are aware that some groups believe that the increased cost in disposal of cal ash as a 

hazardous waste would increase the beneficial uses of coal ash. We do not agree and, in fact, governors 

and environmental departments from a majority of the affected states representing millions of citizens and 

jobs have written to the EPA stating that ash should not be declared hazardous.

In Subury's case, it would end our beneficial use of ash and add significant cost to our operations and 

ultimately to the Pennsylvania households we serve. The effect of this decision would be disastrous to the 

economy of our community if such an unreasonable rule causes us to go out of business. 

Regulation of coal ash as hazardous waste would prevent many current beneficial uses due to the potential 

liability, handling and transportation costs, as well as the stigma of using a hazardous waste. 

Response: The Agency acknowledges and appreciates the comment. 

Section 9.5.3 - Impact scenarios (increase, decrease from stigma, no change): EPA requests 

comment on impact of stigma on beneficial use of CCRs re EPA’s potential impact scenarios 

(35215); EPA welcomes ideas on how to best estimate stigma effects for RIA and requests any data 

or methods that would assist (35223); EPA solicits info/data that will help quantify any potential 

stigma effects under Subtitle C (35158)

Total Number of Submissions: 44

Total Number of Comments: 57

Comment Number: TRANS-ARL-0075-1

Organization1:Tufts University

Commenter1:Frank Ackerman

Commenter Type: Academia

Classification: Substantive

Comment Excerpt Text:

I'm an economist at Tufts University. I'm going to submit longer written comments, but I want to make 

one point about the economic analysis today which is that it is crucial to reject the treatment of stigma and 

the calculation of stigma-related losses in EPA's Scenario 2 in the RIA. That scenario assumes that the 

stigma of Subtitle C regulation would eliminate half of the market for reuse of coal ash even though reuse 

is clearly exempt from that regulation. 

There are three reasons to reject stigma as seen in Scenario 2. First, it is not supported by logic, economic 

theory or legal precedent. The stigma in Scenario 2 rests entirely on the incorrect belief that beneficial 

reuse of CCRs is described as hazardous waste. 

Since the buyers of CCRs are companies and not individuals, they should realize that it remains legal and 

profitable to use CCRs. If they do not realize that, they would be expected to lose market share to 

companies that do realize it and profit from continued use of CCRs. That's one of the virtues of a market 

economy. The stigma notion may stem from the negative publicity surrounding the Kingston spill in 

December 2008, but the recent dip in the reuse of CCRs is due to the economic slump which has dragged 

down the construction industry. The tonnage of beneficial reuse outside of mining started to go down in 
430

2008, too early to be affected by Kingston but matching the timing of the recession. 

The second point is that the estimates of stigma losses in the EPA analysis are purely arbitrary without 

even a pretense of empirical support. Why should 50 percent of one sales category or 80 percent of 

another be lost? Why do these losses persist unchanged for 50 years rather than fading over time as real 

stigmas typically do? This level of imprecision would be laughed out of the room in a debate about health 

hazards, cancer risks or anything else where real information exists. Far from providing empirical support 

for the stigma numbers, the EPA expresses its disbelief in these estimates and provides extensive 

evidence that there is no stigma preventing beneficial reuse of many Subtitle C wastes. The contrary 

argument in Scenario 1 is more logical and carefully supported with real empirical data. The desire to 

avoid increased disposal costs under Subtitle C regulation would actually increase reuse. Finally, consider 

the precedent for other regulation that would be created by stigma-based regulation of CCRs. The stigma 

losses are said to be more than 10 times the direct costs imposed by Subtitle C. So for the next regulation 

why bother thinking about the details of real costs and benefits? Just tell a story about the value of 

unfounded fears. Monetizing stigma-based losses that might be caused by fear of regulation is an 

argument against any regulation any time. Should all carcinogens be declared safe in order to avoid 

stigmatizing them and reducing their sales? If allowed, this absurd approach would win every time 

especially if it uses arbitrary estimates of stigma losses with no empirical support as is done in Scenario 2.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0014-1

Organization1:Platte River Power Authority

Commenter1:Jon Little

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Based on years of experience, in particular we reject the EPA's cost benefit scenario that assumes that 

increased future cost of regulated CCR disposal will induce coal-fired generating units to increase 

beneficial uses of their CCRs.

Response: The Agency acknowledges and appreciates the comment. 

Section 9.5.4 - Other

Total Number of Submissions: 12

Total Number of Comments: 18

Comment Number: TRANS-LVL-0121-2

Organization1:

Commenter1:Bobby Raia

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

More importantly, a hazardous regulation would impact the jobs related to the sales, trucking and 

manufacturing of coal ash. If we say "no" to the -- to the many coal ash recycling programs, it will be 
431

disposed of in landfills, which means additional, bigger, higher, and quicker filled landfills in order to 

accommodate the 44% that is recycled annually. 

Response: The Agency acknowledges and appreciates the comment. 

Section 9.6.2 - Comparison of benefits to costs

Total Number of Submissions: 18

Total Number of Comments: 26

Comment Number: TRANS-KNX-0001-2

Organization1:

Commenter1:Steve Scarborough

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

All of their testimony against doing the right thing will boil down to five words: It will cost too much. 

The corporations opposed to Option C argue against having solid federal oversight saying they can be 

trusted to do the right thing. They can't. I come here to speak as strongly as I can for Option C. The --

when I read the EPA cost benefit analysis, I thought, of course. Why not? Why is anyone opposed to this? 

The reason it is is that it makes the people who make the money creating coal ash waste and processing 

coal ash waste will have to pay more of the true cost of coal power instead of as it is now, they shift it to 

the people who live on the shores of Watts Bar Lake in rural Alabama, and even in your personal 

neighborhood. Nobody in this room or anywhere in America can escape the consequences of this 

decision. This stuff is everywhere. 

Roane County is my home. It's the most beautiful part of America. And it's also the site of the largest 

disaster -- coal disaster in American history. This disaster was caused by incompetency, willful 

negligence at mul -- multiple levels, but mainly in the financial decisions of a corporate bureaucracy 

focusing on short-sided cost savings and a complicit state agency that allowed it to operate a massive coal 

storage facility without adequate oversight. 

For a savings of $20 million, they now have a 1.2 billion-dollar clean-up mess. And the people in -- in our 

area can never be made whole. They have taken 2 to 7 years out of their lives, 200 hundred homes plus sit 

empty

Response: The Agency acknowledges and appreciates the comment. 

Section 10.1.1 - Support CCR beneficial use (including general reasons related to improvement of 

state beneficial use programs, component of GHG emissions reduction strategies and other 

environmental benefits, existence of established commercial sectors that use/depend on beneficial 

use of CCRs: 35160, 35222)

Total Number of Submissions: 618

Total Number of Comments: 773

Comment Number: TRANS-ARL-0001-1

Organization1:American Road and Transportation Builders Association

Commenter1:Nick Goldstein

Commenter Type: Trade Association
432

Classification: Substantive

Comment Excerpt Text:

ARTBA members routinely use coal ash to produce concrete, which is an essential material in 

transportation improvement projects. The transportation sector's use of coal ash is truly an environmental 

success story. According to EPA's own data, coal ash accounts for between 15 and 30 percent of the 

cement and concrete. Further, EPA has noted using coal ash at this level results in GHG reductions of 

between 12.5 and 25 tons, and an annual reduction in oil consumption of between 26.8 and 53.6 million 

barrels.

Further, as EPA has noted, coal ash generally makes concrete stronger and more durable, which reduces 

the need for future cement manufacturing and corresponding avoided energy emissions and energy use. In 

2008 alone, more than 12.5 million tons of coal ash were used in the production of concrete.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0009-3

Organization1:Boiler Slag Consortium

Commenter1:Sean Todd

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

Three, boiler slag should be held as a model for EPA for beneficial use. Keeping the Bevill exemption in 

place or even expanding it is the best action the Agency can take to create incentives for beneficial use. 

By doing anything else, it will impede beneficial use. Significant negative impact will occur should

further regulation occur.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0055-2

Organization1:SEFA Group

Commenter1:Hank Keiper

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

I strongly oppose the Subtitle C designation for coal combustion products. In 2006, I personally recycled 

168,000 tons of fly ash and bottom ash generated by my utility partner, Myriad. That's more than all the 

recycled material delivered by the residents of Arlington County in 2006. But I need to discuss stigma.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0061-1

Organization1:Titan America

Commenter1:Robert Sells
433

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

We are very supportive of Subpart D in the fact that concrete is dependent upon cementitious products. 

The coal combustion products that you're talking about today are invaluable to the concrete producer 

today. As much as 20 to 25 percent on average of cementitious product that is used in concrete comes 

from fly ash and other cementitious materials. That material is chemically bound in the concrete in the 

end product, it reduces the heat of hydration in concrete production and reduces the permeability. Fly ash 

is extremely beneficial to concrete. In addition, the industry which is not a very profitable industry has 

done everything it can to maximize the use of fly ash in concrete. There were over 460 million cubic 

yards of concrete consumed in 2006. The average price was sold at $90.30, and the gross profit for the 

Ready-Mix concrete producer was about $7-1/2. This is before taxes. However, with the economic 

turndown and the industry continuing to maximize its use of fly ash, the average selling price has 

increased slightly but other costs have increased more dramatically and the current gross profit is about 20 

cents per cubic yard. It is extremely important to understand that the use of fly ash saves the Ready-Mix 

producer about $4.75 per yard. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0064-2

Organization1:Boral Material Technologies

Commenter1:John Scoggan

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

Fly ash has been used in the United States since the 1920s. Over 25 years ago the Federal Register 

encouraged the use of fly ash with any federally funded project with over $10,000 in it. Today fly ash is 

accepted as a routine product in concrete. There is no pent-up demand for fly ash as the EPA's financial 

model indicates. Concrete can be made without fly ash if the Subtitle C goes through and the stigma 

comes out. 

The EPA has already reviewed coal several times in both 1993 and 2000 and came to the conclusion that 

it did not warrant the hazardous label. Nothing has changed. The constituents of fly ash have not gotten 

any worse. The EPA believes that recycling won't hurt concrete or the use of fly ash with Subtitle C for 

disposal. We believe the EPA is wrong in this assumption. The stigma is real. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0071-1

Organization1:The Concrete Industry Board of New York City

Commenter1:Bill Lyons

Commenter Type: Professional Association
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Classification: Substantive

Comment Excerpt Text:

Fly ash uses in the Metropolitan New York City area are numerous. It is used continuously in the 

construction of high-rise tall building development. Because fly ash reacts with the unhydrated cement, it 

creates a better bonding concrete that without its use concrete's high strengths would not be attained. Fly 

ash is also used in concrete mixes for our streets, bridges and parking structures, not only in the 

Metropolitan New York area, but every single one of the towns and cities and states that are in the union.

The purpose is for the durability benefit it offers. Longer-lasting structures can be obtained with the

addition of fly ash in the mixes. Fly ash has been used successfully in concrete for over 30 years in the 

New York City Metropolitan area well before the term green became a symbol for sustainability. Back 

then it was just another color in the rainbow. I feel it would be an injustice to landfill the 50 million tons 

of fly ash annually used in concrete products.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0074-4

Organization1:ARIPPA

Commenter1:Jeff A. McNelly

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Since 1985 Pennsylvania DEP has provided oversight on the beneficial use of coal ash for mine 

reclamation and other uses. PA DEP's 25-year scientific technical findings include, one, allegations that 

ash causes pollution are seriously flawed. Two, ash placement has not caused water-quality degradation. 

In fact, in some instances significant improvements have occurred

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0092-1

Organization1:Separation Technologies and Essex Cement

Commenter1:Randy Dunlap

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

I want to thank the EPA for conducting these hearings for what will potentially be the most important 

decision in regulation that those of us that are both users and marketers of CCRs have ever dealt with. 

Separation Technologies is a company with more than 100 employees that is involved in the processing 

and marketing of fly ash. We have a patented zero emissions technology that processes and removes 

carbon from fly ash, thereby taking the fly ash that would normally have to be landfilled and turning it 

into a high-quality product for use as a partial replacement for Portland cement and concrete. 

Our business model entails providing a 100 percent solution to the utility industry with respect to CCRs, 
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resulting from the combustion of coal during their power generation. The carbon that our technology 

removes is then available to be returned to the utility for fuel. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0119-1

Organization1:

Commenter1:Jim Rohrbach

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Industry figures show about 60 million tons of coal ash was recycled in 2008. Uses of coal ash as a 

structural fill in construction application saves money and reduces the need to mine virgin soil resources. 

The same can be said for the use in concrete manufacturing along with the millions of tons of avoided 

greenhouse gas emissions annually resulting from the replacement of cement with coal ash. In the 

operation I manage in Delaware, the beneficial use of coal ash with municipal sewage sludge saved 

millions of cubic yards of landfill volume over the last 15 years while mitigating the need for millions of 

cubic yards of virgin resources for fill and landfill cover applications. 

These and many other uses save the public money. They save virgin resources and landfill volume and 

reduce greenhouse gas emissions by many millions of tons annually. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0128-1

Organization1:International Brotherhood of Electrical Workers

Commenter1:Bruce Burton

Commenter Type: Union

Classification: Substantive

Comment Excerpt Text:

The nature of coal ash does not warrant its regulation in the same section of law as hazardous waste. Such 

regulation would destroy the very successful recycle programs that greatly reduce the need for and cost of 

disposal. CCRs have been used for decades to enhance concrete and for wallboard construction. CCRs 

contributed to the construction of the Hoover Dam and the San Francisco/Oakland Bay Bridge. More 

recently they were used in the construction of the new I-35 bridge in Minneapolis, Minnesota. Concrete 

made with fly ash extends the life of construction projects by decades, minimizing the environmental 

impacts of rebuilding. 

The approximately 45 percent of CCRs that are currently recycled avoid about 117 tons of greenhouse gas 

emissions annually, and every ton of fly ash used in place of Portland Cement prevents about a ton of 

CO2 from entering the atmosphere. Additionally, the equivalent of 55 gallons of oil is saved because that 

is what it takes to produce a ton of cement. Furthermore, fly ash requires less water than Portland cement.

Response: The Agency acknowledges and appreciates the comment. 
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Comment Number: TRANS-CHI-0039-1

Organization1:Stark Excavating

Commenter1: Weishaar

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Portland cement concrete is an integral part of our business. It is used in construction of PCC roadways, 

bridges, curb and gutters, foundations and driveways. We produce approximately 70,000 cubic yards of 

concrete annually in McLean County. We purchase another 70,000 cubic yards for operations in 

surrounding counties. 

Coal ash plays an important part in the concrete industry. Its benefits are many. Coal ash used as a cement 

replacement is approximately $49 per ton cheaper than the type 2 Portland cement alternative. A standard 

concrete mix using 20 percent coal ash replacement results in a cost savings of $1.35 a cubic yard. In our 

business model, that is a cost savings to consumers of $189,000. Keep in mind we are in a small market 

and the impact nationwide is astronomical. 

Other uses of coal ash are the mitigation of ASR, alkali-silica reactivity. The addition of coal ash in 

concrete mixes allows the use of a wider array of coarse and fine aggregate combinations. It allows the 

utilization of locally produced materials. The end result here is a substantial cost savings to the consumer. 

The mitigation of ASR is critical to the long-term durability of concrete pavements. There are many other 

benefits to the use of coal ash in concrete production. 

In summary, you can see the critical role that coal ash plays in concrete production. Our firm is concerned 

about how our business impacts the environment. It is a great concern of ours. I have read articles, both 

for and against the impact of coal ash in our environment. I personally think that more research needs to 

be completed including the impact to industries dependent on this byproduct prior to any changes in the 

disposal regulations. I look at the construction industry as a partial solution to the disposal of this 

renewable byproduct. 

For these reasons, we ask the EPA to reconsider any changes in its current regulatory practice or develop 

an exemption for its use in environmentally friendly ways. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0042-2

Organization1:Ecologic Tech.

Commenter1:Jerry Liu

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

All of our test data showing the safety of fly ash bricks would be useless in countering images of nuclear 

scenarios where you have something like the Tennessee Valley spill. 

Look, I'm not here to downplay the importance of diverting fly ash from landfills and impoundment 

ponds. No one wants another incident like what we had in Tennessee. But we must not forget that fly ash 

is generally safe to handle and store. Indeed, Ecologic Tech has been researching and working with fly 

ash since our inception in 2001 without incident. The move to completely redefine fly ash waste is 

especially disheartening because we firmly believe that remediation is an issue that can be handled by 

modifying existing rules and imposing stiffer penalties for accidents. 

So, if there is anything about what I have said that I would want you to remember, it's this, "Please don't 
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throw the baby out with the bathwater." Over 40 millions of tons of fly ash go unused each year. Fly ash 

bricks and roofing tiles could be a significant and safe avenue of disposing this waste. But it won't happen 

if we have to start with a source that the public views on the same level as radioactive waste and 

biohazardous material. 

We strongly urge the continued classification of fly ash under Subtitle D.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0047-1

Organization1:American Concrete Pavement Association

Commenter1:Randell Riley

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Though perceived as a waste product, fly ash used in concrete makes it stronger, less permeable and more 

durable. In simple terms, it makes it last longer. Fly ash offers all of these benefits while also making the 

concrete less expensive since it replaces the more expensive Portland cement, the "glue" that holds 

concrete together. 

Fly ash also makes concrete "greener" and more environmentally friendly. The CO2 footprint of the 

concrete industry in Illinois alone is reduced by roughly 450,000 tons by simple substitution in the 

concrete for Portland cement.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0058-3

Organization1:Indianapolis Power & Light

Commenter1:Dana Meier

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

Subtitle C eliminates or greatly reduces beneficial use options. IPL produces approximately a million and 

a half tons of CCRs annually and utilizes 40 to 50 percent of that in a myriad of environmentally friendly 

options including fly ash, bottom ash, FGD gypsum as raw materials for producing concrete, cement and 

wall board and in agricultural applications. 

There are significant environmental benefits to these uses. First, utilization reduces valuable landfill space 

that would otherwise be needed for disposal. Also, using CCRs as raw materials to replace mined natural 

resources and manufactured products reduces CCR user cost and conserves valuable resources. IPL 

believes burdening CCRs with a hazardous label, even if they are exempt under Bevill, would drastically 

reduce the amount of CCRs that can be used, commensurately increasing by double or more the amount 

of CCRs that IPL would have to dispose and commensurately reducing the attendant environmental 

benefits.

Response: The Agency acknowledges and appreciates the comment. 
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Comment Number: TRANS-CHI-0088-1

Organization1:Lafarge North America

Commenter1:Dave Diedrick

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

I manage the fly ash contracts for Lafarge in the Midwest and work collaboratively with our utility 

partners to beneficially reuse the products they generate in the construction industry. On an annual basis, 

Lafarge recycles over six million metric tons of CCRs in North America, in a variety of applications 

including as a Portland cement replacement in concrete, raw material in the production of Portland 

cement, to enhance the engineering properties of soils and base materials on construction sites, and in the 

production of gypsum wallboard. In all these cases, these materials replace either a manufactured product, 

as is the case with Portland cement, or naturally occurring aggregates. It is always done in an 

environmentally responsible manner and professional manner working with specifiers and engineers in 

sustainable construction practices. 

These applications are recycling in the purest form. Living in the Detroit area, my neighbors and friends 

are generally associated with the auto industry, almost all of them. They find what I do for Lafarge as 

unique, innovative, environmentally responsible in a CO2 constrained environment, and are all intrigued 

by the beneficial uses of CCRs, it makes sense to them, people with no knowledge of the industry. Fly ash 

reduces the amount of CO2 required to produce a cubic yard of concrete, the material that allows us to all 

stay warm and dry in our homes, drive our kids to soccer practice, and educate them in our community 

schools. We cannot take our infrastructure for granted, like the building we're in right now. 

Fly ash is a valuable constituent in concrete not only replacing Portland cement but as an important 

ingredient in high performance concrete resulting in higher strengths, thinner sections, less permeable and 

more durable concrete, ultimately giving it a longer life. These attributes cannot be obtained by Portland 

cement alone. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0099-1

Organization1:Lafarge North America

Commenter1:Jim Rosenmerkel

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

For nearly ten years, I've been promoting the use of Class C fly ash from coal fired power plants 

throughout Wisconsin and Illinois. We have successfully used fly ash to stabilize soft, unsuitable soils in 

highway construction and to recycle hot mixed asphalt pavements. We have experienced extraordinary 

results by increasing the bearing strengths of native soils over 20 times and we now have fly ash owners 

that have hundreds of thousands of dollars and reduced construction times by as much as 25 percent. 

Four years ago, we stabilized the existing soils under the new runway at Chicago's O'Hare Airport. We 

used 110,000 tons of fly ash and eliminated the need to export/import suitable soils, saving hundreds of 

thousands of dollars in both cost and time. We used fly ash to construct a sand foundation under a new 

power plant in Wausau recovering more than two months of lost time using 15,000 tons of fly ash and 
439

saved the utility company nearly eight million dollars. 

A number of counties are now using full depth reclamation, that's fly ash, to increase the strength of 

pulverized pavement. Full depth reclamation reuses all existing materials, eliminates the need for new 

natural materials and reduces the thickness of new asphalt pavements. Total savings exceed 30 percent. 

Full depth reclamation at the Waukesha County Airport in 2005 resulted in a $50,000 cost savings. 

In my years of advising others on design and construction with fly ash, we have used well over threequarters of a million tons of material that would otherwise have gone to landfills, and that's just in 

Wisconsin and Illinois. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0101-2

Organization1:Dynegy Midwest Generation

Commenter1:Jeff Ferry

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

DMG has a long history of selling coal ash for reuse. Besides the economic benefits of reuse, fly ash 

reuse in concrete reduces the demand for natural resources, and each ton of fly ash used in concrete 

reduces CO2 emissions associated with cement production. Hazardous waste under Subtitle C will 

drastically impact these uses, increase the cost of construction materials, and threaten the existence of 

companies that market these byproducts.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0107-2

Organization1:Concrete Reinforcing Steel Institute

Commenter1:David McDonald

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The benefits of using fly ash in concrete have been well proven. The EPA itself has stated that 

encapsulated coal combustion products "do not raise concerns and offer important environmental 

benefits." Our concern is that the proposed regulations may result in the disposal of coal ash that prevents 

users obtaining these important environmental benefits and increases the risk to public safety. 

In 2008, approximately 12 million tons of greenhouse gas emissions were avoided by using coal 

combustion products in concrete. Through the use of fly ash, federal projects avoided energy use of 

approximately 25 billion megajoules; water consumption of two billion liters; and avoided carbon dioxide 

equivalent emissions of 3.8 million metric tons.

Response: The Agency acknowledges and appreciates the comment. 
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Comment Number: TRANS-CHI-0108-1

Organization1:LifeTime Composites, LLC

Commenter1:Mike Thorpe

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

LifeTime Composites began with the objective of creating a product that can serve as a sustainable 

replacement for wood in any nonstructural application in which wood is deteriorated by the elements. 

The result of our years of extensive research and development and the product design is LifeTime 

Lumber, an eco-friendly wood alternative that uses up to 70 percent recycled fly ash. 

The fly ash is used as an engineered filler which is bound and encapsulated within a polyurethane matrix 

in a proprietary process. The resulting composite provides a unique combination of weight, strength, 

hardness, flexibility and resistance to water absorption. 

LifeTime Composites is a member of the US Green Building Council, certified by the Scientific 

Certification Systems for material manufactured with a minimum of 60 percent recycled content, and 

complies with the requirements for LEED 4.1 and 4.2 credits. 

Currently, LifeTime Composites is beginning a national launch of various product lines which include 

privacy fencing, equestrian fencing, decking, docks, pergolas and arbors. 

So far in 2010, LifeTime Composites has safely recycled one million pounds of fly ash within its 

products. 

2011 forecasts anticipate the beneficial use of five million pounds of fly ash. This equates to over 76,000 

cubic feet of landfill space. 

LifeTime Composites directly employs 34 hardworking individuals. 

Our engineering and development group has evaluated the toxicity characteristic leaching procedure 

analysis for the fly ash in our products and concluded our products are safe to use in the applications we 

are marketing.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0127-2

Organization1:CCP Utilization

Commenter1:Keith Bargaheiser

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

It is recognized from your draft proposal that you do not believe that this is a beneficial use. However, I 

would ask you, how can this not be when so much good could have come out of this? We could have 

avoided landfilling of waste material, virgin material would have been spared, the impact of our carbon 

footprint would have been reduced, and both the kids and animals would have been safer. There is a 

stigma here. 

We need to reach deep within ourselves, and that's both industry, EPA and environmentalists, and put 

aside our differences to find out what the real answers are, because the right answers for our nation, 

environment and in common are very important.
441

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0030-2

Organization1:Santee Cooper

Commenter1:Jay Hudson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Santee Cooper has a very successful recycling program, which emphasizes the beneficial use of both ash 

and gypsum. 

Santee Cooper's sale of gypsum over the last five years is over 75 percent of the total production. 

Gypsum, which is predominately calcium sulfate, can be safely used in the production of drywall and as 

an agricultural soil amendment. Using gypsum saves the environmental impacts associated with mining 

the natural mineral. 

More importantly, gypsum does not meet any of the criteria set forth under RCRA for hazardous waste. 

Various lab tests have been conducted on the gypsum at Santee Cooper gypsum, and results showed 

gypsum does not have any hazardous waste properties. 

We also successfully recycle fly ash and bottom ash in order to minimize the use of ash ponds and 

landfills. When fly ash is encapsulated in concrete or cement, this is an environmentally responsible reuse 

program.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0033-1

Organization1:Southern Concrete Materials

Commenter1:Jane Arnold

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

I want to go over with you a few points why I am against Subtitle C, why I feel like fly ash is helpful 

rather than hazardous to our industry. 

Southern Concrete has produced and delivered concrete primarily in Western North Carolina and the 

Charlotte regions since it was formed in 1958. The National Ready Mix Concrete Association has stated 

that fly ash is present in over 55 percent of concrete produced. I would be willing to say that the 

percentage of fly ash concrete we have produced is closer to 70 percent. 

In explanation, the fly ash is delivered to our plants in tanker trucks. We place it in silos and eventually 

weigh it up and batch it into the mix, which then becomes a plastic concrete. At this point, our driver 

delivers the concrete to our customer in a specially designed truck that continues to mix the plastic 

concrete until it is discharged to the customer. Generally, our customers are not the end user, but will be 

the company that places or forms the plastic concrete. We might sell to a one- or two-man operation 

working out of a pickup truck or to a more complex company with highly sophisticated equipment used to 

place and form concrete in ultra level slabs, high-rises, bridges, parking decks, et cetera. 

What I believe has been relevant to this discussion is the fact that in 52 years, Southern Concrete has 

worked closely with fly ash. There has not been even one incident that I can recall when an employee, an 

outside hauler, a customer, or an end user has named us in a health claim relative to fly ash.
442

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0088-1

Organization1:American Coal Council

Commenter1:Janet Gellici

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The beneficial use of coal ash contributes $6-$11 billion to the U.S. economy on an annual basis. 

Designating coal ash as a hazardous waste will jeopardize up to $11 billion of economic value for our 

nation each year. 

My name is Janet Gellici. I'm Chief Executive Officer of the American Coal Council. The ACC is a trade 

association representing over 160 companies involved in the coal industry. Many of our member 

companies are actively engaged in beneficially recycling coal ash. 

In 2005 our organization conducted the first ever assessment of the economic value of beneficial coal ash 

use. That study identified total economic benefits of $4.5 billion annually. Since the 2005 report was 

published, beneficial use of coal ash has increased significantly. The ACC updated its economic 

assessment in January of this year. We found that the use of coal ash now contributes $6-$11 billion in 

annual economic benefit for the U.S. economy. These benefits include revenues from the sale of coal ash 

for beneficial use, avoided cost of disposal, and savings from use as sustainable building materials. 

The ACC study also identified significant environmental advantages associated with beneficial use of 

coal ash. We found annual reductions in energy consumption equivalent to the energy consumed by 1.7 

million homes. We found water savings equal to 31 percent of California's annual domestic water use. 

We found annual greenhouse gas emissions reductions comparable to removing 2 million cars from the 

road. The American Coal Council supports the increased beneficial use of coal ash is a non-hazardous 

product. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0091-1

Organization1:Carolina's Ready Mixed Concrete Association

Commenter1:William Arent

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

It has literally taken decades for fly ash to gain the wide acceptance it now enjoys with specifiers and 

concrete producers. Incorporating fly ash in a concrete mixture provides many benefits. The durability of 

concrete can be improved and service life extended by using fly ash. Fly ash can lower concrete 

permeability and thus reduce the rate of ingress of water and aggressive chemicals. Fly ash is used to 

resist deleterious alkali aggregate reactions and sulfate reactions in concrete. Fly ash increases the 

compressive strength of concrete. Fly ash reduces the heat of hydration in mass concrete. Fly ash is 
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recognized in the U.S. Green Building Council's LEED system as a postindustrial recycled material. Fly 

ash reduces the cement content of concrete and thus the CO2 generated in the manufacture of cement.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0099-4

Organization1:Advanced Wall Technologies (AWT), LLC

Commenter1:Carl Dudding

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

My company, Advanced Wall Technology, has developed new, innovative and unique methods for 

additional recycling/beneficial reuse of CCRs. The potential regulation of CCRs as a Subtitle C material, 

however, threatens that development. 

The potential exists for AWT methods to reuse 5 to 10 million cubic yards of material for CCRs for the 

expansion of new facilities, including utility CCR landfills, constructing large road embankments, et 

cetera, above current reuse rates. 

Not only do these methods utilize a significant volume of CCRs in construction, by doing so, significantly 

reduce the number of new landfills -- new landfills that would need to be constructed in the years ahead 

as we develop as a society by increasing, recycling, or reuse. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0106-1

Organization1:

Commenter1:Craig Wallace

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1 10.4.3

Comment Excerpt Text:

I'm a coal ash marketer. Based on my tacit and explicit expertise of concrete coal ash marketing, I can 

unequivocally testify that linking coal ash with other hazardous by-products is a monumental mistake if 

you're trying to promote coal ash for beneficial use. It is a bad idea that is going to have unintended 

consequences, not only in this country but other countries around the world that follow our government's 

lead. Without EPA's unabashed support for beneficial uses, demand and marketability of coal ash will 

decrease. EPA support is already waning: The termination of EPA's C2P2 website is a verifiable example. 

A hazardous waste labeled coal ash is totally unwarranted. Both Subtitle C and Subtitle D proposals 

accomplish the end goals for citizens impacted by coal ash disposal. Let me point out, Kingston is a 

federal owned and operated facility that had years of unstable sludge deposits that triggered the spill that 

is serving as the catalyst for federal oversight proponents today. 

Recycling coal ash benefits our environment and contributes to the conservation of our resources and 

reduction of CO2 gases. Putting coal ash disposal in the same group with other Subtitle C wastes thinking 

it will have no effect, or a positive effect on beneficial use, is pure nonsense. We are going to have to 

dispose of more coal ash if we go Subtitle C. 
444

Today we are asked to provide verifiable evidence that the hazardous stigma has detrimentally affected 

beneficial use. I'd like to know how we are supposed to do that and prove that impact to something that 

has not yet happened. This is a very convenient position for Subtitle C proponents and very disheartening 

for those of us who know the coal ash markets. 

I do not believe there is a person in this room who thinks what happened in Roane County is acceptable. 

Beneficial use marketers understand there are gaps in current disposal rules. These gaps will be fixed with 

Subtitle D. So let's fix the problem without stigmatizing coal ash as hazardous waste. 

But the EPA continued to support coal ash beneficial use without creating an oxymoron scenario that is 

going to reduce demand for coal ash. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0113-3

Organization1:MACTEC Engineering and Consulting

Commenter1:Guy Winebrenner

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

The beneficial reuse of CCR, such as fly ash and gypsum in construction materials, such as concrete and 

wallboard not only reduces the overall quantity of CCR to be stored, but also provides a means to offset 

the cost of CCR storage. In addition, the CCR incorporated into beneficial products takes the place of 

other raw materials that would need to be obtained from other sources. This provides a secondary benefit 

of reduced impact on the environment from the mineral extraction activities required to provide these new 

materials.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0118-1

Organization1:SCANA Corporation

Commenter1:Jack Preston

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

This leads us to question number two: What are the implications if CCRs are classified as hazardous 

waste? Well, for starters it pretty much effectively kills the commercial market for products manufactured 

with the recycled CCRs. Nationwide over 43 percent of CCRs are recycled annually for use in cement and 

concrete. At SCE&G, we have successfully recycled over 45 percent of the CCRs we've produced over 

the past three years, mainly for use in cement and concrete industry. 

End users of CCRs have warned us directly that subjecting CCRs to hazardous waste regulation will 

significantly curtail the beneficial use of CCRs, if not ending it entirely. The irony of this is that such a 

move would result in significant negative impacts to the environment. 

For an example if CCRs such as fly ash are no longer viably available for things like highway and 

building construction, then other things have to be mined and found to replace it. It's estimated that the 

beneficial use of CCRs saves over 73 trillion BTUs of energy, which reduces greenhouse emissions by 
445

12.4 million metric tons of CO2. It also has an estimated value of over $2 billion in the US economy. 

Having to landfill this extra ash is approximately a 50-fold increase in the volume of hazardous waste 

disposed of annually in landfills. That doesn't even take into consideration the hundreds of millions of 

tons of existing CCRs. 

This will create a true crisis, an immediate and critical shortfall in hazardous waste disposal capacity that 

cannot be mitigated by new landfills. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0002-1

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

At the first two public hearings in Washington, D.C., and Denver, I've had numerous opportunities to 

converse with people who belong to organizations that are committed to reducing greenhouse gas 

emission linked to climate change. Most of these people had no idea that coal ash is used to replace 

portland cement in the production of concrete, an activity that reduces greenhouse gas emissions from 

cement productions by more than 12 million tons every year. 

It's not surprising that people don't know this. The major environmental activist organizations that favor a 

hazardous waste designation for coal ash never mention that ash can be recycled safely with 

environmental benefits. The Environmental Protection Agency has further contributed to this lack of 

understanding by removing its Coal Combustion Products Partnership Web site from the Internet just 

when the need for information about coal ash recycling is at its greatest. 

Many people in this room would like to see the use of coal disappear altogether. However worthy that 

goal is, it won't happen overnight. Nearly half of America's electricity is generated by burning coal, and 

Americans keep using more electricity every year. Like it or not, coal will continue to be burned in 

significant quantities for many years to come. So the question remains: What should we do with the ash 

that is left over? 

Recycling coal ash keeps it out of landfills and ponds where it can cause the kind of problems we will 

hear much about during today's hearings. Recycling it in applications such as concrete production produce 

additional benefits like greenhouse gas emissions reductions that are important to everyone in this room. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0002-2

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

There are two regulatory options before us for comment today, the Subtitle C hazardous and Subtitle D 

non-hazardous. Under both proposals, new landfill engineering standards are essentially the same. 

Landfills won't be any stronger or better under Subtitle C, but coal ash recyclers will be saddled with a 
446

hazardous waste sigma that will make continued recycling of this resource difficult or impossible. 

For those who deny the existence of stigma, I would ask just two questions. First, if the EPA is right and a 

hazardous waste designation would motivate people to recycle more, then why are the people who make 

their livings as recyclers unanimously opposed to it? Wouldn't they be in favor of something that would 

help them make more money? Perhaps it is because the people who recycle ash every day are well aware 

of the response you and your neighbors would give to the second question: Would you want something 

that is classified as hazardous waste in your home, school, or workplace? 

The EPA should enact tougher coal ash disposal regulations, but it should do so without unnecessarily 

classifying coal ash as a hazardous waste and risking the destruction of a recycling effort that helps 

accomplish everyone's goal of a cleaner environment.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0019-1

Organization1:Ameren Corporation

Commenter1:Edward Kahl

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

I have direct experience, knowledge, and responsibility in the beneficial utilization of coal combustion 

products. Over the past ten years, Ameren has developed a robust CCP recycling program. For example, 

we found so many uses in the years 2007 and 2008 that we were able to beneficially recycle more than 

100 percent of what we produced. This was only possible because we were able to reclaim past 

production and use it. 

In 2009, the amount of ash recycled dropped to 70 percent. And the projections for 2010 is around 42 

percent. Certainly, the reduction in our ability to recycle CCPs beneficially is a reflection of the poor state 

of the economy.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0026-1

Organization1:Precast Concrete Manufacturers Association of Texas

Commenter1:Chris Lechner

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.3 9.5.2

Comment Excerpt Text:

The precast, prestressed concrete industry relies on high early strength concrete. Fly ash actually slows 

our turnaround time. But it's added benefits currently outweigh the time factor; important benefits such as 

reduced water usage, improved concrete resistance to chemical attack, improved concrete strength and 

durability. Fly ash works well with Texas aggregates, rock, stone, and sand, and increases the use of 

locally available materials. The Texas Department of Transportation mandates its use in precast and 

prestressed concrete products, as well as other concrete applications because of its contribution to 

durability.

Currently, there is no word if they plan to change their specification to exclude fly ash if the classification 

changes. Either way, that decision could leave precast manufacturers in a precarious position if it is 

relabeled. Relabeling disposal is really an all-or-nothing proposal. The burden of a hazardous label by 
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association penalizes sound reuse practices and puts up roadblocks to future innovation. 

In managing the resource, we have to continue to take advantage of all available options for responsible 

disposal and use. Engineers and architects rule my world. From concept through construction, they are 

part of everything we make. Just the fact that this is being discussed has raised -- raised concerns of 

availability, liability, and cost. All of a sudden, an accepted and proven ingredient is simply relabeled. 

A hazardous label will twist supply and demand. The label will compel producers to reconsider their sales 

of ash products, and costs will go up, supplies will dry up. Engineers and manufacturers will lose its 

benefits and be made to switch to more expensive chemical additives. 

Maybe more oversight is warranted, but a hazard tag is not a solution. It is an impediment. This is a 

product that is needed and has a manageable life cycle. Disposal issues can be dealt with in a responsible 

manner that relies on science and not fear. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0041-1

Organization1:Texas Concrete Pipe Association

Commenter1:Bob Folser

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The Texas DOT and many Texas municipalities encourage the use of fly ash for various reasons. Among 

the numerous benefits derived from using fly ash in concrete are improved longevity, increased strength 

and enhanced durability, all of which cannot be fully replaced by alternate means. Increasing the 

longevity of our infrastructure alone has huge positive implications for natural resource conversation and 

energy savings.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0042-1

Organization1:Luminant

Commenter1:Bobby McNeeley

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

And in my 30 years with the company, I've seen great benefits from the recycling and reuse of CCRs. By 

actively pursuing opportunities to recycle CCRs, Luminant has helped decrease energy costs, reduce 

emissions, save landfill space, and use less natural resources. 

Since 1993, Luminant has sold nearly 40 billion pounds of CCRs, including 2.2 billion pounds in the last 

year alone. These products have been used by the roofing and concrete industries, as you heard, as well as 

in oilfield projects and for road paving. 

There is a long list of projects across our state that have benefitted from the reuse of CCRs from Big 

Brown and other power plants -- Luminant power plants. Here are just a few: Dallas's High Five 

Interchange, DFW Airport, State Highway 121, Radio Shack's corporate office in Downtown Fort Worth, 

City of Dallas Fire Station Number 40. 

As you can see, not just industry benefits from the reuse of CCRs. Our communities and our neighbors 

do, when they commute to work, catch a flight, or depend on emergency services.
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Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0069-1

Organization1:PMI Ash Technologies

Commenter1:Kyle Crake

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

PMI Ash is a small business with 21 employees. It's a clean technology company that focuses on fly ash 

beneficiation processes. We have developed three different ash recycling technologies. 

Our technologies currently have a capacity to produce 1 million tons of marketable fly ash per year for 

use as a replacement for portland cement in concrete. PMI has been awarded greenhouse gas emission 

credits through the Massachusetts Greenhouse Gas Initiative. We have won technical and environmental 

recognition from the EPA Southeastern Electric Exchange, the DOE, Commonwealth of Virginia, and the 

State of North Carolina.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0081-2

Organization1:Luminant

Commenter1:Barry Boswell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

The coal combustion by-products from our plants have been an integral part of construction for many 

roads across Texas, many of which are located right here in the Dallas area. This includes the Dallas High 

Five Interchange, Dallas North Tollway, the George Bush Tollway, and State Highway 121. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0119-1

Organization1:

Commenter1:Gary Gibbs

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Back when I was getting my degree in civil engineering at Texas A&M almost 37 years ago, I worked in 

the environmental engineering department there at A&M doing research on coal-fired power generation 

and specifically on coal ash. We knew that coal was going to become a big deal in Texas, and A&M 
449

wanted to understand that. They concluded that there was a very bright future, for the record, for Texas, 

and I think that future has been bright. 

When I graduated, I went on to work for the electric power industry, licensing and building coal-fired 

power plants. I've been doing that for more than three decades, working on coal ash and management of 

coal ash. I can tell you that it is one of the most studied and most well-understood recycling materials. I 

can also tell you that a tremendous amount of engineering goes into the design of coal ash management 

facilities here in Texas and that those are well-regulated by the TCEQ. 

Coal fly ash and portland cement have remarkably similar properties. Fly ash is commonly used in 

portland cement concrete to improve the quality of concrete mix, making it easier to pour and to pump. 

The end result is a stronger, longer-life concrete that wouldn't otherwise be possible. That's why the 

much-respected American Society of Testing and Materials has long had specifications for the use of fly 

ash in concrete, and that's why the Texas Department of Transportation specifies the use of coal fly ash in 

concrete for its highway projects.

Those who were working in this area early on remember clearly the waste stigma that coal ash recycling 

efforts faced at that time. We had a good story to tell, and we overcame that stigma. Today, the use of 

coal ash in concrete stands as one of the most successful recycling stories. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0023-1

Organization1:Flashfill Services

Commenter1:Doug Hernandez

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

For the past 15 years I've been involved in manufacturing and production of coal fly ash flowable fill, 

which is produced as a desirable backfill material for use in utility trenches, bedded pipelines, and other 

necessary construction requirements. 

Over the past few years our company's average purchase and distribution of coal fly ash is over 20,000 

tons per year for beneficial use. Our product has been a vital and intricate part of assisting the 

construction industry with proper placement of coal fly ash flowable backfill.

We predominantly service the numerous water districts and other agencies involved in the need for 

subsurface backfill, basically for utility repairing and replacement. 

Coal fly ash has a unique composition which allows us to manufacture a very liquid and flowable material 

with a fast curing ability. The fast curing ability offers the immediate encapsulation of the fly ash with an 

acceptable bearing capacity for completion and restoration of utility service allowing a quick return to 

public access and/or the continuation of the construction specified. 

The advantages of the coal fly ash backfill versus the traditional cement sand-based backfill provides the 

contractor a fast, economical, efficient, safe way to return a project or repair to service. 

Our advanced technology in dealing with coal fly ash is such that the fly ash is purchased, blended, and 

delivered safely. Once manufactured, it is immediately hydrated, and due to the inherent composition, the 

material immediately solidifies into a totally encapsulated material, ultimately obtaining 115 -- 150 to 

1,500 PSI within 28 days.

Response: The Agency acknowledges and appreciates the comment. 
450

Comment Number: TRANS-DEN-0028-1

Organization1:Great River Energy

Commenter1:John Weeda

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

All of Great River Energy's generation and transmission fleet are ISO 14001-registered, which commits 

us to continual improvement of our environmental practices. This continual improvement process has 

driven our successful efforts to increase beneficial use of fly ash up to 92 percent and of bottom ash from 

our coal-fired facilities. 

Coal Creek Station, CCS, fly ash is treated as a product of the station and is known as some of the best in 

the industry for its quality and consistency. It is used extensively as replacement of portland cement in 

concrete. A variety of fly ash mixes with high content of fly ash has been utilized throughout the upper 

Midwest for roads, bridges, structures, and parking lots. 

The beneficial-use program has resulted in an annual beneficial use of as much as 468,000 tons of fly ash 

from CCS, and here -- in the past 12 years decreased the demand for portland cement by over 10 million 

tons, thus avoiding at least 8 million tons CO2 from that production.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0036-1

Organization1:

Commenter1:Ed Bush

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

The benefits of using fly ash in concrete in Colorado are great. We substituted it for cement. We're 

substituting a waste product for a product that otherwise has to be manufactured at a great expense. So 

it's not only environmentally friendly because we're using a recycled material and replacing a new 

material, but it's cost-effective. 

In Colorado the aggregates that we have often react with leftover alkali in cement causing an alkali silica 

reaction that decreases the durability of concrete. Using fly ash in concrete helps eliminate the alkali 

silica reaction making concrete more durable. 

The EPA's own study shows that if fly ash is used to produce concrete, heavy metals such as mercury 

can't be leached out of it. So it's a safe use of fly ash. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0059-4

Organization1:Kansas City Power & Light

Commenter1:Fred Gustin

Commenter Type: Electric Utility Company

Classification: Substantive
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Comment Excerpt Text:

materials in more applications than in just concrete. 

Approximately 50 percent of the fly ash sold by our marketer goes into the production of concrete. The 

balance is sold for use in soil stabilization and application -- another application that we are very excited 

about, recycling old deteriorated county roads into new roads. 

In 2005, KCP&L won an award from the EPA's C2P2 program for partnering with Jackson County, 

Missouri, LaFarge Corporation, and the University of Missouri-Kansas City to demonstrate and document 

this innovative and valuable application, and a case study was featured on the C2P2 website until 

recently.

To conclude, there is simply not enough concrete produced annually in the United States to utilize 100 

percent of fly ash production. That, along with the fact that not all fly ash meets the strict quality 

requirements for use in concrete but may meet requirements for other uses, requires that EPA both allow 

and encourage other uses for these materials that can be shown to be safe. 

Comment Number: TRANS-DEN-0067-1

Organization1:Pavestone Company

Commenter1:Michael Midyett

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

At Pavestone we manufacture products; retaining walls, paving stones, and the like. We have 18 facilities 

throughout the United States and service over 40 states. We also service DOTs, state, local, and federal 

government, distribution of retail accounts. Our largest customers are Wal-Mart and Home Depot. 

In 2009 we purchased 45,000 tons of fly ash product. Product is beneficial in increasing performance, 

reducing efflorescence, and it actually lowers our manufacturing costs. Accordingly, it's provided us the 

ability to provide consumers a high quality product at a low margin. It also eliminated 45,000 tons of 

waste product which otherwise would have been dumped.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0076-1

Organization1:Fiore and Sons

Commenter1:Mike Fiore

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

My family owns and operates a real estate investment company and general contracting company in the 

state of Colorado that employs over 220 people in an Adams County enterprise zone. 

In the year 2010 these companies are expected to purchase and recycle over one million tons of coal 

combustion residuals, precipitated calcium carbonate, concrete, asphalt, and clay soils for beneficial uses 

such as structural fill, road base aggregate, asphalt products, and cement replacement. 

Recycling of construction and industrial residual materials such as those above reduce the need for 

mining resources, reduces carbon emissions resulting from transportation of newly mined materials, and 

conserves landfill space. 

Since December of '08 we've recycled over 400,000 tons of CCRs and structural fill in our industrial real 
452

estate developments. This effort has resulted in a reduced -- reduced transportation of over 137,000 miles, 

equivalent fuel savings of over 27,000 gallons of diesel or 600,000 pounds of carbon emissions. 

Additionally, over 400,000 cubic yards of landfill space and natural resource mining has been saved due 

to our use. 

Background soil tests and daily test results of the CCRs are submitted to the State of Colorado and Adams 

County to identify the presence of heavy metals, pesticides, and radionuclides. In every case, 

concentration of these substances within the CCRs has shown to be either nondetect or less than native 

soils. 

While we have never shown any constituents that exceed background soils, additional precautions are 

taken requiring that no CCRs are placed in groundwater or within 50 feet of any natural waterway. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0106-1

Organization1:Navajo FlexCrete

Commenter1:Jonathan Robertson

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Navajo FlexCrete is a manufacturer of green building products, a business wholly Navajo-owned and 

operated in Page, Arizona. NFBS products fit into the beneficial-use category of coal combustion 

residuals. We recycle or utilize recycled fly ash to produce fiber-reinforced aerated concrete. 

We brand as an environmentally sensitive and energy-efficient alternative to timber construction -- timber 

frame construction. NFBS primarily produces fiber-reinforced aerated concrete block for the construction 

of homes for the Navajo people, as a sustainable means of driving the economy as well as providing 

energy-efficient homes for the people. 

We employee Navajo community members who manufacture the material, market, and promote and assist 

other native-owned construction companies to install the product. Additionally, our marketing is also 

successfully marketed -- our product material is successfully marketed throughout the southwest for 

custom home development as well. 

We are now entering the stage of our commercial marketing phase, and our company relies heavily on the 

successful branding of our product image.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0107-2

Organization1:CTL Thompson

Commenter1:Orville Werner

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

Fly ash makes concrete more durable. It significantly decreases the cost of the amount of portland cement 

it replaces, and it lessens the amount of fly ash that has to be stockpiled or otherwise indefinitely stored. 

The benefits of fly ash in concrete are substantial for our environment. 

Improving the durability of concrete means that we don't have to rebuild the infrastructure as often, which 

means we have less waste debris to recycle or stockpile, and we don't use more portland cement in 
453

rebuilding. 

The use of fly ash to replace portland cement greatly reduces the amount of CO2 that is generated to build 

a moderately sized facility.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0004-1

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.1.1 3.1.2

Comment Excerpt Text:

I've attended all eight of EPA public hearings on the proposed coal ash disposal regulations, and I'd like to 

thank EPA for providing such ample opportunity for citizens to speak out. In all of these hearings, one 

point of consensus stands out. Coal ash disposal regulations should be improved and incidents like the 

Kingston coal ash spill should never be allowed to happen again. 

Beyond that, the citizen comments have been divided. One group of citizens has been vocal in calling for 

Subtitle C, hazardous waste designation for coal ash. This group, for the most part, has gained its 

knowledge of coal ash from large, well-funded anti-coal environmental groups. These well-meaning 

citizens end up being only partially informed, because those major environmental groups completely 

ignore options for the safe and responsible recycling of coal ash. I challenge you to find even a mention of 

coal ash recycling in any of their publications. 

The other group of citizens you've heard from is comprised of people who have spent decades doing 

what's right for the environment creating safe and environmentally beneficial uses for coal ash that keep it 

out of landfills in the first place. These people are recyclers, architects, engineers, concrete producers, 

farmers, and more. Most of them are small business people, and all of them consider themselves to be 

environmentalists, too, because they're working every day to conserve energy and materials and reduce 

greenhouse gas emissions. 

This group of citizens has been unanimous in stating that Subtitle C hazardous designation for coal ash 

will wreck recycling of the material in this country, and possibly worldwide. I urge you to remember 

these facts: Coal ash does not qualify as a hazardous waste based on its toxicity. And its toxicity is similar 

to that of the materials it replaces when it's recycled. 

The landfill engineering standards being proposed by EPA are essentially the same under both EPA's 

hazardous and non-hazardous approaches. So you're not giving the environment more protection with a 

hazardous label. Finally, EPA's non-hazard approach can be implemented years sooner giving greater 

protection to our environment now instead of later. It is absurd to state that people will want to use more 

of a material in their homes and communities if EPA considers it's hazardous waste on the property of the 

people who produced it. 

Hundreds of citizens who actually work to recycle coal ash have told you at these hearings that Subtitle C 

will not work. Please listen to the citizens who have working knowledge of this subject and remember 

that they care about environmental protection just as much as people who issue scary press releases and 

fundraising appeals that improperly label coal ash as toxic waste. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0008-1

Organization1:Boral Material Technologies
454

Commenter1:Terry Peterson

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

BMTI alone has been able to place in excess of 53 million tons of coal combustion products into 

beneficial uses over at the past 20 years. Obviously, that's 53 million tons that avoided landfills. But, just 

as importantly, that's 53 million tons of CO2 emissions that would have resulted if natural materials had 

been used in lieu of CCPs. I argue that this would never have occurred if CCRs were classified as 

hazardous or under Subtitle C. 

Further benefit of the EPA's longstanding position is reflected in BMTIs R & D program. For the past ten 

years, we've invested in excess of $30 million developing new coal combustion product applications 

outside of Ready Mix and cement. Additionally, we've developed three beneficiation processes that 

enable coal combustion products to meet performance specification when environmental modifications to 

plants are put in place for clean air. 

This is important, and the only reason it did take place is because it is not -- it is classified as a nonhazardous material. If it were classified as hazardous or under Subtitle C, I argue again that these 

investments would never take place. Again, I speak just on behalf of BMTI, but obviously, there are many 

other people in this room who have had the same -- have the same success stories. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0010-2

Organization1:Sphere One

Commenter1:Ryan Brownhill

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

We're not arguing against new engineering standards. My heart goes out to the people whose lives and 

health have been affected by the improper storage of CCRs. The EPA must take action to protect them 

and the environment. The fact is that the engineering requirements for Subtitle D and Subtitle C are the 

same. So the protections provided to those people would be the same. The states all have programs that 

are effective in hand -- handling solid waste and monitoring solid waste landfills which have significantly 

higher concentrations of known carcinogens than CCRs. 

Once we acknowledge that coal ash is going to be generated, what's the best way to make sure that people 

aren't harmed? Recycle everything we can. If we could recycle 100% of the ash that is generated, no one 

would ever have to worry about how a landfill might affect their health. I know a Subtitle C ruling will 

seriously diminish recycling. I have the letters from our customers telling us exactly that. If you don't 

want to listen to me, listen to them. 

A Subtitle D ruling protects people in the same way as Subtitle C. A Subtitle D ruling will have no effect 

on the continued efforts to find new, innovative, safe uses for CCRs. The protections are the same. The 

ability to recycle as much of this waste stream as possible is only viable with a Subtitle D ruling. 

I'm proud to work in an industry that recycles, conserves natural resources, reduces CO2 emissions, and 

create jobs. My sincere hope is that the EP -- EPA does exactly what it has set out to do: protect people 

from improper storage of CCRs and maintain the beneficial use that exists today. Subtitle D is the only 

solution that does both. 
455

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0031-1

Organization1:SEFA Group

Commenter1:Jimmy Knowles

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

We are a small family-owned and operated business with 154 employees operating in Tennessee and 

throughout the southeast and mid Atlantic states. 

Managing and marketing coal combustion residues is out only business. We market over 1 million tons of 

coal fly ash annually which recycle into concrete. We analyze and characterize fly ash in a number of 

different ways, including the quantification of trace elements and the determination of toxicity 

characteristics. 

Over the last 33 years, I have developed an intimate understanding of coal fly ash. The facts are clear. Fly 

ash is not hazardous, and therefore, the disposal of fly ash should not be regulated under Subtitle C. Fly 

ash is very similar to other competitive materials. It is not more hazardous than these other materials. 

Listing and regulating the disposal of fly ash under Subtitle C will reduce the volume of fly ash that is 

beneficially used in the United States. 

Now I'm going to give three examples of -- of how this is -- the Subtitle C proposal is currently damaging 

our -- our -- our industry. And I'm just going to summarize them. They're in -- the full information is in 

my written comments that I'll submit. 

But first off, I want to mention that importation of coal ash into the United States is actually increasing 

and people are beefing up their infrastructure to import more coal ash to the United States. Now, 

specifically, this is high value functional fillers that would be used in plastics, paints, rubbers, and other 

composites. And it's typically being done by mineral processing companies. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0037-2

Organization1:

Commenter1:Gary England

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

In 2008, the industry recycled over 10 million tons of coal ash, reducing over 10 million tons of CO2, 

saving almost 160 trillion BTUs of energy, and generating over $7 billion in economic benefit. If coal ash 

is classified as a hazardous waste, these benefits will be lost.

Response: The Agency acknowledges and appreciates the comment. 
456

Comment Number: TRANS-KNX-0039-1

Organization1:SEFA Group

Commenter1:Burt Nunn

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

We market over a million tons of environmentally-friendly fly ash which are recycled into concrete 

products and structures each year. I've worked in and around fly ash for nearly 20 years, and in that time, 

our company has recycled literally -- literally millions of tons of coal ash. And I have never witnessed, 

nor heard of anyone claiming to have gotten sick nor suffered any negative effects as a -- as a result of 

exposure to fly ash.

Fly ash has been recognized by the U.S. EPA, the U.S. Green Building Council, and LEEDS, the 

internationally recognized Green Building certification system, as a beneficial post-industrial recycled 

environmentally-friendly green product. So it strikes me as odd that fly ash would be considered to be 

classified under Subtitle C as hazardous waste for the sole purpose of giving the federal government 

control over regulating the disposal of the material. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0072-1

Organization1:Mineral Resource Technologies

Commenter1:Mike Silvertooth

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Besides being one of the full ser -- besides being a full-service marketing and management company of 

CCPs, MRT's key role is to supply our parent company, Cemex, with fly ash, bottom ash, and synthetic 

gypsum for the production of ready mix, concrete pipe, and cement in the U.S. 

Our company was recognized by EPA in regards to the C2P2 reward with the enhanced utilization of 

CCPs in 2008. Specifically, EPA recognized us for internally consuming 2.1 million tons of CCPs 

annually in our various products. We continue to be the single largest beneficial user of CCPs in the U.S. 

EPA named Cemex USA Energy Start Partner of the year for outstanding energy management and 

reduction in greenhouse gases (sic) emissions for the second year in a row in 2009 and 2010. Locally, our 

Knoxville cement plant received the Energy Star rating in 2008 and 2009 from the U.S. EPA in regards 

for demonstrating the ability to reduce energy use and protect the environment through energy efficiency. 

As you can see, our company is dedicated to operating in a sustainable manner that minimized the impact 

to the environment. The reduction of greenhouse gas is a top priority of EPA, and is also a top priority of 

our company, as well. 

The utilization of CCPs is a major portion of our in -- internal efforts to minimize greenhouse gases, and 

could very well be the single largest source or reducing CO2 year over year. With the utilization of fly ash 

in our concrete operations alone, we have reduced CO2 by up to 1.6 million tons annually while, at the 

same time, improving the quality and useful-service life of our concrete. 

Also, we continue to use CCPs as raw-feed replacement for mined virgin materials for the production of 

Portland cement. By utilizing CCPs in our cement operations, Cemex sib -- substitutes a portion of the 

mined raw materials, such as clay, shell, and natural gypsum. This enables us to re -- conserve natural 

resources, for (sic) land disturbances, and reduce CO2 for mining operations. At the same time, this 
457

reduces the amount of CCPs disposed at power plants and avoids the CO2s generated from the disposal 

activities. 

Prior to utilize -- utilizing any CCP for raw feed, the material must be tested for total minerals, TCLP 

metals, and, in some cases, TCLP organic. The test results must conform to all federal and/or state 

regulations in order to be used in our operations. No material defined as hazardous waste in Title 40, 

Code of Federal Regulations, Subtitle 261 can be used in any manner. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0074-3

Organization1:Full Circle Solutions

Commenter1:Tyler Farrar

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

In our grain and reusable society, it is in our best interest to continue to reuse products, such as CCRs, 

that help us live more productive and enjoyable lives. CCRs directly and directly contribute over $4.5 

billion annually to the United States economy and thousands of jobs. In the current state of our economic 

situation, a Subtitle C classification would devastate small businesses and individual towns that depend 

on our industry for survival. 

Many people pride themselves on efforts to recycle paper, glass, cans, and cardboard. These recycle 

strategies are employed widely in the United States to help cut down the need for landfills and conserve 

limited reser -- sources. 

Please allow us to continue this tradition by keeping CCRs as Subtitle D. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0129-1

Organization1:PowerSouth Energy Cooperative

Commenter1:Keith Stephens

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

PowerSouth owns and operates the Charles R. Lowman power plant in Leroy. The Lowman plant 

produces about 125,000 tons of coal ash annually. 75% of that is in beneficially used in the cement 

industry. Furthermore, the Lowman plant uses -- produces 78,000 tons of gypsum annually, of which 

100% is beneficially used. That's over 172,000 tons of material that did not end up in a landfill. 

Response: The Agency acknowledges and appreciates the comment. 
458

Comment Number: TRANS-KNX-0195-3

Organization1:SEFA Group

Commenter1:John Castleman

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Fly ash has been used beneficially in construction applications for thousands of years. These applications 

have demonstrated the safe, reliable use of fly ash and the lack of any hazardous issues associated with 

the applications. Beneficial use of fly ash results in lower costs of production, reduced raw materials, 

reduced greenhouse gases, increased quality of projects -- products, among many other benefits. If fly ash 

is regulated under Subtitle C under any name, this use and these benefits will be eliminated. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0006-1

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

I have attended all of the EPA public hearings on coal ash disposal so far and have listened as many 

people have challenged you to get tough with coal ash and inflict the most draconian regulation possible. 

Today, I would like to give you a different challenge, the challenge to do the best thing for the 

environment. 

The proposed regulations we're talking about today are under the authority of the Resource Conservation 

and Recovery Act. The EPA office conducting these hearings has "conservation and recovery" in its 

name. Unfortunately, there is little or no focus on conservation and recovery in this regulatory proposal or 

by this administration's EPA in general. 

Previous EPAs under both Democrat and Republican administrations have concluded that coal ash does 

not warrant regulation as a hazardous waste. Furthermore, EPAs under both Democrat and Republican 

administrations previously worked to put conservation and recovery first through programs like 

Comprehensive Procurement Guidelines and the Coal Combustion Products Partnership, also known as 

the C2P2 program. All of these efforts recognize that coal ash is a valuable resource that can be recovered 

and used rather than disposed in landfills and impoundments, a handful of which have performed 

inadequately and brought us here today. 

EPA Administrator Lisa Jackson has called for common sense coal ash disposal regulations. Well, 

common sense says it's better to safely use something instead of throwing it away. Common sense says 

it's better to conserve natural resources by using a recovered material rather than mining or manufacturing 

new ones. Common sense says conserving energy and reducing greenhouse gas emissions by millions of 

tons each year are environmental benefits worth protecting. And common sense says people will not want 

to use a material on their own property if it is considered hazardous waste on the property of the person 

who made it. 

Response: The Agency acknowledges and appreciates the comment. 
459

Comment Number: TRANS-LVL-0010-2

Organization1:

Commenter1:Craig Wallace

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

Coal is not going away anytime soon. Population growth is increasing our demand for affordable energy. 

So the best thing to do is to safely recycle as much coal ash as possible until renewable energies are 

competitive in a free market. 

Subtitle D allows us to continue to promote coal ash beneficial use. EPA support for coal ash recycling 

has been invaluable in changing people's skepticisms and perceptions. It is disheartening to see the EPA 

and other knowledgeable people who know the truth about coal ash toxicity push Subtitle C at great risks 

to future coal ash beneficial uses. 

The goal for most in this room is to improve coal ash disposal methods, to improve our public safety and 

protect our environment. Let's fix the problem without destroying an industry that offers numerous 

benefits to society, and most of all keeps coal ash from being disposed of in a landfill in the first place. 

Subtitle D is the right choice for the environment. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0016-2

Organization1:National Ready Mixed Concrete Association

Commenter1:Terry Jones

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Fly ash is by far the most widely used supplementary cementitious material used in ready-mixed concrete. 

Without the use of re -- fly ash in concrete, the -- the cost could be enormous to local consumers who are 

already struggling and a healthy increase to jobs already in -- in the process. 

Environmental benefits of the use of fly ash in ready-mixed concrete results in longer lasting structures, 

reduced amounts of waste materials sent to our landfills, (less) raw materials are extracted, less energy 

required for production and less air emissions, which include carbon dioxide. 

Having fly ash, not being labeled as a hazardous products (sic), hazardous product, hazardous substance 

or hazardous waste allows the overall carbon footprint of ready-mixed concrete to be considerably 

reduced. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0018-1

Organization1:Synthetic Materials (SYNMAT)

Commenter1:Phil Disney

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:
460

For the past eight years I have worked for Synthetic Materials, managing a wide variety of projects 

related to the recycling of FGD gypsum. Coal combustion by-products or residues, the heavy metal must 

be measured in parts per million. The ul -- the utilization of FGD gypsum and coal ash in cement or other 

pozzolanic reactions, it's usually a level of heavy metal fixation and allows permanent and safe utilization 

of these valuable minerals -- minerals in a -- in a structural purposes. 

SYNMAT de-waters over 3 million tons of gypsum annually, primarily for wallboard and the cement 

industry. Millions of homes now contain materials made out of FGD gypsum. Recycling of these valuable 

minerals has reduced the cost of homes and its construction and eliminated the need for open -- opening 

new mines and landfills. 

Recycling of FGD or other coal combustion by-products as a hazardous material would be an illogical 

and overreaction to the presence of trace amounts of metals in the scru -- in the scrubber by-products. 

FGD gypsum utilization continues to expand in other areas, including agriculture. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0039-1

Organization1:Boral Material Technologies

Commenter1:Terry Peterson

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

BMTI alone has been able to place in excess of 53 million tons of coal combustion products into 

beneficial uses over the past 20 years. Obviously, that's 53 million tons of avoided landfill. But, just as 

importantly, represents an avoidance of 53 million tons of CO2 emissions that would have bec -- resulted 

if natural materials had been used. This type of success would never occur if CCRs were classified under 

Subtitle C. 

Further benefit of EPA's longstanding position is reflected in the BMTI R&D Program. Over the past ten 

years, we have invested in excess of $30 million developing new CCP applications outside of ready 

mixed and cement. Additionally, we developed three beneficiation processes that enable CCPs to meet 

performance specifications, if CCP quality is compromised if power plant modifications to reduce NOX, 

SOX and mercury are installed. None of these investments would have occurred if CCRs were classified 

under Subtitle C.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0055-1

Organization1:Vectren Corporation

Commenter1:Angila Retherford

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Vectren's CCRs are beneficially reused in concrete and wallboard applications. Vectren generates over 

300,000 tons of coal-combustion residuals each year. Of those 300,000 tons, Vectren collects and markets 

nearly 100% of its fly ash to a cement-production plant in St. Genevieve, Missouri. That's 300,000 tons of 

fly ash that's no longer back hauled to a surface coal mine or placed in landfills. Vectren also collects and 

markets over 50% of its scrubber byproducts as synthetic gypsum.
461

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0059-1

Organization1:Pearce Ready Mix Concrete Company

Commenter1:Brian Harper

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

For years, federal, state, and local governments, along with various environmental organizations, have 

stressed to businesses and individuals the need for recycling and reusing products' waste and materials. 

Based on their educational efforts and scientific information, the entrepreneurial strength of our country 

and the world have built and evolved entire businesses to aid and assist with the reuse and recycling of 

many hundreds of different materials with coal fly ash being one of these products. 

The ready mix Concrete industry is a user of coal fly ash. Most construction projects include ready mix 

concrete in buildings, homes, apartments, hospitals, schools, shopping centers, grocery stores, roads, 

bridges, and other items. 

Ready mix concrete typically includes some percentage of fly ash. Using fly ash in ready mix concrete 

provides many benefits, not only the recycling of the fly ash material, but also to the quality, durability, 

and economy of all of the above-mentioned building projects. Professional designers who say fly ash has 

many benefits and cost effectiveness typically specific the use of fly ash in most construction projects.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0071-1

Organization1:Commerce Lexington

Commenter1:Tyler Campbell

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.2 9.3.7 4.1.1

Comment Excerpt Text:

Again, for -- for the members of my organization, the -- we represent electric utilities, power plants, and 

we also have a rep -- representation of ash marketers. The materials that these are -- that coal ash used for, 

and -- and has been stated here today, include cement and concrete applications. They're found in 

highway constructions programs and wallboard manufacturing, drywall. And all of this can be used to 

reduce the volume of disposed waste without endangering health and -- human health and the 

environment. 

The regulation of and the disposal CCRs under RCRA's hazardous waste rules, even with an exemption 

for beneficial use, could have a dedest -- a devastating impact on CPR -- CCR beneficial use because of 

the stigma associated with regulating any CCRs under the hazardous waste program. 

Given the overwhelming economic challenges confronting all sectors of the U.S. economy, we honestly 

believe that it's absolutely critical the EPA and the state come to a resolution regulating coal ash under 

Subtitle D in -- in an effort to work with the states, and not impose unnecessary regulation and controls on 

the electric power industry. And that would drive -- serve to drive up cost for the business community and 

con -- and residential consumers

Response: The Agency acknowledges and appreciates the comment. 
462

Comment Number: TRANS-LVL-0075-1

Organization1:University of Kentucky Center for Applied Energy Research

Commenter1:Jack Groppo

Commenter Type: Academia

Classification: Substantive

Other Sections: 10.5.1

Comment Excerpt Text:

My name's Dr. Jack Groppo, and I'm a senior engineer at the University of Kentucky Center for Applied 

Energy Research in Lexington, Kentucky. I've invested the past 15 years of my career on research and 

development projects focused on increasing the amount of coal combustion byproducts recycled in 

construction and consumer products. 

As a result of these efforts, I'm the proud recipient of two coal combustion partnership achievement 

awards by EPA given for innovation and education. This program was initiated by EPA to recognize 

achievement for advancing the environmental, economic, and performance benefits of reusing and 

recycling coal combustion products. Unfortunately, this program has been suspended pending the 

outcome of the current classification review. 

It's my honest opinion as both a concerned citizen and informed scientist that change in the classification 

of fly ash from non-hazardous -- to hazardous would cause irreparable harm to the years of progress made 

by one of the most successful recycling programs in the world. The loss of utilization markets would be 

devastating to the ash utilization industry, resulting in the loss of hundreds of skilled jobs. 

Additionally, the cost of concrete will undoubtedly rise, and more expensive sources of raw material will 

need to be used since the concrete industry has already stated that it simply will not use a material labeled 

as hazardous. 

Labeling coal combustion products as hazardous would require EPA to reverse not one but two previous 

informed decisions made in 1993 and 2000 after exhaustive technical evaluations. It's all documented, 

that the chemical constituents of coal ash are commonly found in many everyday products and naturally 

occurring soils. As such, reclassification as hazardous would be a decision not based on any cri -- credible 

scientific evidence whatsoever. 

If coal ash was actually hazardous, why would numerous countries throughout Europe and the Middle 

East actually import thousands of tons annually? 

Tens of millions of dollars have already been invested in commercial ash beneficiation processes that 

transform ash into a variety of high-quality -- quality recycled products for which markets have already 

been developed. Numerous other process installations are ready to be initiated, but commercial --

commercialization activities have been tabled awaiting a final decision by EPA. 

I urge you to consider the facts before rendering a decision. Coal ash is a useful and necessary material 

that is vital to sustainable construction. And yes, it is -- I certainly use it in my vegetable garden. The 

facts clearly show that coal ash is not hazardous, and changing the classification is not going to change 

the facts. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0009-1

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:
463

One of the justifications frequently cited for enacting new rules for coal ash disposal is that the material is 

less regulated than household waste. The implication of this statement is that coal ash is somehow more 

dangerous than household waste. 

In fact, household solid waste commonly contains all of the metals that are frequently cited as concerns in 

coal ash. Additionally, household waste contains a wide variety of toxic, corrosive and poisonous 

materials that are not present in coal ash. Household waste is flammable and produces explosive gases 

such as methane. Coal ash does not. Household waste is biologically active. Coal ash is not. Household 

waste attracts birds and rodents that can transport pathogens offsite. Coal ash does not. 

Despite its much greater hazard potential, household waste is successfully managed through RCRA 

Subtitle D, under which the federal EPA establishes national disposal standards that are administered by

the states. This success story shows that EPA can improve coal ash disposal regulations in the United 

States without going to the extreme of declaring coal ash a hazardous waste. 

It is worth noting that the proposed landfill engineering standards are essentially the same in both of 

EPA's proposed regulatory approaches. The Subtitle D nonhazardous and Subtitle C hazardous 

approaches both call for single liner systems, groundwater monitoring and the effective elimination of wet 

impoundments. It's also worth noting that these standards are consistent with Subtitle D landfill 

engineering. 

EPA's Subtitle D nonhazardous approach is fully protective of human health and the environment, can be 

implemented years sooner than the Subtitle C approach, and avoids the creation of a hazardous waste 

stigma that will devastate coal ash recycling. 

Just as many parts of American's household waste stream can be safely recycled, coal ash can be put to 

good use rather than disposed in landfills and impoundments. Using coal ash in a variety of building 

materials and construction and agricultural applications offers many benefits -- including reduced landfill 

construction, conservation of natural resources, and reductions in energy use and greenhouse gas 

emissions

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0013-2

Organization1:Association of Canadian Industries Recycling Coal Ash

Commenter1:Anne Weir

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

We know Coal Ash use reduces our environmental footprint: Coal Ash in concrete produces more 

sustainable, more durable structures. This is not academic, it's proven in practice to the extent that both 

our national Green Building Councils enshrine Coal Ash in their leadership in energy efficient design 

criteria. 

Both our governments quantify Coal Ash's CO2 emission reductions in 100s of 1000s of tons per year. 

Canada's national building specification also cites Coal Ash as a means to reduce GHG emissions, and 

conserve energy and resources. 

Our experts, like yours, work with national standards organizations to product specs that ensure coal ash's 

proper application to improve life-cycle performance of our infrastructures. 

These benefits are in such demand that cross border trade of Coal Ash is considerable. This is in step with 

the international community, where global leaders address Coal Ash in policy, legislation and regulation: 

The World Customs Organization defines it as mineral in origin. The International Energy Agency 

identifies it as key to reducing global emissions. The European Commission clarifies legalities by 

distinguishing waste from by-products and products. Australian regulators work with their Ash industry 
464

to qualify Coal Ash for un-encapsulated uses. 

Clearly a recyclable mineral resource, the international community values Coal Ash, and recognizes 

proper storage and management are key to its beneficial use. The waste of Coal Ash occurs with failures 

to capitalize on its value to end of useful life. 

Canada doesn't classify CCP's hazardous. We're advised that Environment Canada has no intention to 

change that. Our capacity to recover Coal Ash from landfills must be safeguarded, to reduce 

environmental impacts and conserve resources. Rushing Coal Ash to an early grave is short-sighted. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0030-1

Organization1:Boral Composites

Commenter1:Greg Glander

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Boral Composites, Inc. is a new, start-up business focused on the manufacture of green building products. 

As a new start up, we are just now commercializing our first product line, which has been engineered to 

be roughly 80 percent recycled and bio-based, rapidly renewable content. A critical component in our 

product is a particular type of coal combustion residual, which not only offers improved performance, but 

also helps to provide this exceptionally high level of green content. Our business is based on selling green 

building products to both the construction industry and the consumer.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0031-1

Organization1:Separation Technologies

Commenter1:Thomas Collins

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3 10.4.6

Comment Excerpt Text:

Separation Technologies process and markets fly ash are up in the Northeast in the Eastern United State 

and is utilized by the concrete industry. Because of ST's proprietary technology, this fly ash would 

previously be bound for a landfill and now it can be used and recycled for concrete products. 

This year, and you've heard this before, 15 million tons of fly ash will be recycled in concrete. I visit with 

concrete producers each and every day and a vast majority of them fear the negative impact that Subtitle 

C would have on their industry, specifically to the hazardous designation. Even with the beneficial use 

included, they still fear that. 

As a gentleman said before, let me assure the negative stigma surrounding or hazardous designation of 

Subtitle C is real. Many of my producers say they will stop using it just on the liability standpoint. I really 

feel you should consider that for finalizing the regulations. 

Secondly, concrete producers utilize fly ash for a number of reasons, specifically, to reduce cost and to 

improve overall performance. Also, fly ash is a vital construction material. It will not only increase 

construction costs, but will impact the durability of our infrastructure. Thank you and please know that I 

am opposed to Subtitle C. 
465

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0033-1

Organization1:Boral Material Technologies

Commenter1:Terry Peterson

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

I would like to open my statement by commending the EPA for supporting and maintaining a Subtitle D 

classification for CCRs since the enactment of the Bevill Amendment in 1980. That support has 

underpinned the establishment and development of arguably the most successful recycling program in 

U.S. History. BMTI alone, with this support, has been able to place in excess of 53 million tons of coal 

combustion products into beneficial uses over the past 20 years. Obviously, that's 53 million tons of 

avoided landfill space, but just as significantly, represents a corresponding offset of 53 million tons of 

CO2 emissions that would have resulted if natural materials had been used in lieu of coal combustion 

products. The further benefit of EPA's support of Subtitle D is reflected in the BMTI's R&D program. 

Over the past 10 years, we have invested over $30 million developing three new coal combustion 

products applications outside of ready-mix and cement. Just as importantly, we developed three 

beneficiation processes that enable coal combustion products to meet performance specifications if those 

products are compromised when power plant modifications necessary to reduce NOx, SOx and mercury 

are installed. These investments would not have occurred if CCRs were classified under Subtitle C.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0069-1

Organization1:FirstEnergy

Commenter1:Ray Evans

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

About 30 percent of combustion byproducts from our coal-based facilities are utilized annually in 

recycling applications, including the manufacture of gypsum wallboard and concrete. These efforts 

support hundreds of businesses and thousands of jobs while reducing the need for additional landfill 

space. 

We developed and operate one of the world's largest gypsum recycling facilities at our Bruce Mansfield 

Plant. Each year, we provide nearly half a million tons of gypsum to National Gypsum for wallboard 

manufacturing. This world-class operation, built in 1999, specifically diverts CCRs from disposal while 

providing needed local jobs in the Shippingport, PA, area. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0073-1

Organization1:American Bituminous Power Partners

Commenter1:Craig Cierra

Commenter Type: Electric Utility Facility

Classification: Substantive
466

Other Sections: 9.5.2

Comment Excerpt Text:

The Power Plant takes bituminous waste coal or refuge at abandoned mine sites and turns it into energy. It 

uses multiple sites all over north central West Virginia. The facility then reclaims the mine sites. It does 

this primarily by backfilling with ash from the power plant to replace the waste coal removed. The State 

of West Virginia has deemed ash from circulating fluidized bed boilers like Grant Town as a beneficial 

use product. It mitigates acid mine drainage from the old waste sites. It does this due to the high calcium 

content in the ash which neutralizes the acid in the drainage from the waste site. Deeming our ash as 

hazardous would eliminate AMBIT's ability to reclaim waste bituminous coal sites. The site has 

reclaimed 200 acres to date, and has at lest that much land currently slated to reclaim over the next 10 

years. 

The Grant Town Power Plant annually provides property taxes of a half million dollars. It pays state B 

and O taxes in the amount of 300,000 dollars. It pays another 120,000 dollars in other state and local 

taxes. Ambit pays almost a million dollars a year in taxes. 

The plant provides 66 direct full time positions. It also creates 221 spin off or indirect jobs. The power 

plant has a 4 and a half million dollar impact to the state and local economy in products and services 

outside of the jobs it creates. 

AMBIT is a marginal fiscal project. We receive a rate for our energy that offsets the local utilities cost to 

create energy. We are net neutral to the ratepayers of West Virginia. Our power purchase agreement does 

not allow us to recover or pass on the cost of ash as a hazardous material. The conservative estimate is our 

costs will raise 50 times what they currently are or 40 million dollars. This would be equal to our current 

budget in all other areas combined. 

This regulation would be detrimental to the Grant Town Power Plant. The plant would no longer run. The 

jobs would go away. The money to business in West Virginia would be gone. Taxes no longer paid. 

Reclamation of abandoned mine sites would be the responsibility of the people of West Virginia. 

This proposed regulation would be bad for the Grant Town Power Plant, bad for Marion County, and bad 

for the state of West Virginia.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0085-1

Organization1:Separation Technologies

Commenter1:Jim Bittner

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Separation Technologies separates unburned carbon from fly ash and sells the low carbon ash to concrete 

producers as a cement replacement. ST's ash recycling business has many environmental and economic 

benefits: 

Over the last 10 years, more than 10 million tons of ash have been sold for use in concrete and not been 

disposed in landfills.

Consequently, cement production and CO2 emissions have been reduced by more than 10 million tons. In 

addition, more than 100 well-paying jobs have been created. 

Since 2000 when the EPA issued its final regulatory determination that coal ash does not warrant 

regulation as a hazardous waste, ST has invested more than 100 million dollars in its fly ash recycling 

business.

Response: The Agency acknowledges and appreciates the comment. 
467

Comment Number: TRANS-PIT-0092-1

Organization1:Separation Technologies

Commenter1:Kyle Flynn

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

As the rate of coal-fired power generation, and thus volume of coal combustion byproducts has grown, so 

has the industry to safely beneficiated this material. Separation Technologies, and many others, have 

developed processes to convert coal ash into a product that can be safely used in concrete production. 

Once coal ash has been recycled into concrete, no danger of ash spills or heavy metal leaching exists. In 

short, this process is safe. The avoidance of coal ash entering a landfill, and the carbon dioxide emissions 

offset from the cement replacement are tangible benefits as well

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0110-4

Organization1:Consol Energy

Commenter1:Steven Winberg

Commenter Type: Other Company

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

Our fourth and final concern relates to the 44 percent of CCRs recycled into beneficial uses including 

road construction material, replacement for Portland cement and construction grade wallboard. These 

beneficial use industries employ about 4,000 people. Also, it's worth noting that for every ton of Portland 

cement avoided by using CCR, one ton of CO2 is also avoided. If CCRs become regulated as hazardous 

waste under RCRA Subtitle C, even if CCRs for beneficial use are excluded, the use of CCRs will drop 

dramatically because of the long-term potential liability. The consequence of this will include loss of 

employment, increased cost of electricity due to higher disposal costs, more hazardous waste site 

development and an overall greater drain on natural resources needed to replace these CCRs.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0115-1

Organization1:American Concrete Pavement Association

Commenter1:Mark Snyder

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Concrete paving comprises a major portion of our nation's transportation infrastructure. In 2009, nearly 

70 million square yards of concrete pavement were placed in the U.S. That is almost enough to build a 

four-lane concrete highway from coast to coast. Most of that concrete contained fly ash as a partial 

replacement for cement, in amounts from typically 20 to 25 percent. Why? Because fly ash makes the 

concrete better -- it chemically combines with cement hydration products to make it stronger and more 

durable so that concrete pavements can carry more and heavier loads while requiring less frequent repairs. 

Fly ash is also less expensive than cement, so it saves taxpayer and owner dollars. And it makes concrete 

greener -- more sustainable -- by providing a high-value use for a waste product that might otherwise end 
468

up in landfills. 

Typically 92 percent of concrete by volume is comprised of materials that have a low CO2 footprint. By 

substituting fly ash for cement, we reduce the carbon footprint of concrete by reducing the volume of 

cement used in the production of concrete. 

There is a great deal of federally produced literature documenting the many benefits and advocating for 

the use of fly ash in concrete. One notable example is titled Using Coal Ash in Highway Construction: A 

Guide to Benefits and Impacts, and it was published by the EPA in April 2005. With the help and support 

of the EPA and the Federal Highway Administration, huge advancements have been made to maximize 

the utilization of fly ash in concrete in recent years.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0117-1

Organization1:Ohio Ready Mixed Concrete Association

Commenter1:Gregory Colvin

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Fly ash is a fine powder-like material generated from the coal burning electric power plants. Fly ash, by 

nature, is high in silicates, making it a valuable raw material in the manufacturing of many concrete 

products, including ready mix concrete, concrete block, and precast concrete. It is known as a 

supplementary cementitious material or SCM. Fly ash is used to substitute a portion of the Portland 

cement required to manufacture concrete. Fly ash enhances the strength and long term durability of 

concrete. 

Concrete is the most widely used and versatile product in the construction industry. The production of 

Portland cement results in CO2 being emitted into the atmosphere. Using fly ash as a substitute for a 

portion of the Portland cement required to manufacture concrete, reduces the amount of CO2 emitted. The 

2008 production and use survey revealed that approximately 14 million tons of fly ash was used in 

concrete products. Survey have shown that for each ton of Portland cement produced, we are reducing the 

greenhouse gases emitted, and helping our environment. Therefore, we need to increase the amount of fly 

ash used in our industry, not reduce it. Reducing the amount of fly ash used in the production of concrete 

products would inevitably increase the amount that would have to be land filled, further harming our 

environment.

Response: The Agency acknowledges and appreciates the comment. 

Section 10.2.2.1 - Unencapsulated uses: EPA seeks comment on whether to regulate and most 

appropriate regulatory approach for, e.g., unencapsulated uses of CCRs on land (35164-35165)

Total Number of Submissions: 22

Total Number of Comments: 34

Comment Number: TRANS-CHI-0137-1

Organization1:USC Technologies

Commenter1:Richie Benninghoven

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.3.2.1 10.3.2.2

Comment Excerpt Text:
469

We're a small company that uses self- cementing, self-encapsulating fly ash to stabilize underground 

limestone mines to provide structural support to make the surface safe. If this work is not done, here is 

what can happen. Collapse of the road made it impassable. 

These limestone mines, even though they are below the water table, are very restrictive to groundwater 

flow with permeabilities of 10-7 to 10-8 centimeters per second. We have had groundwater monitoring 

wells in place at one particular project for over 14 years. Test results showed no increase in heavy metal 

concentrations in the groundwater since ash placement began. This confirms the very protective situation 

of using self-encapsulating fly ash and being surrounded by very impermeable bedrock. 

Here is a picture of the underground limestone mine before being backfilled. And here is what it looks 

like after it's backfilled. These are all the fly ash layers. That's actually, we dug out a berm and it's 

standing at a negative one to one slope. So, it's very well cemented in there and strong. 

The stabilization of fly ash over this site has resulted in nearly $200 million of development on the 

surface such as this Class A office building. 

I urge the EPA to handle non-coal quarry applications in large scale fills such as ours similar to coal mine 

applications that would most likely use an ash characterization and site characterization approach to 

determine that an application is safe. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0141-2

Organization1:Save the Dunes Council

Commenter1:Larry Davis

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 10.5.1.5

Comment Excerpt Text:

The USEPA must also consider RCRA Subtitle C regulation on many other toxic Bevill exempt wastes 

disposed in a similar fashion in sensitive locations. For example, the millions of tons of steel mill waste 

along the shores of Lake Michigan that similarly threaten additional contamination of our fresh water 

supply with dissolved solids and heavy metals. And heavy metals are elements, they are neither created 

nor destroyed and they bio- accumulate.

In Indiana, the deleterious impacts of toxic coal combustion waste may readily be found anywhere anyone 

seriously investigates the dumping of these exempted wastes. From residential yards, town roads and 

landfills in Pines, Indiana to the coal mines themselves in Southern Indiana, toxic coal combustion waste 

disposal sites exist in some of the worst situations you can find concerning human health in our 

environment. Toxic coal combustion wastes have been discarded, disposed of and dumped in bridge 

embankments, impoundments, lagoons, landfills, mines both active and abandoned, roads, piles, ponds, et 

cetera, and locations that have little or no monitoring and poor containment for the toxic elements and 

radioactive constituents present in these wastes. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0095-6

Organization1:San Juan Coal Company

Commenter1:Paul Nazaryk

Commenter Type: Beneficial User

Classification: Substantive
470

Comment Excerpt Text:

And finally, we do not believe that there's a need to regulate unencapsulated beneficial uses of this 

material. This would only work to discourage its current widespread use in agriculture, road construction, 

as a building material, and as an ingredient in concrete

Response: The Agency acknowledges and appreciates the comment. 

Section 10.2.2.2 - Encapsulated uses, including cement, concrete, bricks, other concrete products, 

wallboard, roofing materials

Total Number of Submissions: 22

Total Number of Comments: 33

Comment Number: TRANS-ARL-0118-1

Organization1:Synthetic Materials LLC

Commenter1:Michael Beck

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

Synthetic Materials is a small business that will directly and negatively be impacted by a Subtitle C 

determination. Our primary customer base is for our washed and dried FGD gypsum that consists of 

wallboard and cement manufacturers. In the wake of the current economic recession, our customers are 

facing an extremely difficult present and an even more challenging and unknown future. With 

construction demand at historically low levels and the housing market struggling to show signs of life, our 

customers are forced to operate their plants at levels as low as 30 percent of their capacity. The market 

situation has forced plant closures, layoffs and investment stagnation. 

The above climate alone has created a very difficult way forward for SYNMAT's marketing department, 

and with the potential for FGD gypsum to be unfairly regulated as a hazardous waste despite being 

labeled a special waste, the potential to completely lose our customer base and suppliers is very real. We 

have both customers as well as suppliers refusing to move forward with contractual and other 

commitments made to SYNMAT not because of current market conditions or any perceived stigma of 

Subtitle C determination, but because of the real liability concerns that come with an absolutely 

unnecessary hazardous waste classification for coal combustion byproducts. 

For our wallboard customers especially, the compounding of the terrible housing market, the Chinese 

wallboard problems, the still remembered asbestos issue and the addition of classifying a major raw 

material as a hazardous waste creates a perfect storm that will severely hurt market recovery and potential 

for the overall health of the U.S. economy. 

The appropriate response is the proposed Subtitle D option. The catalyst to this discussion was a failed 

coal ash retention pond and not a hazardous waste. A proportional response is necessary to maintain a 

stable market for beneficial reuse and to significantly reduce the risk of such an accident again. That 

proportional response is Subtitle D

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0079-1

Organization1:Elite Aggregates

Commenter1:David Shulman

Commenter Type: Beneficial User

Classification: Substantive
471

Comment Excerpt Text:

I'm going to talk, just like the gentleman before, about the economics of it. If we have fly ash today and 

bottom ash -- since my main concern is the bottom ash -- part of it -- if it meets TCLP and the RCRA 

standards as stated in 2009 standards for hazardous waste material, that means that bottom ash becomes a 

nonhazardous waste and beneficial-use material. 

If we go and declare that as hazardous waste material, then we cannot building any building, any roads, 

use it in any concrete in the United States as it stands today, because concrete under -- cement under the 

patent of 1809 uses bottom ash as 80 percent of its material use. 

So if you're going to declare bottom ash a hazardous waste material, then you're going to declare cement 

as a hazardous waste material. And if you're going to declare cement a hazardous waste material, then 

you're going to consider concrete as a hazardous waste material. 

And then we can't build. We can't drive. We can't walk. We can't have buildings. We can't have the 

standard of living we have today. 

And then EPA has to go and do the reclamation of the concrete because it's then declared a hazardous 

waste material. So all of our buildings and houses will be torn down

Response: The Agency acknowledges and appreciates the comment. 

Section 10.2.3.1 - Small-scale fill operations (not large-scale fill operations or sand/gravel 

pits/quarries and not mines/minefills)

Total Number of Submissions: 9

Total Number of Comments: 10

Comment Number: TRANS-CHI-0082-1

Organization1:Paul Koziar Consulting, LLC

Commenter1:Paul Koziar

Commenter Type: Other Company

Classification: Substantive

Other Sections: 10.4.2 4.1.1

Comment Excerpt Text:

EPA's Draft Rule seems to prefer regulating the material under RCRA Subtitle C which relies on strict and 

administratively burdensome approach that is not required by the level of risk posed by coal ash when 

beneficially used. I believe this will discourage beneficial use and believe proper regulations under RCRA 

Subtitle D will be adequate. 

Why do I say this? It has been my experience as a regulator responsible for implementing NR 538 that an 

effective program can be developed to protect public health if it is based on a simple and common sense 

and balanced approach. 

When NR 538 was originally designed and adopted in 1998, it was done with the cooperation of all 

stakeholders. The resulting program included material assessment, locational criteria to protect 

sensitive environments, public health, and engineering criteria to ensure proper design and 

construction, and post beneficial use monitoring activities. It also provided flexibility to try new and 

innovative approaches while saving money and conserving natural resources without risk to the public 

health and the environment. 

I believe NR 538 provides a successful model that EPA should follow with regard to beneficial use. One 

particular example of the cooperative approach is the success story with our Wisconsin Department of 

Transportation. They have embraced the use of coal wherever possible for structural fills, for roadways, 

bridges and embankments. These projects have been implemented according to the most strictest 

designs of engineering and environmental protection. However, in order to get contractors building 
472

these projects and comfortable with the use of these materials, the Wisconsin legislature had passed a 

law in 2002 to limit the liability of the use of this ash under NR 538. This success in economically building 

public infrastructure in Wisconsin could not have occurred without these byproducts being designated 

as a hazardous waste. 

The current EPA proposal to prohibit structural fills such as these transportation and infrastructure 

improvements will be a severe setback for projects that are critically needed. EPA should develop 

specific standards and criteria under Subtitle D that will enable these projects to continue to generate 

savings and benefits for the public Response: The Agency acknowledges and appreciates the 

comment. 

.

Comment Number: TRANS-LVL-0154-3

Organization1:E.ON U.S.

Commenter1:Mike Winkler

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

The EPA should also avoid interfering with continued beneficial reuse of CCRs either through regulation 

under Subtitle C or potential restrictions on structural fill or other applications that involve placement of 

CCRs on the land. LG&E and KU have extensive experience with structural fill projects undertaken in the 

environmentally responsible manner. The Kentucky CCR regulations have appropriate restrictions which 

include prohibitions on placement of CCRs near streams or other sensitive areas. 

Most structural fill projects involve use of CCRs in the construction of buildings, roadways and parking 

lots. As a practical matter, pavement or the building structure itself generally provides the level of 

encapsulation. Considered -- considering the limited volumes of CCRs generally used in such projects, 

they are unlikely to pose significant risks to the environment. Restricting beneficial reuse involving 

structural fills would substantially reduce beneficial reuse because the cement and gypsum markets 

could not absorb the extra quantities of CCRs. 

Response: The Agency acknowledges and appreciates the comment. 

Section 10.2.3.2 - Agricultural applications, including FGD gypsum

Total Number of Submissions: 19

Total Number of Comments: 27

Comment Number: TRANS-CHI-0024-1

Organization1:WeCare Technology Group

Commenter1:Michael Nicholson

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Our comments today are in support of EPA's consideration to retain the Bevill Amendment for the 

beneficial use of coal ash in agronomic applications or reclamation applications where the resulting 
473

combinations of coal ash and biosolids are converted to products which meet or exceed the 40 CFR Part 

503 requirements for land application of residuals. WeCare would place emphasis on the practice of 

following strict managerial practices commensurate with 40 CFR Part 503 and appropriate agronomic 

rate. 

Based upon the discussion presented to date by EPA, WeCare believes that EPA remains in support of the 

agronomic and economic benefits derived from the proper use of coal ash as an agronomic commodity 

and believes that significant documentation from land grant universities as well as USDA confirms EPA's 

position. 

WeCare is an end user of coal ash material. WeCare typically is not a manager of coal ash directly from 

utilities. We typically purchase coal ash from coal ash managers or brokers, so to that end WeCare's 

concerns are focused upon the availability and ability to beneficially utilize coal ash in agronomic use 

applications.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0037-2

Organization1:Gypsoil

Commenter1:Ron Chamberlain

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

In conclusion, responsibly applied to agriculture soil FGD Gypsum contributes significantly to improve 

sustainable agriculture and improvement in the environment. A hazardous designation of Gypsum would 

stop this beneficial use in American agriculture and, therefore, take away the opportunity to help the 

environment in so many ways. I ask you, first of all, to avoid labeling FGD Gypsum as a hazardous 

waste, and secondly, to avoid regulating under the Subtitle C or RCRA

Response: The Agency acknowledges and appreciates the comment. 

Section 10.2.3.4 - Abrasives

Total Number of Submissions: 8

Total Number of Comments: 8

Comment Number: TRANS-CLT-0051-3

Organization1:Boiler Slag Consortium

Commenter1:Sean Todd

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

My last point is another specific resuscitation from the rulemaking, and that has to do with 

unencapsulating uses. Over 90 percent of boiler slag is reused in roadways and roofing shingles and in 

abrasive applications. We have another study which we will submit to the docket, that from those fines 

used in abrasive applications; blasting industrial facilities, ships, roadways, bridges, the technical product 

was found to be the same as the soil in your backyard. And so when that material is blasted into its use, it 

simply breaks down in size. It does not chemically alter boiler slag.

Response: The Agency acknowledges and appreciates the comment. 
474

Comment Number: TRANS-PIT-0099-1

Organization1:Black Diamond Granules

Commenter1:Bruce Halerrud

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Our company processes boiler slag granules into working granules and abrasives. As an owner of a 

popular Minnesota business, I came here to ask the EPA to consider scientific data, as well as the 

practical implications of regulating boiler slag. I believe that as a matter of sound science and avoiding a 

potentially devastating economical impact, that EPA determine coal slag to be regulated as a Subtitle D 

material, not a Subtitle C hazardous waste

Response: The Agency acknowledges and appreciates the comment. 

Section 10.2.4 - Other Bevill and beneficial use comments

Total Number of Submissions: 39

Total Number of Comments: 63

Comment Number: TRANS-CHI-0218 -2

Organization1:National Ready Mixed Concrete Association

Commenter1:Richard DeBoer

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

Based on the concrete industry's extensive use of and reliance on fly ash in concrete, and after examining 

the EPA's proposed rule, we have determined that RCRA Subtitle C designation for CCRs bound for 

disposal while retaining exemptions for beneficial use will lead to the following unintended consequences 

for the concrete industry: 1. An increase in production costs and the cost of construction due to increased 

regulations for handling fly ash. 2. An increase in potential liability for concrete producers. 3. Potentially 

stricter state laws impacting beneficial use. 4. The potential elimination of fly ash in concrete. Fear of 

liability will drive specifying engineers, architects and end users to disallow the use of fly ash in concrete. 

5. There will be a drastic impact on the durability of our nation's infrastructure. There is an increased 

service life of roads, bridges and structures built with concrete containing fly ash. Other economically 

viable alternatives for durable concrete do not exist.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0218 -3

Organization1:National Ready Mixed Concrete Association

Commenter1:Richard DeBoer

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Finally, as with the Subtitle C proposal, NRMCA believes a Subtitle D proposal will also dramatically 
475

affect fly ash use in concrete unless the proposed rule explicitly states that fly ash waste from ready mixed 

concrete operations is exempt and not subject to these regulations. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0015-3

Organization1:Colorado Interfaith Power and Light

Commenter1:Betty Goebel

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

I urge the EPA to adopt Subtitle C. Education is the solution to stigma concerns, and we do not oppose 

the use of encapsulated beneficial reuse.

Response: The Agency acknowledges and appreciates the comment. 

Section 10.3.1 - EPA requests comment on proposed regulatory criteria to define legitimate 

beneficial uses, and to distinguish them from inappropriate operations for enforcement (35162-

35163)

Total Number of Submissions: 26

Total Number of Comments: 31

Comment Number: TRANS-LVL-0042-2

Organization1:Charah

Commenter1:Nathan Boone

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

EPA's assumption that Subtitle C regulation will result in an increase in beneficial use, along with other's 

assumptions that a hazardous waste designation stigma is not real, is just not correct, and it is contrary to 

our experience as a daily participant in the beneficial use marketplace. 

As a company, we see a significant number of issues and exposures to unwarranted risk that we feel will 

present themselves through the handling of materials that are viewed as hazardous in some applications 

yet exempt in others, even when they are originated from a common process and location. These concerns 

are relative not only to the marketability and associated stigma but to the general handling and operations 

that will be required for permitted disposal. 

Can you please advise us how we will have to handle the concerns of two truck drivers who are handling 

CCRs from a common storage silo, where the first driver is hauling raw materials to a concrete ready 

mixed plant, yet his co-worker sitting one tren -- truck length away is equipped to haul hazardous waste to 

an on-site disposal cell, even though the material that they are hauling is exactly the same and comes out 

of the same silo?

Response: The Agency acknowledges and appreciates the comment. 

Section 10.3.1.5 - Other criteria suggested by commenters: EPA requests suggestions for other 

criteria that may need to be included (35163)
476

Total Number of Submissions: 12

Total Number of Comments: 14

Comment Number: TRANS-KNX-0015-1

Organization1:Headwaters Resources

Commenter1:Keith Bargaheiser

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

And my comments today are related to the observations while reading the document and its definitions. 

One has to be puzzled as to why the EPA has created the term "coal combustion residue." By EPA's 

definition, the CCR means bottom ash, fly ash, boiler slag and flue gas desulphurization materials that are 

destined for disposal. CCRs are also known as coal combustion waste and fossil fuel combustion waste 

when destined for disposal. 

The commonly accepted terms of CCWs and FFC definitions are clear and concise on what is happening 

to the material and have existed for many years. So, again I ask: Why add to the confusion with this new 

term? 

By the EPA's definition, the term "coal combustion products" means fly ash, bottom ash, boiler slag and 

flue gas desulphurization materials that are beneficially used. This def -- this definition is in no way 

interchangeable with the term "CCR." As I reviewed the EPA document, it became clear the writers of the 

document did not grasp the meaning of the CCR, for throughout they used the term "CCR" for both 

beneficial use and disposal. The EPA has stated they have seen no evidence of damages from beneficial 

uses of CCRs. I ask you: How am I to characterize the term "CCR" in this sentence? 

If we use the EPA's definition previously discussed, then the CCRs are destined for disposal and 

beneficial use cannot occur. The correct terminology would be "CCPs" rather than "CCRs." This is just 

one example of the confusion caused by the misuse of terms within this documentation. 

If recycling is truly the national priority, I challenge you to embrace the use of CCPs for what they are: a 

national resource. We can start by opening a dialogue between the EPA, environmentalists and industry 

with a committee of stakeholders to resolve the issues. Under the existing draft, there will be no winners. 

We can only expect lawsuits and years of confrontation. 

If preventing disposal of CCPs and elimination of landfill ashes, everyone's goal, this can be done. Today 

technologies exist where we can take landfill ash and process it for beneficial use. With everyone's 

cooperation, our tomorrows can be giving back these sites to the public so they can enjoy it as nature 

intended it. 

The only true sustainable answer to this issue is Subtitle D

Response: The Agency acknowledges and appreciates the comment. 

Section 10.3.2.1 - Sand and gravel pit and/or quarry fill operations (35163)

Total Number of Submissions: 20

Total Number of Comments: 30

Comment Number: TRANS-CHI-0137-1

Organization1:USC Technologies

Commenter1:Richie Benninghoven

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.2.2.1 10.3.2.2

Comment Excerpt Text:
477

We're a small company that uses self- cementing, self-encapsulating fly ash to stabilize underground 

limestone mines to provide structural support to make the surface safe. If this work is not done, here is 

what can happen. Collapse of the road made it impassable. 

These limestone mines, even though they are below the water table, are very restrictive to groundwater 

flow with permeabilities of 10-7 to 10-8 centimeters per second. We have had groundwater monitoring 

wells in place at one particular project for over 14 years. Test results showed no increase in heavy metal 

concentrations in the groundwater since ash placement began. This confirms the very protective situation 

of using self-encapsulating fly ash and being surrounded by very impermeable bedrock. 

Here is a picture of the underground limestone mine before being backfilled. And here is what it looks 

like after it's backfilled. These are all the fly ash layers. That's actually, we dug out a berm and it's 

standing at a negative one to one slope. So, it's very well cemented in there and strong. 

The stabilization of fly ash over this site has resulted in nearly $200 million of development on the 

surface such as this Class A office building. 

I urge the EPA to handle non-coal quarry applications in large scale fills such as ours similar to coal mine 

applications that would most likely use an ash characterization and site characterization approach to 

determine that an application is safe. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DAL-0127-1

Organization1:USC Technologies

Commenter1:Richie Benninghoven

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Our company -- we're a small business. We have eight employees. We utilize self-cementing, selfencapsulating fly ash to backfill underground limestone mines to stabilize them so that the surface can be 

put back to productive use. 

I just want to point out to the EPA that the sites are different and ashes are different all over the country. 

So to write a rule that -- I sympathize with you to write a rule to cover the whole country. It's very 

difficult, with all the different products and all the different uses that we have for the material. 

I've got a picture of an underground limestone mine here. It's underneath the water table. You can see it's 

dry. There is no water coming through. That indicates its high impermeability to water flow. The result of 

fly ash in backfilling looks like this, after you remove the berm, which is a lot different than what we saw 

in Kingston. If this were the Kingston ash, it would have flowed out. This stands at a negative one-to-one 

slope. So it's cemented up there. It's encapsulated all these heavy metals that have been referred. 

The result of that is over $200 million of surface development, such as this office building, over the top of 

the mine that would be not possible without the use of cementitous fly ash to stabilize that underground 

mine. 

I encourage the EPA to consider in the rule an ash characterization, site characterization, standard for 

mine fills, quarry fills. There are -- I do recognize there are situations where you do not want to put this 

stuff, because of high groundwater flow and potential for the heavy metals to leach out, but there are 

instances where that's not the case. It can be very protective and very beneficial to the community and the 

environment and everybody's health.

Response: The Agency acknowledges and appreciates the comment. 
478

Comment Number: TRANS-DEN-0002-1

Organization1:USC Technologies

Commenter1:Richie Benninghoven

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

We're a small business, have eight employees. We backfill underground limestone quarries with fly ash to 

stabilize them so we can reuse the surface for development or to stabilize city streets. 

I'm commenting today on EPA's claim that placement in sand and gravel pits, quarries, and large- scale 

fill is not beneficial but it's disposal. I respectfully disagree. 

Ashes are different and sites are different. Ashes such as we saw at Kingsington that just float out in the 

river, it's not self-cementing and it's not self-encapsulating. We use an ash that's self-cementing and selfencapsulating. 

And the cites that EPA has referenced in the preamble refers to a sand pit in Maryland and Battlefield 

Golf Course in Virginia. The sand pits are high -- high-flow situations. Sand is very permeable. And same 

thing at the Battlefield Golf Course. It was placed over sandy soils, again, a high-flow potential situation. 

Our limestone mine is completely opposite. It's very low permeability. 10 to the minus seven, 10 to the 

minus eight permeability. Here's a picture of that mine, and even though it's under the water table, there's 

no water. There's no water dripping. There's no water standing. 

And what's the result of our stabilization? Class A office building development; $12 million office 

building, $6 million office building, $14 million office building. All built over the mine. $50 million 

office building, $30 millions worth of retail development. 

A neighborhood home built over the mine. $24 million worth of condominiums. And currently under 

construction 26 million of luxury apartments. All built over the underground limestone mine that you 

couldn't do without the use of fly ash. 

We also have a state highway going over the mine, an interchange that if the mine wasn't stabilized, could 

threaten to collapse, kind of like what we saw in Minneapolis with the bridge collapse. We don't want 

that. 

Here's a city street that saw that collapse. Two foot of subsidence. We went back and stabilized this so it 

wouldn't collapse anymore. 

So I feel that there's no -- if there's no benefit, I beg to defer. And here's a picture of the ash in the mine, 

self-cemented, self-encapsulated, standing at a negative one-to-one slope. A lot different than what we 

saw at Kingsington.

Response: The Agency acknowledges and appreciates the comment. 

Section 10.3.2.2 - Large-scale fill operations, e.g., large-scale land contouring (35163): EPA 

recognizes need for and solicits comment on better definition/guidance on meaning of “large-scale 

fill operation” to distinguish inappropriate operations (35163); EPA solicits comment on 

alternatives for CCRs used in large-scale structural fill operations either regulating as disposal as 

LF or as minefilling (35231)

Total Number of Submissions: 61

Total Number of Comments: 97

Comment Number: TRANS-CHI-0054-1

Organization1:Beneficial Reuse Management

Commenter1:Jason Sparks

Commenter Type: Beneficial User

Classification: Substantive
479

Comment Excerpt Text:

The reason I was so eager to join Beneficial Reuse Management and one of the reasons why I'm so 

enthusiastic to be here today was because of the company's goal, which is simply sustainable solutions. 

One of these solutions that Beneficial Reuse Management provides is utilizing coal ash as a structural or 

geotechnical fill in construction projects. By providing the technical expertise to supply this service, we 

are in fact benefiting the environment in a number of different ways. 1. We're utilizing coal ash in 

preserving precious landfill space. 2. We're reusing coal ash which reduces the demand for virgin 

materials and preserves natural resources. We reduce the need for additional quarries and barrow pits that 

increasingly blight our nation's landscape. 3. By reusing coal ash, we are able to conserve energy and 

reduce greenhouse gas emissions by decreasing the need to manufacture new products or extract new 

materials to fulfill the same end uses. Reusing coal ash oftentimes results in the reduction of energy 

consumed in greenhouse gases emitted by reducing long distance transportation of newly manufactured or 

extracted materials. 

Local economies are benefited as a result of the availability of lower cost construction materials that 

frequently make an otherwise unaffordable project feasible. These benefits are extremely significant, but 

many people ask, what is the downside to utilizing coal ash for structural fill? Well, the downside is 

simple. Structural or geotechnical fill projects need to be designed and constructed according to proper 

standards and regulated to ensure they are completed correctly. Without proper standards in place and 

regulations to ensure these standards are followed, the concern for this type of use is valid. 

That is why I endorse a national standard on the beneficial reuse of coal ash for structural fill uses. The 

ASTM, American Society of Testing Materials, has written a standard called E2277-03. This standard 

provides the rules to be followed to perform these types of projects and ensures the protection of public 

health and the environment. I am a member of ASTM and I work on the committee responsible for this 

standard. We believe the standard is the tool that is required to utilize coal ash in construction projects 

that will benefit this country and at the same time significantly reduce the number of landfills we'll need 

to construct in the future.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0067-1

Organization1:American Coal Ash Association

Commenter1:Thomas Adams

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

In an effort to create regulations for disposal of coal combustion products, the EPA has elected to 

question certain beneficial uses which have accounted for millions of tons of avoided disposal for 

decades. Specifically, the EPA has questioned certain recycling efforts described as "unencapsulated" 

beneficial use. The primary target has been the use of coal combustion products for geotechnical 

purposes; that is fill projects where coal combustion products are used in lieu of mined sand, gravel and 

other aggregates for structural fills to support all kinds of beneficial commercial development. The 

Agency has expressed concerns for potential leaching of heavy metals into groundwater, coincidentally 

the same heavy metals found in the same levels in the materials they are replacing. EPA has not asked or 

answered the obvious question: If heavy metals are detectable in sand, gravel, limestone and other 

aggregates at similar levels to those found in coal combustion products, is there a leaching concern with 

the use of these materials? The answer would be a resounding "NO". 

We know this because we have decades of experience which gives us anecdotal evidence to support that 
480

answer. We have the same anecdotal evidence when it comes to the use of coal combustion products in 

geotechnical fill. ACAA member contractors and geotechnical consultants have used coal combustion 

products to reclaim and improve sites for decades. In fact, in the Arlington hearing on August 30th, a 

prominent environmental group said that structural fills can be done safely. Yet the EPA has chosen to go 

down this road of questioning a very important beneficial use. 

The current proposal that is the subject of public hearings such as today says that large structural fills are 

not considered beneficial uses by EPA. We strongly disagree. First, we ask the EPA: What qualifies as 

"large"? We do not have knowledge of many 5 million ton fill projects such as the Gambrills, Maryland 

site, the primary example cited by EPA as a basis for questioning structural fills. The quantity and method 

of deposit in this site are unique to that site. Geotechnical fills rarely, if ever, approach even half the 

quantity used at Gambrills. Secondly, has the Agency attempted to discover how fills are engineered and 

constructed and their history of performance? And lastly, has the Agency evaluated all the materials used 

for this application to understand the commonalities and differences between the materials? These 

answers are lacking and are needed to conduct any meaningful evaluation of the use of coal combustion 

products for geotechnical fill

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0137-1

Organization1:USC Technologies

Commenter1:Richie Benninghoven

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.2.2.1 10.3.2.1

Comment Excerpt Text:

We're a small company that uses self- cementing, self-encapsulating fly ash to stabilize underground 

limestone mines to provide structural support to make the surface safe. If this work is not done, here is 

what can happen. Collapse of the road made it impassable. 

These limestone mines, even though they are below the water table, are very restrictive to groundwater 

flow with permeabilities of 10-7 to 10-8 centimeters per second. We have had groundwater monitoring 

wells in place at one particular project for over 14 years. Test results showed no increase in heavy metal 

concentrations in the groundwater since ash placement began. This confirms the very protective situation 

of using self-encapsulating fly ash and being surrounded by very impermeable bedrock. 

Here is a picture of the underground limestone mine before being backfilled. And here is what it looks 

like after it's backfilled. These are all the fly ash layers. That's actually, we dug out a berm and it's 

standing at a negative one to one slope. So, it's very well cemented in there and strong. 

The stabilization of fly ash over this site has resulted in nearly $200 million of development on the 

surface such as this Class A office building. 

I urge the EPA to handle non-coal quarry applications in large scale fills such as ours similar to coal mine 

applications that would most likely use an ash characterization and site characterization approach to 

determine that an application is safe. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0099-6

Organization1:Advanced Wall Technologies (AWT), LLC

Commenter1:Carl Dudding
481

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 11.3

Comment Excerpt Text:

Most importantly, under the proposed EPA regulations, no large structural fill applications are considered 

as beneficial use, even if the material is fully encapsulated by geomembrane or other containment 

methods. 

At the very least, we would suggest as an alternative a Subtitle D designation for management of CCRs 

with fully encapsulated structural fills considered as beneficial reuse and with properly engineered 

controls.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0100-1

Organization1:Full Circle Solutions

Commenter1:Tom Snow

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

My comments today concern geotechnical fills, a subject -- a beneficial reason that has not been discussed 

to this point today. 

The EPA has stated that large volume geotechnical fills do not constitute beneficial reuse. That decision 

was reached without giving adequate consideration to the issue. In the preamble to the current regulatory 

proposal, the EPA stated that they reviewed only one large volume geotechnical fill, the Battlefield Golf 

Course in Eastern Virginia. 

EPA's limited study of this project did not seek to find the answers to many important questions. It relied 

upon groundwater samples with turbidity levels that indicated improper sampling. Was this considered by 

EPA? It does not mention it in their report. 

The golf course was sold to new owners who modified the layout, including pond locations. Did the new 

configuration place surface water and contact with the CCRs? This was not mentioned in EPA's report, 

and the list goes on and on. 

Full Circle Solutions has proved that large volume geotechnical fills constructed in accordance with 

Virginia's regulations are safe for both groundwater and surface waters. Our Peter's Pointe Business Park 

constructed in Petersburg, Virginia actually was constructed using 970,000 tons of CCRs. Construction 

was in compliance with all regulatory requirements, such as the separation from groundwater and surface 

waters. Operational requirements, such as run-on and run-off controls were among many other controls 

that provided adequate protections. 

For years, we have currently -- for years, we have regularly monitored the quality of both the groundwater 

and surface water of that project. It is clean. It is safe for the environment. Anyone here today who would 

like to review those results, you can do so at our website at www.SCSI.biz. 

We have proven that properly engineered, properly constructed, large volume geotechnical fills are safe 

for the environment. Hundreds, if not thousands of similar geotechnical fill projects have been 

constructed in the United States with no threat to the environment. EPA's decision to prohibit such fills 

based upon one potential damage case is simply premature. 

The use of CCRs and geotechnical fills has benefited not only our small business, but also other small 

businesses that build their facilities on properties we develop. 

Therefore, we urge EPA to make an informed decision on the very beneficial use of CCRs as geotechnical 

fills. When placed in carefully engineered, constructed and dry regulated fills, CCRs are safe for the 
482

environment and provide badly needed jobs. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0062-1

Organization1:Full Circle Solutions

Commenter1:Steve Critchfield

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 9.2.2.2

Comment Excerpt Text:

Our power-producing plants are mostly independent power producers that do not you have their own ash 

basins or landfills. Therefore, our efforts have been beneficial to local communities by saving over 10 

million cubic yards of MSW landfill space. We have also benefitted these communities by developing 

industrial properties which have provided hundreds of jobs and millions of dollars in investments. 

My comments today concern geotechnical fills. EPA has stated that they do not believe large volume 

geotechnical fills constitute beneficial reuse and they intend to prohibit such fills under either Subtitle C 

or Subtitle D of RCRA. The EPA reached this decision without giving adequate consideration to the 

issue. The EPA has not given consideration to the benefits given to communities where CCPs have been 

used safely. 

The EPA should also consider the benefit of geotechnical fills that have given to many communities 

across the country the use of CCPs and geotechnical fills, save valuable landfill space, prevent the need of 

additional borrow pits, and provides industrial and commercial property for economic development and 

job descriptions. Most of the land upon which we build could not be used for economic development. The 

earthwork required to develop these properties would otherwise be cost-prohibitive. Two examples of 

communities which have benefitted from our work are the city of Petersburg and the town of South 

Boston, both in Virginia. 

Petersburg has been economically depressed for many years. It had no available property to develop new 

industries and create jobs. Using CCPs, we constructed an in -- industrial park with approximately 150 

acres that's now available for the city to use in its economic development plans. If the city of Petersburg 

had undertaken this project, the earthwork alone would cost over $4 million. 

In South Boston, we partnered with the city and built Houghton Industrial Park. A property designated by 

the town for their industrial park was mostly rolling hills and would require over 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-KNX-0076-1

Organization1:Full Circle Solutions

Commenter1:Derrick Silver

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

My name is Derrick Silver, manager of Full Circle Solutions, Petersburg Virginia Operations. 

Over the past 20 years, I have helped construct dozens of geotechnical fil projects with coal combustion 

products. In compliance with existing state regulations, these fills have al -- always been constructed in a 

manner that protects both groundwater and surface waters. 
483

Before starting a field, we carefully examine the environmental setting. Qualified professionals identify 

the extent of groundwater, surface waters, and wetlands. The project is then de -- designed to give many 

forms of protection to these valuable resources. 

Setbacks are put in place to allow for large buffer areas. The buffer areas allow for soil attenuation of 

vegetation screening. Before placement of CCPs begin, sedimentation basins, soil berms, silt fencing, 

runoff and runoff ditches and other storm water control devices are installed. These measures ensure that 

CCPs do not enter any surface water. 

The first CCP placed in is bottom ash. We placed one foot of bottom ash at the bottom of every CCP fill 

to allow for drainage and any rain water that comes through -- through the field. Water in the drainage 

layer is routed to sub -- sub -- excuse me, sediment basins where it's contained (sic) with storm water. 

This water is then recycled for dust control and proper compaction. 

Placement of CCPs is done with method far exceeds those from earth fills -- earthen fills. Properly 

compacted fills prevent storm water infiltration. We test compaction ten times more than normal for the 

earthen fills. 

Sloping also provides for positive drainage, unlike earthen fills. A top slope, at least 2%, is constructed. 

Phasing of CCP fills also limits water infiltration, will limit the amount of CCP fill area an inactive at any 

given time. 

As soon as each phase has been completed; we cover the CCPs. The proper cover placed over a CCP fill 

also helps prevent any storm water intrusion. We replace a minimum of two feet of dirt over CCPs. We

don't use any -- just any dirt. We make sure that the dirt placed on the fill is compatible, suiting the 

growth of grasses and other vegetation. 

Grassing is then completed and just not imported, it's maintained. We periodically reseed anything in 

areas to mow, as well as to keep it healthy. These are but a few of the controls we design and build for 

any CCP geotechnical fills. 

Though participation in the state regulation process, we have made certain that these and other controls 

have been written in Subtitle D, solid waste regulations. 

Response: The Agency acknowledges and appreciates the comment. 

Section 10.3.3 - EPA solicits comment and info/data on whether it is necessary to define beneficial 

use better or develop detailed guidance on CCR beneficial use to ensure protection of HHE (35161, 

35222)

Total Number of Submissions: 86

Total Number of Comments: 140

Comment Number: TRANS-CHI-0020-3

Organization1:Charah, Inc.

Commenter1:Nathan Boone

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Can you please advise us how we will have to handle the concerns of two truck drivers who are handling 

CCRs from a common storage silo where the first drive is hauling raw material to a concrete ready mix 

plant yet his coworker sitting one truck-length away is equipped to haul hazardous waste to an onsite 

disposal even though the material they are handling comes from a common source?

Response: The Agency acknowledges and appreciates the comment. 
484

Section 10.3.5 - EPA solicits comment and info/data on whether certain unencapsulated beneficial 

uses of CCRs constitute disposal rather than beneficial use (e.g., unencapsulated uses of CCRs on 

the land) and whether they should be prohibited to ensure protection of HHE and address concerns 

over land placement of CCRs (35161, 35163)

Total Number of Submissions: 19

Total Number of Comments: 21

Comment Number: TRANS-ARL-0002-3

Organization1:Environmental Integrity Project

Commenter1:Eric Shaffer

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

The law also requires you to consider the impact the rule may have on recycling, but as defined by 

industry more than half of recycling includes structural fills and minefills and other land applications that 

are often little more than disposal in disguise. That end of the market is growing. The share of ash and 

scrubber sludge used for wallboard and gypsum -- I'm sorry, and cement has stayed relatively flat. So 

while we don't doubt that some of these fill projects are designed responsibly, EPA has conceded that 

some aren't. 

Are you gathering data in any kind of systematic way that will help you distinguish responsible recycling 

from midnight dumping? I don't think these, you know, sham recycling operators are going to walk 

through the door and introduce themselves.

Response: The Agency acknowledges and appreciates the comment. 

Section 10.3.6.2 - To develop potential formal listing of beneficial uses, EPA solicits comment on 

whether additional beneficial uses of CCRs have been established since May 2000 Regulatory 

Determination that were not discussed in preamble; EPA further solicits comment for any new uses 

of CCRs with info/data supporting that those CCRs are beneficially used in environmentally sound 

manner (35163, 35222)

Total Number of Submissions: 23

Total Number of Comments: 28

Comment Number: TRANS-LVL-0140-1

Organization1:NuForm Materials

Commenter1:Brock Marrs

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

NuForm Materials is a small business focused on discovering new applications for coal ash, one of the 

most underutilized commodities in this region. We built this company from beneficiation and 

classification technology that was developed at the University of Kentucky with over 15 years of support 

from the U.S. Department of Energy. Over the past three years, with support from the National Science 

Foundation, our company has worked towards developing new metal matrix and polymer composite 

materials that incorporate ceramics recycled from discarded coal ash. 

For example, we utilize these ceramics as a means of making automotive parts manufactured from 

aluminum harder and more wear-resistant so that they can be used to replace heavier iron and steel parts 

in cars and trucks. As a result, the overall weight of the vehicle was decreased, thereby, passively 
485

improving its fuel efficiency and reducing carbon emissions. 

In another project, we are incorporating fly- ash in plastic foam panels that are used as insulating 

materials in residential and commercial buildings. The fly ash replaces the toxic flame retardants 

currently used in the insulating foams. This high-performance material is safe and cost effective and 

would dramatically enhance the energy efficiency of our nation's buildings. 

Response: The Agency acknowledges and appreciates the comment. 

Section 10.4.1 - Beneficial use will expand with RCRA Subtitle C/special waste listing

Total Number of Submissions: 37

Total Number of Comments: 48

Comment Number: TRANS-ARL-0039-3

Organization1:Izaak Walton League of America

Commenter1:Scott Kavarovics

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Finally, strong regulations will also support the beneficial reuse and recycling of coal ash as utilities will 

have economic incentives to find innovative methods to reuse this waste. Several environmentally 

appropriate reuse options exist today, and we believe encouraging additional innovation makes sense 

within the context of a comprehensive approach to reduce coal ash generation.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0068-1

Organization1:Natural Resources Defense Council

Commenter1:Scott Slesinger

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Having spent more than 10 years working for the hazardous waste disposal industry, I notice that 

hazardous waste disposal companies that operated Subtitle C facilities lost market share over time to 

recyclers and beneficial users. Market economics makes this obvious. The higher cost of disposal led to 

finding cheaper alternatives. So despite the concern of every regulated industry that a stigma would attach 

if EPA regulated their waste as a hazardous waste, the market soon proved otherwise and beneficial uses 

went up. This will be especially the case with fly ash where EPA has used the special waste terminology 

and specifically avoided the dreaded term hazardous for disposal, and clearly for the first time specifically 

avoided any change to the regulations to the material that is going to be used beneficially. 

Some argue that the market has already been affected by the pre-proposal statements of EPA. If there has 

been an effect, the negative impact was ginned up by the utilities and the fly ash recyclers essentially 

trying to poison the market for their own product. It is as if Coke said we put rusty nails in Coke; that 

would probably hurt Coke sales. 

Of course the utilities' concern is not really fly ash recycling. Their concern is having to dispose of the 

toxins that they took out of their stack emissions, collected in the ash and now have a difficult time 

arguing that the toxic ash should be handled as nontoxic waste like kitchen garbage. Therefore, they have 
486

created the red herring of stigma. 

A survey by NRDC shows that of companies that use fly ash, over 69 percent will continue to use it even 

if it is hazardous. I'm sorry, that was not an NRDC survey, but a survey of the NRMCA, the National 

Ready-Mix Concrete Association echoing the survey of the National Precast Concrete Association whose 

survey in July 2010 showed that 84 percent of their members will continue to use fly ash even if the waste 

was regulated under Subtitle C. I'm sure though that future surveys released by opponents of the EPA 

option, at least those that are released to the public, will be more in line with their lobbying campaign that 

the regulation would kill fly ash recycling. NRDC and its 1.3 million supporters urge the EPA and the 

Administration to as quickly as possible issue the final rule under Subtitle C. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0090-1

Organization1:

Commenter1:Richard Fortuna

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 10.4.7

Comment Excerpt Text:

There's three points I'd like to make this afternoon. One, recycling is alive and thriving under RCRA. 

There are many thriving recycling markets under RCRA for materials which have been designated as 

hazardous waste. In addition, there are several consumer-based hazardous wastes for which recycling 

markets are doing extremely well. This will be expanded upon in the report that'll be submitted later. 

Number two, as the level of regulatory control increases, so does the level of recycling. One example of 

this is KO61, electric arc furnace dust. I conducted a study for EPA back in 1994 which showed several 

interesting things. One is prior to RCRA regulation, relatively little EAF dust was recycled. Once the regs 

in place were in 1980 and the land disposal bans took effect in 1986 through 1990, the level of EAF dust 

recycling accelerated as did the diversity of recycling technologies available. Now, confirmation of this 

trend came later that decade when I conducted a private market study of opportunities for recycling in 

Canada. A survey of those steel industries in Ontario showed little interest -- little to no interest in 

recycling because, as they said, we still have our back 40, why would we want to recycle? 

And number three and finally, claims of stigma are little more than a shtick. For those of you who may 

have forgotten your college Yiddish, a shtick is a contrived and overused bit, and a shtick aptly describes 

what is -- how stigma is being used in the context of this rulemaking. Every potentially regulated recycler 

since 1979 has claimed stigma if you regulate their recycling of their waste. This includes the cement 

industry, the chemical industry, the (inaudible) recycling industry, the fuel blending industry, the oil 

industry, the steel industry, to name but a few. All this will be detailed in the report that'll be submitted 

for this rulemaking. Not once have these claims ever been realized. 

I would also point out that Congress explicitly addressed the competing goals of resource recovery and 

protection of public health and the environment in the 1984 HSWA amendments. In 1984, Congress 

specifically stated with regard to used oil recycling as follows: It was never Congress' intent that 

protection of public health and the environment be subordinated to the continuation of used-oil recycling 

practices. 

And one last detail, which I can finish in the last 30 seconds, stigma is also illegal. Pursuant to a ruling of 

the D.C. Circuit in the used-oil recycling regulation, the Court deemed that if it's not in the statute, you 

can't use it. 

One last point I'll make since I have 15 seconds left is that I think we have to be mindful in this regulation 

that many so-called recycling practices are little more than disposal and drag. That's particularly true for 

the nonencapsulated uses such as land reclamation and agricultural uses
487

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0004-2

Organization1:Sierra Club Beyond Coal Campaign

Commenter1:Marianne Hitt

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

And briefly, on the industry stigma argument, which I know you'll be hearing a lot about; it's a convenient 

argument for continuing business as usual, but the fact is that many other industries have actually seen 

recycling increase and become more economically profitable once it was clear that hazardous waste 

would go in one direction and beneficial use would be not classified and kept out of the hazardous waste 

stream, and we've got lots of examples that the Sierra Club will be submitting as part of our testimony. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0070-2

Organization1:Southern Alliance for Clean Energy

Commenter1:Ulla Reeves

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Industry's loudest argument to date in this discussion has not been a legal argument about enforceability 

or a scientific argument about toxicity, but rather, a vague social argument, contending that classification 

of coal ash under Subtitle C would stigmatize it for beneficial uses. We believe that stigma ought not 

outweigh the real threats to human health and the environment. If we are considering stigma, we should 

equally consider the stigma coal ash carries on public health, our water, and our land. 

EPA already anticipated industry concerns over public perception and decided that if listed under Subtitle 

C, coal ash will be designated as a special waste, not a hazardous waste. Moreover, coal ash destined for 

beneficial use would not be subject to hazardous waste rules under Subtitle C. EPA's own analysis 

suggests that special waste designation will actually increase beneficial uses because the cost of ash 

disposal under Subtitle C will increase, thereby incentivizing recycling as opposed to dumping

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0174-1

Organization1:

Commenter1:Reuben Hannon

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

The threat of large amounts of CCRs is present and this material now requires imminent and stringent 

regulation. The main issues seem to be solved fully through the proposed Subtitle C and in part by 
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Subtitle D. The building materials industry also uses CCRs in their production processes. Their end 

product users currently use these products. Building material demands should not be reduced considering 

the EPA continues to stand behind the fact that this special waste can be beneficially used and these 

materials producers will be sure to relay such information if confronted with these issues. 

Likely, more beneficial users will be able to access and feasibly use this material in their own beneficial 

applications as a result of the increased storage costs and likely increase material manufacturing buying 

power. However, states have commented that the beneficial use of CCRs will be prohibited if the EPA 

designated CCRS as hazardous waste. I encourage the EPA to look further into this state beneficial usage 

issue

Response: The Agency acknowledges and appreciates the comment. 

Section 10.4.2 - Beneficial use will diminish with RCRA Subtitle C/special waste listing

Total Number of Submissions: 415

Total Number of Comments: 492

Comment Number: TRANS-ARL-0005-3

Organization1:American Forest and Paper Association

Commenter1:Amy Schaffer

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

AF&PA members are extremely concerned with EPA's belief that beneficial use of coal combustion 

residues will rise if disposal is regulated under the hazardous waste regulations. Nothing is further from 

reality. 

Our members work hard to find beneficial uses for all of our residuals. It is not a question of whether the 

use is appropriate; it's a recognition of the reality of our litigious society. AF&PA members are very 

concerned that EPA did not evaluate the economic impact of the proposed rule for the manufacturing 

sector.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0009-3

Organization1:Boiler Slag Consortium

Commenter1:Sean Todd

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.1.1

Comment Excerpt Text:

Three, boiler slag should be held as a model for EPA for beneficial use. Keeping the Bevill exemption in 

place or even expanding it is the best action the Agency can take to create incentives for beneficial use. 

By doing anything else, it will impede beneficial use. Significant negative impact will occur should 

further regulation occur.

Response: The Agency acknowledges and appreciates the comment. 
489

Comment Number: TRANS-ARL-0019-1

Organization1:Tampa Port Authority

Commenter1:John Thorington

Commenter Type: Local Government

Classification: Substantive

Comment Excerpt Text:

And one of the tremendous success stories in our port in the last 18 months has been the commencement 

of a series of shipments of fly ash from Tampa to a green energy hydroelectric dam project in Panama. 

The contract is slated to total 170,000 tons of fly ash when complete. 

In addition, there are numerous other beneficial use export opportunities throughout this hemisphere for 

this project. At a time when imported building materials moving through our port have dropped 

substantially due to the construction downturn in our region, the opportunity to significantly enhance 

beneficial exports through the shipment of fly ash has produced much-needed positive impacts within our 

port and our community. In fact, in the 29 years that I've been with the Tampa Port Authority, this project 

has been one of the most unique commercial ventures that I have witnessed. Rarely does a project 

generate so many benefits across so many levels. 

The benefits to the Port of Tampa have been previously stated. In addition, vast other benefits accrue 

from this project. The fly ash being shipped from Tampa comes from a major utility company in our area, 

and the product being exported would otherwise be delivered to a landfill. If forced to go to a landfill, the 

utility cost to our area's ratepayers will rise. Furthermore, this project and other similar projects expected 

in the future strongly support the President's initiative to double U.S. Exports in the next five years. 

In addition, using fly ash as an additive and partial replacement for cement in concrete reduces the 

requirement for mining in our state for substitute products. The recycling of fly ash via export shipments 

through the Port of Tampa represents innumerable beneficial use applications throughout the hemisphere. 

These opportunities will vanish if the EPA proceeds with the Subtitle C designation in defining coal 

combustion residues. The hazardous waste designation, even if narrowly applied, will result in a stigma 

which will undermine the progress made to date and the benefits previously referenced will be lost. In 

fact, it is my understanding that even just the discussion to date on this issue has raised serious concerns 

amongst Panamanian citizens and officials associated with the hydroelectric dam project in Panama that I 

referenced earlier. 

I respectfully urge that the EPA pursues the Subtitle D approach for defining coal combustion residues, 

and I thank you very much for this opportunity to speak today on this very important issue

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-ARL-0063-1

Organization1:Headwaters Resources

Commenter1:Mike Adams

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

I come today to urge the EPA to rule in favor of the Subtitle D solid waste option in lieu of Subtitle C 

hazardous designation. My main premise is that the Subtitle D and Subtitle C options provide essentially 

the same protection of the environment. However, based on my experience, I believe that the Subtitle C 

hazardous designation will essentially eliminate any future beneficial reuse of CCPs. 

Coal combustion products when beneficially reused in the aforementioned products provide numerous 

economical and environmental benefits. The benefit of replacing Portland cement with coal combustion 

products has been documented and accepted by U.S. EPA and other regulatory agencies. The 
490

replacement of Portland cement with fly ash saves up to 15 million tons of carbon dioxide from being 

released into the atmosphere annually. Fly ash reduces the cost of concrete and allows smaller concrete 

producers to compete with larger cement owned producers. Concrete containing fly ash is stronger and 

more durable, allowing locally produced concrete to be utilized in lieu of imported steel and wood 

products. The use of synthetic gypsum in wall board product, bottom ash is a light weight aggregate, fly 

ash as a filler in asphalt roof shingles and other beneficial uses of CCPs provide similar carbon footprint 

reductions and cost reductions. 

It is my opinion as well as the opinion of most of the coal ash industry that a Subtitle C designation by 

the U.S. EPA will result in a significant and real stigma against the use of CCPs in any products and 

eliminate any of the environmental and economic advantages of CCPs. The stigma issue is real and is 

already occurring. There are many documented cases where stigma issues resulted in discrimination of 

CCPs or specifying concrete or eliminating the use of fly ash to eliminate possible liability issues. 

Competitors of CCP producers are trying to gain competitive advantage by highlighting possible liabilities 

within their trade associations. Nefarious court suits are being brought forth. An example of this is a 

concrete customer of mine that must remain nameless due to the ongoing suit who's being sued by a 

former employee claiming his health problems were caused by fly ash even though there's no 

documented evidence of fly ash causing this and his lifestyle choices have direct links to this illness. 

In summary, I ask the EPA to use common sense and logic and not succumb to political pressure in 

making the decision on this issue. Please take into account that the CCP problem is an engineering 

problem and is addressed in essentially the same manner by both Subtitle D and C. There's already 

evidence that a hazardous designation will affect the use of CCPs, eliminating the many environmental 

advantages of CCPs, driving the cost of many building products higher. 

CCPs' beneficial reuse provides millions of tons of CO2 reduction. The continued beneficial reuse of CCPs 

in an environmentally safe manner eliminates the disposal of a million tons of CCPs annually. C. 

ommon sense dictates that the Subtitle D option is the correct and only option for EPA

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0077-1

Organization1:Harsco Minerals

Commenter1:Tom Shaw

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.5.1.6

Comment Excerpt Text:

For more than 70 years we have been a green recycler of boiler slag, producing mainly abrasives under 

the Black Beauty trade name and roofing granules for roofing shingles. Harsco Minerals employs 

approximately 500 employees and generates much needed revenue in many rural areas. Almost all of our 

business is built on the beneficial reuse of coal slag. 

The facts demonstrate that there is no reasonable basis for subjecting boiler slag to regulations under 

RCRA Subtitle C, not even as a special waste. When extremely hot, molten coal ash is quenched with 

cold water and the coal ash immediately becomes vitrified into an amorphous, solid and glassy matrix 

known as boiler slag. Because boiler slag is vitrified, it is very durable and an environmentally stable 

material that permanently immobilizes the chemical constituents into a glassy amorphous structure. Boiler 

slag makes up only 2 percent of coal combustion byproducts and the vast majority of it is recycled into 

valuable reusable products. Because it is beneficially reused, boiler slag is not commonly stored in 

surface impoundments. Historically, our boiler slag has always passed the TCLP and has never exhibited 

any hazardous-waste characteristics. Our testing of pre- and post-blast boiler slag using the EPA standard 
491

TCLP has confirmed that the resulting leachate meets drinking water standards. The scientific information 

about boiler slag and its physical properties have not changed since we began our operations 70 years ago. 

Regulating boiler slag destined for disposal is a special waste under Subtitle C would unfairly stigmatized 

beneficially reused boiler slag. 

Already, competitors have been using EPA's proposal to attack our products and try and take business 

away from us, not based on performance or value for the customer, but merely on stigma. Customers and 

consumers will continue to be confused and concerned about purchasing and using products that seem to 

be essentially the same as a Subtitle C waste. We have seen no evidence that boiler slag meets any 

threshold for regulation under Subtitle C. We are not aware of any environmental problems linked to our 

products. Boiler slag has been used since the 1930s as an abrasive in lieu of sand which is an abrasive that

presents serious work or health concerns. We recognize the need for proper and environmentally sound 

standards for regulating the small percentage of boiler slag that is discarded rather than beneficially 

reused. Accordingly, consistent with the announced views of nearly 30 states and EPA's own two 

previous determinations evaluating proper management of CCRs, we support appropriate and reasonable 

disposal standards for any waste boiler slag under Subtitle D of RCRA

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0088-1

Organization1:Headwaters Resources

Commenter1:Frankie Mastin

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

I'm an operational supervisor for Headwaters Resources. The landfill I manage is in Chesapeake, 

Virginia, and it is the same landfill where the million and a half tons of fly ash was processed for the 

Battlefield Golf Course project. 

Altogether I've been a part of 3-1/2 to 4 million tons of ash leaving that same site for beneficial-use 

projects. It has been used for interstate building -- interstates, building pads, and an outfield for a minor 

league baseball stadium. That's 3-1/2 and 4 million tons of sand, dirt, and clay that was not removed from 

the earth. I see that as the best reason for the material not to be a hazardous waste. More disturbed earth 

and landfills filled with fly ash just can't be the same as a renewable resource in an industry where we 

take waste from coal-fired power plants and reuse it. Fly ash with the hazardous waste label will make it 

more expensive to dispose of and it'll make electric bills go up and will cause a loss of jobs in our 

industry. 

We recycle almost 50 percent of the ash produced in America, and of course we want that number to be 

100 percent. And that's the goal of our company and I believe that should be the goal of everybody. I 

believe that what is the best in our environment, and making fly ash hazardous waste will not allow that to 

happen

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0016-1

Organization1:Beneficial Reuse Management

Commenter1:Robert Spoerri

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.5.4
492

Comment Excerpt Text:

Over the last 12 years, my company has implemented hundreds of beneficial use projects and programs 

involving millions of tons of materials including byproduct from coal combustion and emission scrubbing 

systems. We've successfully implemented every one of these programs under strict standards and controls 

without risk or damage to human health and then environment. We're a green company dedicated to 

serving our customers while improving the environment. That's the reason why our employees chose to 

work here and the reason why we all feel so strongly that any actions by the EPA that will discourage 

beneficial use is a mistake. 

Beneficial use conserves the natural resources, preserves scarce landfill space, reduces CO2 emissions, 

strengthens local economies. In the case of FGD gypsum, the use in agriculture has been demonstrated to 

be an important tool to reduce nutrient runoff into sensitive watersheds making its beneficial use a 

homerun for the environment. 

We initially built our business in Wisconsin where strong effective regulations help define standards and 

procedures for safe beneficial use of byproduct materials. We follow these high standards in all the states 

where we now do business and believe such standards should be in place everywhere. We believe this can 

be done without labeling byproducts from coal combustion and emission scrubbing as hazardous or 

special waste under RCRA Subtitle C. 

From our contact with all of the participants in the beneficial use process, we know for a fact that if EPA 

determines that these materials are hazardous or special waste under Subtitle C, it will spell the end of 

beneficial use and of our company. Under a Subtitle C outcome, utilities will not provide the materials to 

us for beneficial use programs; state and local regulators will not permit us to use them; and it will be 

impossible to find project partners or customers willing to accept the materials regardless of how much 

EPA stresses their support for beneficial use. As a result, millions of tons of byproduct materials will 

unnecessarily end up in landfills, and the multiple benefits to the environment and the economy will be 

lost. 

In this debate, we have engaged repeatedly with environmental groups and others concerned about the 

risks of coal ash. We have conducted two educational workshops for environmental groups on beneficial 

use and gained an appreciation for their perspective. From this dialogue, we believe there can be a 

successful outcome from this rulemaking process, gaining strict new controls over coal ash disposal while 

preserving and encouraging beneficial use. This can be done under RCRA Subtitle D with federal 

enforcement powers or under some other auspices. 

We strongly encourage you to consider these alternatives to Subtitle C hazardous designation for the sake 

of our company, of our employees and of the environment

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0019-1

Organization1:Harsco Minerals

Commenter1:Steve Stanislawczyk

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.5.1.6

Comment Excerpt Text:

Boiler slag is beneficially used into abrasives and roofing granules and it has been since the 1930's. Over 

one million tons of boiler slag is processed each year by Harsco alone. 

I am in support of regulating boiler slag under RCRA Subtitle D. *Boiler slag is one of the four Coal 

Combustion Byproducts (CCB) listed in the proposed rule. *Boiler slag only makes up 2 percent of the 

total volume and is commonly overlooked, and the vast majority (over 90 percent) of boiler slag is 

beneficially used and recycled. *Boiler slag is only processed with special types of combustion boilers 

where the molten material is quenched with water creating a vitrified amorphous nonporous solid mass 
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where any metals are made into inert metal silicates. Breaking the material into smaller sizes does not 

alter the properties of the materials in any way, and this is a large example of it. It is a solid rock, a boiler 

slag. 

Some other facts that demonstrate why boiler slag should be regulated under D would be: *Historically, 

boiler slag has always passed the TCLP testing and has never exhibited any hazardous waste 

characteristics. *Harsco also contracted an accredited lab to subject boiler slag to the NEW leaching test 

method referenced in the proposed rule based on research conducted at Vanderbilt University; the 

resultant boiler slag leachate passed all leaching scenarios, digested at a high pH of 12, low pH of 2, 

introduction of strong chelating agents, and extended digestion times of over eight days. It just fairly 

reinforces that as a solid mass. *Harsco is not aware of any referenced damage cases in the proposed rule 

that was the result of mismanagement of boiler slag. *Boiler slag is not stored in surface impoundments 

and Harsco does not store any of our products (raw or processed) in any surface impoundments. 

*Regulating boiler slag destined for disposal as a special waste under Subtitle C would unfairly stigmatize 

beneficially used products such as boiler slag. 

And then, in summary, placing an unneeded stigma on an inert product beneficially used since the 1930's 

will add millions of EXTRA tons of non-hazardous waste into our hazardous waste landfills and 

significantly increase the demand for virgin mined material to replace boiler slag which has a far greater 

carbon footprint to replace the recycled boiler slag

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0034-1

Organization1:Gypsoil

Commenter1:Ron Chamberlain

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.5.4

Comment Excerpt Text:

Gypsoil provides FGD gypsum to the agriculture industry in order to improve the quality of American 

farmland. FGD gypsum improves soil structure and balance by providing valuable calcium and sulfur 

which are both becoming deficient in many of our soils. 

Much of our agricultural land is compacted, resulting in: *erosion of our soils and nutrients, and *lower 

crop production efficiency. 

To solve the compaction problem, I have been applying gypsum to thousands of acres of Midwest 

farmland for the past nine years, and during that time I have observed an array of benefits for our farmers, 

their businesses and the environment. For example: 1. Our compacted soils have become garden mellow, 

rich and balanced as the natural biology flourishes and provides everything their crops need to grow and 

produce high quality, safe food. 2. As a result, we have reduced applications of chemical or petroleum 

based fertilizers by up to 90 percent. 3. Water from heavy rainfall no longer ponds or erods off the fields; 

rather it is absorbed into the sponge-like subsoil and then gently released into our waterways without 

inflicting water damage to our neighbors downstream. 4. Our watersheds are cleaner as evidenced by a 

recent study conducted by the Center for Earth and Environmental Science, a joint project of Purdue and 

Indiana Universities and others, where long-term use of FGD gypsum has influenced a significant

reduction in phosphorus and nitrate loading into the Eagle Creek watershed which supplies the water for 

the City of Indianapolis. Adoption of FGD gypsum as a best management practice in sensitive watersheds 

across the country could clean up our waterways suffering from runoff pollution, provide us with clean 

water and make this a better world. 

State level regulations require me to analyze FGD gypsums regularly, and years of results prove to me 

that it contains no ash or other coal byproducts and is one of the cleanest and safest of all materials 

applied to our soils. 
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Responsibly applied to agricultural soils, FGD gypsum contributes significantly to: * Improved, 

sustainable agriculture, and an improved environment. 

The hazardous designation of gypsum would stop this beneficial use in American agriculture, and thereby 

take away the opportunity to help the environment in so many ways. 

I ask you, please, avoid labeling FGD gypsum as hazardous waste and avoid regulating it under Subtitle C 

of RCRA

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0038-1

Organization1:Headwaters Resources

Commenter1:Bill Gehrmann

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

In the EPA's May 4th, 2010 press release, the Administrator calls for "common sense national protections 

to ensure the safe disposal of coal ash." In that same press release, the Assistant Administrator states that 

"environmentally sound beneficial uses of ash conserve resources, reduce greenhouse gas emissions, 

lessen the need for waste disposal units, and provide significant domestic economic benefits." Our 

industry agrees with both the Administrator and Assistant Administrator. 

With that being said, let's look at a "common sense" approach to accomplishing these goals. 

Let's start with existing surface impoundments. The spill at the federally owned TVA's Kingston Plant 

was an example of an engineering failure of a surface impoundment. Both proposed regulations require a 

retrofit with a liner within five years of the effective date. New impoundments placed in service after the 

effective date require a liner under both proposals. 

Now let's look at dry landfills. Landfills built before the effective date are not required to have a liner 

under either proposal. Both proposals do require groundwater monitoring. Landfills built after the 

effective date have essentially the same engineering standards under both proposals. 

The effective date. Here is where we start to differentiate between the two proposals. Under Subtitle D, 

the effective date is six months after the final rule is promulgated for most provisions. However, for 

Subtitle C, the EPA states that timing will vary. Each state must adopt the rule individually which can 

take one to two years or even more. Common sense tells us that Subtitle D is the quicker path to 

implementation of essentially the same engineering standards. 

Recycling. We need to continue to take advantage of those benefits that the Assistant Administrator 

mentioned in the May press release. Effective recycling reduces the volumes of coal ash placed in 

landfills. The stigma from a Subtitle C designation will negatively impact the volume of coal combustion 

products currently being beneficially used. Common sense tells us that a hazardous waste designation 

increases the liability risks to everyone involved in the beneficial use supply chain. All it takes is the fear 

of these potential liabilities at any link in this chain to jeopardize the benefits derived from recycling. 

Why would the EPA take such a risk? 

The EPA and speakers at these hearings have stated that a Subtitle C ruling would actually increase 

recycling. Common sense would tell you that if that was the case, as the largest marketer of coal 

combustion products in the country, we would be in favor of Subtitle C. We are not. 

Use common sense. If federal jurisdiction is what you are after, find another solution. Don't jeopardize 

beneficial use and its engineering and environmental benefits by choosing a Subtitle C designation

Response: The Agency acknowledges and appreciates the comment
495

Comment Number: TRANS-CHI-0040-2

Organization1:Great River Energy

Commenter1:Richard Lancaster

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

We strongly oppose regulation of CCRs under the RCRA hazardous waste program even if CCRs could 

be labeled "special wastes." 

GRE believes the beneficial use market would be virtually eliminated even under the "special waste" 

characterization. For us, that would mean the loss of $40 million in revenue over the next ten years which 

offsets our generation cost to our members, and over $40 million in stranded infrastructure cost for 

already installed composite liners, beneficial use facilities, and other equipment. This would leave us with 

no option other than to drastically increase electricity rates to our members. 

Such rate increases will disproportionately affect areas of the nation more dependent on coal for power 

generation such as the Midwest. They will also be more pronounced for those consumers in rural areas 

typically supplied electricity by rural cooperatives which rely more on coal generation than do other 

utilities. Increases in electrical rates will mean higher cost for agriculture, manufacturing and small 

businesses in rural areas, more so than in more urban settings. This will place these rural businesses at an 

even greater competitive disadvantage. 

In addition to the economic impacts, GRE feels those calling for regulation under a Subtitle C designation 

underestimate the environmental impacts of regulating a non- hazardous, large volume waste as thought it 

were hazardous. If CCRs were regulated as hazardous, greater energy use would be required by power 

plants to operate CCR control and disposal systems, and even more energy would be consumed in the 

extraction and processing of native materials CCRs currently replace. Not only would we lose the 

greenhouse gas benefits of utilizing CCRs, but we would actually increase CO2 emissions to supply the 

greater amount of energy demanded by hazardous waste control and disposal systems

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0056-1

Organization1:Beneficial Reuse Management

Commenter1:Jeff Ulrey

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1 10.5.4

Comment Excerpt Text:

Under both proposed alternatives, impoundment ponds will go away, something which can be 

accomplished and begin almost immediately under Subtitle D of RCRA. There is no reason to make a 

hazardous waste determination to accomplish this same goal. We can get it done in approximately three 

years rather than the ten years it would take at the minimum with hazardous waste permitting delays. 

Enforcement seems to be a stumbling block that makes some folks call for a hazardous determination. 

With legislation, we should grant the power at the state or federal level to enforcement capabilities 

without a hazardous designation. 

Shutting down beneficial reuse of coal ash by adopting hazardous disposal regulations is not the way to 

jumpstart the renewable energy policy in this country and phase out coal power generation. Let's take the 

good old American ingenuity and be smarter, more creative, and more efficient than the rest of the world. 

Don't weaken this country. A hazardous waste determination will only hurt the rate payer and drive up the 

cost of goods and services if he has to use virgin materials. 

By definition, CCPs are not hazardous by the criteria that the EPA has used for decades: corrosivity, 
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ignitability, reactivity and toxicity. The definition of those four categories can be found under 40 CFR 

261 Subpart C. CCPs do not qualify as a hazardous material by all the same standard scientific practices 

used for years to determine whether a material is hazardous or not. So, we have to move on from this talk. 

But whatever happens, don't let FGD gypsum use in agriculture be swept away over the fears about coal 

ash. Gypsum applications used to improve soil structure and soil porosity could quite possibly be the 

single greatest contribution for improving water quality in this country. It would be a great legacy for 

your children's children that your generation had the most impact on improving the quality of their water 

resources. 

And as I end, imagine the positive impact to our water quality and the condition of our water resources if 

gypsum can be allowed to be used and further research can be expanded. That can't happen if included in 

a hazardous determination. Don't let it happen!

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0058-3

Organization1:Indianapolis Power & Light

Commenter1:Dana Meier

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 10.1.1

Comment Excerpt Text:

Subtitle C eliminates or greatly reduces beneficial use options. IPL produces approximately a million and 

a half tons of CCRs annually and utilizes 40 to 50 percent of that in a myriad of environmentally friendly 

options including fly ash, bottom ash, FGD gypsum as raw materials for producing concrete, cement and 

wall board and in agricultural applications. 

There are significant environmental benefits to these uses. First, utilization reduces valuable landfill space 

that would otherwise be needed for disposal. Also, using CCRs as raw materials to replace mined natural 

resources and manufactured products reduces CCR user cost and conserves valuable resources. IPL 

believes burdening CCRs with a hazardous label, even if they are exempt under Bevill, would drastically 

reduce the amount of CCRs that can be used, commensurately increasing by double or more the amount 

of CCRs that IPL would have to dispose and commensurately reducing the attendant environmental 

benefits.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0071-1

Organization1:Headwaters Resources (spoke as employee)

Commenter1:Bill Kane

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Subtitle C will harm and diminish ash utilization in the United States. The stigma of hazardous waste 

going into any product would harm and diminish it. If you are going to buy your child a toy and you had 

an option of two toys, one made with plastic and one made with plastic and hazardous waste, which one 

are you going to choose for your child? It's I think pretty apparent that labeling fly ash as a hazardous 

product, it is not going to increase beneficial reuse. 

Back in October of last year, 60 Minutes aired the TVA Kingston disaster. Shortly after that happened, 

the next day, one of our number one ready mixed producers in Clarksburg, West Virginia called and 
497

demanded all ash taken out of his concrete that he was to receive that morning for his new driveway. 

I thought the EPA was supportive of reusing fly ash into concrete because it was encapsulated. But once 

again, if you go with Subtitle C, it will diminish and I'm sure you will hear ready mixed producers later 

on today tell you that they will no longer use fly ash in concrete if you go with Subtitle C. 

The Kingston government owned, I don't know if some people don't realize that TVA is I think one of the 

only owned and operated utilities owned by the United States Government. The landfill was run by the 

United States Government and it collapsed and it caused a lot of serious environmental problem. So, your 

answer is to go with Subtitle C, make fly ash hazardous and build more landfills? Because that's what's 

going to happen. 

You make it Subtitle C, we're going to be building landfills all over the place. I would have to say you're 

going to ruin the largest recycling program this country has ever seen. 

And in conclusion, there is simply no basis to pursue Subtitle C for CCBs. It will be equally protective for 

the EPA to develop a federal program for CCB disposal practices under RCRA Subtitle D non-hazardous 

waste program that ensures the protection of human health and environment

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0081-1

Organization1:Headwaters Resources

Commenter1:Mike Adams

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

My premise for my testimony is that stigma is real and listing CCPs as a hazardous material for disposal 

will effectively kill the most successful recycling program in the US and increase greenhouse gas 

production by millions of tons of CO2 and requiring an additional 50 million cubic yards of landfill space 

annually. 

I have been at two hearings before this, Arlington and Charlotte, and at both examples of stigma are part 

of the testimony. A competing blasting grit company gave testimony in how boiler slag should not be 

used a blasting grit even though there is absolutely no documentation of any harm to people or the 

environment. They provided this testimony for one reason, only to gain a competitive advantage over 

companies using boiler slag, not for their concern over the environment. 

A lightweight aggregate company cautioned against the use of bottom ash in the production of concrete 

block, again with no documentation of harm to the environment. In fact, prior independent testing has 

shown very little difference in testing between some manufactured lightweight aggregates which by the 

way produces significant greenhouse gases when being produced and bottom ash. Again, this testimony 

was given to gain a competitive advantage over a competing CCP. These are both examples of stigma. 

So, in reviewing the testimony of these public hearings, EPA will see examples of what will happen in the 

marketplace. If companies will use these EPA public hearings to gain an advantage, you can 

exponentially imagine what competitors will say about CCPs in the everyday marketing of their product if 

CCPs are declared hazardous in any way. 

There has been significant testimony by companies that use CCPs in their products regarding possible 

nefarious lawsuits over the use of CCPs. Our industry is unanimous in our opinion that this fear is real 

and will ultimately lead to the elimination of fly ash in concrete, synthetic gypsum in wallboard, and 

synthetic gypsum as an agriculture enhancer, and other encapsulated uses. As an example of this, I'm 

aware of a company that is being sued by an employee over an illness that he claims was caused by CCPs 

even though there is no evidence whatsoever that CCPs have caused this illness. In fact, the employee's 

past lifestyle have a direct link, tobacco, to this illness. 
498

This is what will happen if CCPs are declared hazardous under Subtitle C. Attorneys, in their effort to 

make a big payday, will bring forth suit after suit hoping for the pot at the end of the rainbow

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0082-1

Organization1:Paul Koziar Consulting, LLC

Commenter1:Paul Koziar

Commenter Type: Other Company

Classification: Substantive

Other Sections: 10.2.3.1 4.1.1

Comment Excerpt Text:

EPA's Draft Rule seems to prefer regulating the material under RCRA Subtitle C which relies on strict 

and administratively burdensome approach that is not required by the level of risk posed by coal ash when 

beneficially used. I believe this will discourage beneficial use and believe proper regulations under RCRA 

Subtitle D will be adequate. 

Why do I say this? It has been my experience as a regulator responsible for implementing NR 538 that an 

effective program can be developed to protect public health if it is based on a simple and common sense 

and balanced approach. 

When NR 538 was originally designed and adopted in 1998, it was done with the cooperation of all 

stakeholders. The resulting program included material assessment, locational criteria to protect sensitive

environments, public health, and engineering criteria to ensure proper design and construction, and post 

beneficial use monitoring activities. It also provided flexibility to try new and innovative approaches 

while saving money and conserving natural resources without risk to the public health and the 

environment. 

I believe NR 538 provides a successful model that EPA should follow with regard to beneficial use. One 

particular example of the cooperative approach is the success story with our Wisconsin Department of 

Transportation. They have embraced the use of coal wherever possible for structural fills, for roadways, 

bridges and embankments. These projects have been implemented according to the most strictest designs 

of engineering and environmental protection. However, in order to get contractors building these projects 

and comfortable with the use of these materials, the Wisconsin legislature had passed a law in 2002 to 

limit the liability of the use of this ash under NR 538. This success in economically building public 

infrastructure in Wisconsin could not have occurred without these byproducts being designated as a 

hazardous waste. 

The current EPA proposal to prohibit structural fills such as these transportation and infrastructure 

improvements will be a severe setback for projects that are critically needed. EPA should develop specific 

standards and criteria under Subtitle D that will enable these projects to continue to generate savings and 

benefits for the public.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0090-2

Organization1:Indiana Energy Association

Commenter1:Stan Pinegar

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The prospects of regulating CCRs under the Subtitle C option would have far-reaching adverse impacts 
499

on Indiana. Despite notions to the contrary, Subtitle C, even with an exemption for beneficial use, will 

have a chilling effect on productive use of the material. Indiana-produced CCRs are used widely for the 

manufacturing of concrete, construction materials, and by our State Department of Transportation.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0094-3

Organization1:Wisconsin Department of Natural Resources

Commenter1:Ann Coakley

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

The consequences of Sub C. We believe regulation of CCR materials under Sub C would negatively 

affect the successful programs that Wisconsin has in place for beneficial use and disposal. DNR does not 

believe these materials have characteristics to be classified as hazardous or special waste. Regulating 

these would severely curtail or eliminate the successful beneficial use. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0107-1

Organization1:Concrete Reinforcing Steel Institute

Commenter1:David McDonald

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Under Subtitle C, fly ash will contain a hazardous label. The implementation of Subtitle C will result in 

less fly ash being used in concrete and more material being stored, increasing the risks to the public and 

reducing use of it in concrete. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0123-1

Organization1:

Commenter1:John Miller

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

There are a few points I'd like to make concerning the proposed Subtitle C regulation. How would we pay 

for the increased cost of power generation this will result in? What if we are wrong as we heard people 

testify that the Subtitle C designation would impact and destroy the beneficial use of fly ash? I talk to 

users everyday and I truly believe this will happen. How many jobs are we willing to lose if this industry 

is destroyed? There are thousands of jobs that could be impacted by this decision. 

Any Subtitle C hazardous material designation will impact this industry. Subtitle C will destroy one of the 

most successful recycling programs ever in the US. It will have allowed millions of tons of CO2 to be 

entered into the atmosphere in a year. It will have put thousands of people out of work and will increase 

the cost of power generations. There is options for both the utility and end users of fly ash. They do not 

have to use this product. Response: The Agency acknowledges and appreciates the comment
500

Comment Number: TRANS-CHI-0131-3

Organization1:Iowa Utility Association

Commenter1:Mark Douglas

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

We would also submit that the regulation of CCR as a hazardous waste would have devastating impact on 

the beneficial use of these materials. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0148-2

Organization1:Lafarge North America

Commenter1:Mitch Nowicki

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Without question, the greatest damage from listing would be experienced in the dramatic reduction in the 

beneficial use of CCBs. A listing would convey to the public and business communities that there are 

inherent environmental and occupational risks related to CCB use. CCBs are simply not essential 

ingredients to the products in which they are used. The primary drivers cost reduction. This, while 

significant, will not justify the risk of long- term environmental or occupational liabilities that a hazardous 

or a special listing would communicate to the corporate boardrooms particularly when production 

alternatives are abundant.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0198-1

Organization1:Harsco Minerals

Commenter1:Galen Carr

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Boiler slag is one of the four listed coal combustion byproducts included in the proposed legislation. I am 

in support of regulating boiler slag under RCRA Subtitle D. 

Prior to becoming a regional manager, I was the director of research and development and quality control. 

An important part of this position was to evaluate new sources of boiler slag. In my entire experience 

evaluating new boiler slag sources, I've never had any boiler slag fail the TCLP test. And I'm not aware of 

any groundwater issues associated with the mismanagement of boiler slag. 

Boiler slag makes up only two percent of total coal combustion byproducts and over 90 percent of that is 

recycled into valuable, reusable products. Boiler slag has been beneficially used since the 1930's as an 

abrasive. We are always looking for new sources of boiler slag and looking for new opportunities to 

beneficially reuse this wonderful inert product. The markets for boiler slag are strong and continue to 

grow. That will change if boiler slag is regulated under Subpart C. 

The beneficial use of boiler slag reduces the carbon footprint of mining and processing of virgin 

materials. Regulating boiler slag destined for disposal as a special waste under Subtitle C would unfairly 

stigmatize beneficially reused boiler slag that I've been processing for many years. My customers will be 

confused and concerned about purchasing products that seem to be essentially the same as a Subtitle C 
501

waste. This confusion can slow down development of new recycling opportunities. 

I recognize the need for proper environmentally sound standards for regulating the coal slag

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0217-1

Organization1:

Commenter1:James Lively

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

The reason for my presence here today is to provide probably a different perspective than perhaps what 

you guys have heard from some of the other stakeholders on the constituents found on boiler slag 

specifically which is one type of CCP. It's important to understand from my perspective how boiler slag is 

produced. Boiler slag is a byproduct of burning coal to produce energy where the particulate that is 

produced encounters very high temperatures. These elevated temperatures create a molten coal ash matrix 

that is quenched with water for cooling. This quenching transforms the molten waste into a vitrified mass 

with limited permeability. 

Vitrification as a successful waste treatment process for heavy metals is well supported by EPA. EPA has 

published many documents on this, two of which, "Vitrification Technologies for Treatment of Hazardous 

Waste," as well as SITE Emerging Technologies Project. These documents chronicle the history of 

successful use of this approach to immobilize heavy metals inside a vitrified matrix, like we have for 

boiler slag. 

Because of the general acceptance of this EPA endorsed technology in immobilizing heavy metals, it 

seems in my opinion wholly logical that a waste which is vitrified, as is the case for boiler slag, should 

not require onerous Subtitle C regulation when it consistently complies with mandated leaching tests. 

Further, if these materials were classified as Subtitle C, the materials would be shipped to a hazardous 

waste treatment facility at a significant additional cost where an encapsulation or chemical fixation 

reagent would be added to the material to limit the permeability of the boiler slag. This seems to be 

redundant and unnecessary for the following reasons: the metals that are present are "locked up" in the 

vitrified matrix that has no or very low permeability. 

Additionally, regulating boiler slag that is not destined for beneficial reuse under Subtitle C will only 

create additional confusion. Consumers will place a hazardous stigma of the Subtitle C regulations for the 

portions of boiler slag not reused on all of the CCP waste including boiler slag used as an abrasive. This 

will create a negative perception and potentially decrease the safe, beneficial reuse of boiler slag as an 

abrasive product. This would cost the power industry, the painting industry, and the supply industry 

significant sums of money as the negative perception may cause more boiler slag not to be reused which 

would force more boiler slag under the unnecessary Subtitle C regulations. 

As a result, I strongly encourage you to consider regulating boiler slag destined for disposal as Subtitle D 

and retain the exemption for boiler slag that is destined for reuse

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0035-1

Organization1:SEFA Group

Commenter1:Bill Black

Commenter Type: Beneficial User

Classification: Substantive
502

Other Sections: 3.1.2

Comment Excerpt Text:

My company and others like it in this region keep millions of tons of fly ash out of landfills and slurry 

ponds every year by recycling it in concrete and other environmental-friendly building products. The vast 

majority of my company's customers that I have personally spoken to regarding this EPA decision have 

told me that if the EPA designates fly ash as a hazardous material they would discontinue their use of it in 

their concrete products. This will result in millions of tons of fly ash going into landfills in this region 

which are now being safely and beneficially recycled in an environmentally friendly way, and it is for this 

reason that I came to oppose any EPA decision that would categorize fly ash as a hazardous material 

whether that would be under Subtitle C or otherwise.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0043-1

Organization1:Headwaters Resources (spoke as employee)

Commenter1:Doug Rhodes

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I wanted to use the time allotted to me to discuss the inevitable stigma which is going to be placed on 

beneficial use of fly ash if Subtitle C is adopted. Several times prior fly ash has been reviewed for Subtitle 

C designation and found nonhazardous. With the recent move by EPA to change to Subtitle C, numerous 

technical bodies such as American Association of State Highway Transportation Officials, National 

Ready-Mix Association, American Society for Testing and Materials, American Concrete Institute, and 

the Portland Cement Association have confirmed the hazardous designation is neither warranted nor 

needed. 

EPA and the states have consistently recognized that regulating CCRs as hazardous waste under Subtitle 

C would adversely impact their beneficial use. Such a result would not be consistent with RCRA's 

directive that EPA consider such beneficial uses in evaluating CCR regulatory options. On the other hand, 

regulation of CCRs under RCRA Subtitle D would not adversely impact CCR beneficial use, while at the 

same time allowing for the development of Federal regulations that would ensure that CCRs are managed 

in a manner protective of human health and the environment. 

The belief that fly ash can have a dual designation of hazardous and beneficial use is absolutely untrue. 

Years of work have gone into establishing the technical data, relationships, distribution and product 

development that validates beneficial use. The stigma of a hazardous designation could simply destroy the 

marketability of beneficial use. I would take this opportunity to remind you of the negative impacts on 

marketing, technical, financial and legal implications for the beneficial use of fly ash. 

So in closing I urge you to maintain the past technical findings that CCR regulation under Subtitle C is 

unnecessary and unwarranted

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0067-1

Organization1:Harsco Minerals

Commenter1:Steven Stanislawczyk

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

I am in support of regulating boiler slag under Subpart D. 
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Boiler slag is one of the four coal combustion by-products listed in this proposed Rule. Boiler slag only 

makes up 2 percent of the total CCB volume. The vast majority of boiler slag is recycled into valuable 

product. I'm only the second person to talk about boiler slag. Boiler slag is only produced from special 

types of combustion boilers where the molten material is quenched with water creating a vitrified 

amorphous nonporous solid mass where any metals are made into inert silicates. You can see it's different 

than coal ash. It's a solid mass. 

Historically, boiler slag has always passed the TCLP testing and has never exhibited any hazardous waste 

characteristics. Harsco also ran the material through the ultimate leachate testing method that was 

referenced in the proposed Rule that was conducted at Vanderbilt University; boiler slag passed all 

leaching scenarios even at very high and low digestion pHs. 

Harsco is not aware of any referenced damage cases in the proposed Rule that was the result of 

mismanagement of boiler slag. Boiler slag is not commonly stored in surface impoundments. Harsco does 

not store any of our products, raw or processed, in any surface impoundments. Regulating boiler slag 

destined for disposal as a special waste under Subtitle C would unfairly stigmatize beneficially used 

products such as boiler slag. 

In summary, placing an unneeded stigma on an inert product beneficially used since the 1930s will add 

millions of tons of extra nonhazardous waste into already crowded hazardous waste landfills and 

significantly increase the demand for mined virgin minerals, which has far greater carbon footprint, to 

replace recycled boiler slag

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0109-1

Organization1:Boral Composites

Commenter1:Brian Below

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

A critical component in our product is a particular type of coal combustion residual, which not only offers 

unique and improved performance properties, but allows us to provide this exceptionally high level of 

green content. Our business is based on selling these green building products to both the construction 

industry and the end customer. 

As such, we are extremely concerned about the EPA's proposal for relabeling CCRs as hazardous through 

a RCRA Subtitle C designation and the negative stigma that that would create within our customer base; 

homebuilders, contractors, installers and homeowners. 

Our customers are not typically scientists or environmental policy makers. They will likely not be aware 

that the EPA has formally encouraged the use of CCRs since 1983 or that the EPA has twice ruled that 

CCRs are nonhazardous, going so far as to form the Coal Combustion Products Partnership in 2003, or 

that U.S. Green Building Council, American Society for Testing and Materials, and American Concrete 

Institute all endorse and encourage the use of the CCRs. Unfortunately, our customers are more likely to 

hear inaccurate information about CCRs and their beneficial uses from uninformed and/or biased media 

sources, creating a negative stigma that will only be exacerbated with an unwarranted change in 

designation to RCRA Subtitle C. 

We certainly support the EPA's efforts to protect human health and our environment. We further believe 

that CCR disposal should be done in a responsible manner to avoid ash spills, like the tragic storage 

failure at Kingston, Tennessee in December 2008. 

However, poor storage practices and mishandling of the material itself should not be grounds for 

changing the classification of that material, and thereby jeopardizing one of the most successful recycling 

programs in U.S. history. 
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Boral Composites is only a small start-up business, but it's a great example of the green-tech, advanced 

manufacturing opportunities that our economy desperately needs. Last Thursday, September 9th, we 

celebrated the groundbreaking for our first commercial scale manufacturing facility being built just up by 

I- 85 in East Spencer, Rowan County, North Carolina; a $13 million 3.7 acre site, Leadership in Energy 

and Environmental Design certified project that will create 25 jobs when fully operational. 

The decisions that the EPA makes around CCR classification will directly impact this new green- tech 

business, these new job opportunities and the future job opportunities that this business would create. The 

negative stigma associated with the hazardous classification through Subtitle C is real and will virtually 

eliminate the demand for our products and our business overnight. 

Let's find a more responsible way to deal with the CCR storage issues that Kingston, Tennessee has 

brought to light. Subtitle C is not the answer

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0116-1

Organization1:North Carolina Chamber of Commerce

Commenter1:John Goodman

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 9.5.2

Comment Excerpt Text:

It's been well demonstrated that a hazardous designation for coal ash would effectively end the beneficial 

use of CCRs. Currently more than 50 million tons of CCRs are recycled annually. This has an annual 

impact of about $9 billion on the U.S. economy. Designating coal ash as hazardous would cripple the 

many businesses that rely on these products for their livelihood due to the liability, stigma and marketing 

concerns that a hazardous label carries.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0133-2

Organization1:UNC Charlotte

Commenter1:John Daniels

Commenter Type: Academia

Classification: Substantive

Comment Excerpt Text:

I'd also point out that it's far more compatible in terms of reuse of this material, particularly at this point in 

history for poise, for major investments in infrastructure. Now is not the time to take off 50 million tons 

of material and take it and simply hide it and not use it at a time where we need so much more virgin 

materials for new bridges, new roads and so on. We simply need this material. It's far more sustainable to 

use that. 

I guess my follow-up point would be, I'm very disingenuous to use this as an opportunity to bash the 

notion of coal burning. Again, having spent three years at NSF, I appreciate the fact that it's wonderful 

that we can take tax dollars and invest it in research; research that is needed so that we can have new 

technologies, alternative energy, energy efficiency and so on. We need these things. And to get to that 

point, we need research to invest there, but someone's got to pay for that research. It requires an economy 

which can support this. And so, right now we have a coal-based economy, so the idea would be that the 

road to a fossil fuel-free future is really paved with coal. 

And once we are able to make these investments, we can then transition to a more energy efficient 

economy
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Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0181-1

Organization1:Burgess-Brogden Concrete

Commenter1:Gene Weston

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.5.1.6

Comment Excerpt Text:

Burgess-Brogden concrete is in the business of manufacturing ready-mix concrete. For over 40 years 

we've used fly ash as an additive in ready-mix concrete for the DOT, for institutional use, on municipal 

water supplies, and any number of different functions you could think of. As everyone is probably aware, 

it's probably about the most widely used construction material in the world. We've used concrete with fly 

ash in it during this time and have never had an issue with anyone ever getting ill from use of our 

concrete. 

Though the proposed reclassification won't disallow use of fly ash in concrete it's unlikely that folks in 

my industry, ready-mix concrete, will continue to consume fly ash at the rate -- by way of 15 million tons 

a year, for use in concrete. So that 15 million tons a year that we're using in concrete in your bridges and 

in your roads and slabs on grading foundations will go away and that's now going to be landfilled. That's 

the thing we don't want to happen. 

Burgess-Brogden Building Supply uses bottom ash in the manufacture of lightweight concrete block. This 

takes the place of other lightweight aggregates, which are pretty much in this area manufactured by 

expansion in a rotary kiln process, which requires heat, which requires energy, which gives off a CO2 

emissions. And these have already been subject to CO2 emissions in the production of power. 

We've never had, again, a problem with anyone getting ill with the millions of block that we have made 

using bottom ash. Likewise, bottom ash has been used as a road material and in a number of different 

tests done by our power companies in South Carolina, neither the stormwater runoff nor the wells 

(inaudible) these roads have shown any sign, and I mean any sign, of detrimental effects from the bottom 

ash that has been used in this construction. 

My partner in CastLite Sales has partnered with power companies in South Carolina to use bottom ash 

beneficially. Unfortunately, if classified as a hazardous material, we will not continue to use bottom ash.

That company will go away. So folks like us quit using it, what we're going to see is 100 pounds of coal is 

going to produce about 10 pounds of residue that right now is heading toward an ash pond, a dump on the 

power plant side. Of that 10 pounds about seven and a half pounds are being used as fly ash and bottom 

ash beneficially in a given good economic time. That's going to go away. 

The bad news is the landfill at the power plant is going to grow that fast. That stuff is then going to be put 

in dumps and on trains and trucked to hazardous waste landfills off-site. So it's still going to still be on the 

road, still be on our right of ways and still take landfill space. The coal plants aren't going to go away 

because you and I as Americans like to have this light come on with a flip switch. 

Finally, reclassification will have an unintended consequence in increasing CO2 emissions, drive up the 

cost of power and construction for all of us, put pressure on our other natural resources, and impede 

American competitiveness and achieve very little return for the costs incurred

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0028-2

Organization1:Headwaters Resources

Commenter1:Ben Franklin

Commenter Type: Beneficial User
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Classification: Substantive

Comment Excerpt Text:

In 2008, almost 12 million tons of ash was recycled and used for beneficial use applications. Because of 

the use of ash, the following was saved or reduced: 15 million tons of CO2 reduced from our atmosphere, 

32 billion gallons of water was saved, 159 trillion BTU's of energy, and approximately $5 to $7 billion. 

You must keep in mind before ruling that you can only impose regulation of the sale of the CCPs. You 

cannot, however, force the companies to sell CCPs. I understand there are some people in the room that 

would like that avenue. 

But keep this in mind, due to perceived liability, many of the nation's power plants are considering not 

selling CCPs at all, which is counterintuitive to what we're trying to accomplish here. You must consider 

that if the utilities choose not to sell CCPs, anyone that uses concrete will then be using significantly more 

portland cement. And of course, that will mean more O2 produce -- CO2 produced and polluted into the 

atmosphere. 

There are other substitutes for fly ash, but they're small in quantity and all of them are double or triple in 

price. Coal ash and other CCPs are recognized as a beneficial and environmentally sound material by 

organizations such as U.S. Green Building Council, ACI, and AS -- ASTM. 

If the EPA promulgates CCPs under Subtitle C, it opens to the door to liability and stigma, some of which 

is already occurring. The EPA's unwillingness to come out to -- in all media forms and state that CCPs are 

not toxic nor hazardous when beneficially used is already crippling the beneficial use of these materials. 

The EPA has promoted the use of CCPs through the C2P2 partnership, and has extensively studied C2 --

CCPs, reporting that they are not hazardous nor toxic. We encourage the EPA to reinstate the C2P2 

program fully and to make a public statement stating that CCPs are not toxic nor hazardous when 

beneficially used -- when utilized. Lastly, we implore the EPA to make the correct and sensible ruling, 

that of the Subtitle D option

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0031-1

Organization1:Headwaters Resources

Commenter1:Bill Gehrmann

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

The EPA and speakers at the Arlington and Denver hearings have stated that they feel a Subtitle C 

hazardous waste designation would incentivize the industry particularly utilities to increase recycling. 

Waste oil and electric arc furnace dust have been used as examples where Subtitle C designation has lead 

to increases in recycling. 

However, there are substantial differences when you compare these examples to coal ash. Disposal cost 

including treatment for these two wastes are much higher than those for coal ash. Under the proposed 

regulations for Subtitles C and D, coal ash does not require any treatment prior to being land-filled. When 

truly recycled, oil is typically sold at prices similar to those of new oil, the product it competes with. In 

fact, most recycled waste oil is actually burned or incinerated as fuel. Electric arc furnace dust recycling 

typically results in the sales of extracted metals, bringing the same values as virgin metals. These values 

coupled with much higher disposal costs incentivize the recycling. 

Fly ash, on the other hand, the coal ash with the highest beneficial use value typically sells for 30 to 50 

percent of the price of portland cement. The substantial pricing incentive is already there. Approximately 

44 percent of coal ash is currently recycled. The theory that the additional pricing incentives will lead to 

more beneficial use in an already mature recycling market does not make sense. No one disagrees with 
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the fact that under either proposal, disposal costs will go up. 

The utility industry has the ability to pass these increased costs through to us, the rate payers. When a 

utility weighs a potential liability to beneficial use under Subtitle C designation, many will minimize risk 

by sending all of their coal ash to the landfill. It is a logical decision when they can minimize their risk 

and have increased -- increased cost of disposal covered by the rate payer. 

This is not the case for companies dealing with waste oil and electric arc furnace dust. You've already 

heard that the stigma of the Subtitle C hazardous waste designation isn't negatively impacting beneficial 

use. There should be no doubt in anyone's mind that the risk assessment decisions made by utilities 

specifiers and beneficial users under Subtitle C will result in more coal ash going into landfills. 

As the administrator has said, it is time for a commonsense approach. The proposed engineering standards 

are essentially the same under both the proposed regulations for Subtitles C and D. Enactment will 

happen faster under Subtitle D. Don't do it under Subtitle C. Don't send more coal ash to the landfill

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0034-1

Organization1:Boral Material Technologies

Commenter1:David Ditta

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Our organization has been marketing coal combustion byproducts for over five decades. 

We support the EPA's efforts to protect the welfare of citizens and of our environment. However, we 

recommend a sensible approach when it comes to the regulation of coal combustion byproducts. We feel 

that a Subtitle C hazardous regulation will negatively impact the future success of fly ash in the 

construction industry. The harshly label of material that has been used for decades in concrete is 

supplementary cementitious material will undoubtedly have equally harsh consequences on our nation's 

infrastructure, concrete durability, electricity consumers, and finally the U.S. economy. 

The stigma attached with a Subtitle C designation will grow exponentially. Project owners, specifiers, 

architects, engineers, municipalities, and state department of transportations will refuse to allow fly ash in 

their projects for fear of exposure to future legal liabilities. The EPA should recognize the successful 

utilization of coal ash in the United States and avoid a path that would negatively effect the future success 

of this material

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0042-2

Organization1:Luminant

Commenter1:Bobby McNeeley

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

Designating CCRs as hazardous would have a devastating effect on the recycling of this by-product, 

leading to higher costs and job losses across many industries. A hazardous classification would destroy a 

viable and environmentally beneficial market. And it's important to note that on four separate occasions, 

most recently in 2000, EPA determined that the regulation of CCRs was not warranted.

As such, Luminant, in addition to over 200 members of the U.S. Congress, 43 states, and numerous 
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federal agencies, strongly opposes the regulation of CCRs as a hazardous material under the RCRA 

Subtitle C hazardous waste program and recommends that EPA continue to allow states to run their own 

programs.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0076-1

Organization1:Luminant

Commenter1:Julie Prejean

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2 9.5.2

Comment Excerpt Text:

Environmental risk is dependent in part upon site-specific factors such as depth to groundwater, annual 

rainfall, and the amount of clay present in the soil. Imposing a hazardous waste designation would result 

in an attempt to regulate using a one-size-fits-all approach, which is not appropriate or warranted. 

It would also simultaneously destroy the recycling market. Since 1993, Luminant has sold nearly 40 

billion pounds of CCRs. In 2009 alone, we recycled more than 2.2 billion pounds. In fact, a variety of 

road projects currently underway right here in North Texas are utilizing recycled coal ash from Luminant 

facilities. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0090-1

Organization1:Texas Mining and Reclamation Association

Commenter1:Mike Altavilla

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Recycling and the beneficial use of coal ash is something TMRA members strongly support. Whether 

beneficially used in coal mining reclamation or recycled and used in a number of construction materials, 

these uses should be encouraged. Beneficial use reduces greenhouse gases, emissions, and also reduces 

disposal needs. Our members are concerned that the beneficial use of CCRs will halt or severely be 

restricted if EPA finalizes the Subtitle C regulatory option.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0096-1

Organization1:CeraTech, Inc.

Commenter1:James Hicks

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Ceratech will be put out of business if CCPs are classified as hazardous. Classifying CCPs as special will 

evoke the connotation of some variety of sort of hazardous or probably hazardous. Further, beneficial use 

of CCPs can be linked under EPA guidelines to any other classification of CCPs. 

I support coal ash disposal regulations that protect human health and the environment while encouraging 

greater recycling of fly ash and CCPs. These goals cannot be both accomplished if the Environmental 
509

Protection Agency designates coal ash as hazardous or special waste. 

People do not want a material in their homes, schools, or neighborhoods if it is considered hazardous in a 

landfill. Businesses will not want to risk being sued for using a material that is considered hazardous in a 

landfill or risk losing the environmental benefits that come with recycling millions of tons of this 

material, including conserving landfill space and natural resources, as well as avoiding the emissions of 

millions of tons of greenhouse gases for manufacturing the materials that recycled coal ash replaces. 

There is no good reason for destroying coal ash recycling. Characteristic waste, which exhibit one or 

more of the characteristics defined in 40 CFR Subpart C, are ignitability, corrosivity, reactivity, and 

toxicity. Coal combustion products meet none of these category designations. 

Further, a solid waste as defined in 261.2 is a hazardous waste if it exhibits any of those characteristics. 

CCPs do not have any of those characteristics. The stigma associated with CCP if classified as any form 

of Subtitle C or special waste is untenable. Whether disposed or used, the fact that it could be either and 

the beneficially used CCR and the disposed CCR come from the same source can be shown to be linked 

under EPA guidelines

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0098-1

Organization1:Harsco Minerals

Commenter1:Shane Strelsky

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.5.1.4

Comment Excerpt Text:

We produce mainly abrasives and granules for roofing shingles from boiler slag. Boiler slag is one of the 

listed coal combustion byproducts included in this proposed regulation. 

Harsco takes employees' health safety very seriously. We have participated in industrial hygiene surveys, 

we conduct -- we conduct regular safety meetings. And safety is an important part of how we do our 

business every day. Environmental permit compliance is also an important part of the way we conduct our 

business. In 20 years of operations, I do not know of any environmental issues caused by the boiler slag 

process by my facilities. 

I am in support of regulating boiler slag under Subtitle D. Some facts that demonstrate that there is no 

reasonable basis for subjecting boiler slag to regulation under Subtitle C are as follows: When extremely 

hot molten coal ash is quenched with cold water, the coal ash is vitrified and becomes a solid glassy 

matrix known boiler slag. Because boiler slag is vitrified, it is a very durable and environmentally stable 

material that effectively immobilizes its chemical constituents. 

Historically, boiler slag has always passed the TLC -- TCLP testing and has never exhibited any 

hazardous waste characteristics. I am not aware of any environmental issues brought forth by any of my 

customers. Any and all TCLP testing requested by any of my customers has never indicated any issues. 

Boiler slag makes up only 2 percent of total coal combustion byproducts, and 98 percent of it is recycled 

into valuable reusable products. Boiler slag has been beneficially used since the 1930's as an abrasive. 

Boiler slag is not commonly stored in surface impoundments. Harsco does not store any of our products, 

raw or processed, in any surface impoundments. 

Regulating boiler slag destined for disposal as a special waste under Subtitle C would unfairly stigmatize 

beneficially reused boiler slag that I have been processing for many years. My customers will be confused 

and concerned about purchasing products that are seen to be essentially the same as Subtitle C waste. 

I recognize the need for proper and environmentally sound standards for regulating the 2 percent of boiler 

slag that is discarded rather than beneficially reuse. However, I feel that the associated stigma that will be 

associated with Subtitle C will adversely impact my business. I am for Subtitle D
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Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0100-1

Organization1:Black Diamond Granules

Commenter1:Bruce Haslerud

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.5.1.6

Comment Excerpt Text:

Our company processes boiler slag granules into roofing granules and abrasives. As an owner of a 

profitable, surviving Minnesota business, I came here to ask EPA to consider scientific data, as well as the 

practical implications of regulating boiler slag as a Subtitle C hazardous waste. 

I believe that as a matter of sound science and avoiding a potentially devastating economic impact that 

EPA determine coal slag to be regulated as a Subtitle D material. Although we are a small company, we 

have recycled over 3 point million -- 3.1 million tons of boiler slag granules into useable products during 

our existence. 

At EPA's Arlington, Virginia public meeting on August 30th, there were several allegations made by a 

competitor selling a competing product that unencapsulated boiler slag is a danger and threat to human 

health. It was also alleged that coal slag abrasives release hazardous airborne pollutants. 

I am compelled to share with you and for the public record the results of an independent, third-party 

laboratory analysis on my slag fines. The study was conducted by Pace Analytical, and it analyzed 

particulate fines from my plant, which are even finer than the slag granule residue from an abrasive 

blasting job. The data show that any metals in the slag granules maintain their encapsulated status and are 

not harmful. The data show that the particulate fines are similar in nature to soil in your backyard. I 

strongly encourage EPA to review this laboratory study and technical data. 

As you may know, 80 percent of all shingles contain boiler slag. If EPA declares boiler slag to be a 

special waste under Subtitle C because -- besides the cost of roof repairs going up, homeowner's 

insurance would also increase. This is because of the stigma of Subtitle C classification. 

Finally, the State of Minnesota currently encourages recycling of old shingles by allowing asphalt for 

state roadways to include a percentage of recycled shingles, but Minnesota does not permit hazardous 

waste to be recycled. If boiler slag is declared a special waste under Subtitle C, EPA will be gutting a 

program that allows for 100 percent recycling, undercutting its own mission to reduce, reuse, recycle

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0102-1

Organization1:Boral Material Technologies

Commenter1:Terry Peterson

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Since 1983, I've observed and experienced the challenges associated with matching CCR production to 

CCP demand. Generally speaking, the imbalance that in -- inevitably occurs between the two results in 

excess CCPs being placed in landfills. Effectively, this excess fly ash disposed has the exact same 

characteristics as the fly ash being sold to end users for beneficial use. Designating fly ash being sold or 

beneficially used as acceptable and then classifying that same material as hazardous waste when landfilled under Subtitle C confuses end users since the fly ash is the same regardless. This confusion leads to 

concerns around future liability for our end user customers, as well as CCP producers. And in many cases, 
511

eliminates their desire to purchase or sell CCPs for beneficial use. 

Another significant challenge to the CCP industry resulting from the stigma of Subtitle C is tracting -- is 

attracting private investment to develop technologies or products that will promote beneficial use of 

CCPs. Even if every cubic yard of concrete in the U.S. contains optimized volumes of CCPs, there would 

still be a substantial amount of CCRs remaining available. New technologies and products will be critical 

to continue to expand beneficial uses beyond conquering (sic ?). Investors will not move forward if there 

are any concern as to the future classification of CCPs under Subtitle C. 

The overall impact of Subtitle C could effectively reverse the successful beneficial uses currently in place, 

as well as eliminate the future investment required to sustain beneficial uses. This reversal will eliminate 

the substantial benefit of avoiding 15 million tons of annual CO2 emissions, require extraction of nonrenewable resources to fill the void left when users not -- opt not to use CCPs and obviously consume a 

large amount of landfill space. 

We are convinced that the EPA can both fulfill their obligation to protect citizens by reinstating Subtitle 

D designation for CCRs while also promoting responsible beneficial uses, which will show us -- allow us 

to maintain our natural resources, as well as the clean air benefit associated with CCP reuse

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0012-2

Organization1:

Commenter1:Joby Adams

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 9.3.11

Comment Excerpt Text:

I believe that the cost estimates associated with the regulation of Subtitle C are underestimated. I also 

believe that we must advocate the beneficial reuse of the byproduct from the energy source that we must 

use, and I believe that if regulated under Subtitle C, the beneficial-reuse programs will be curtailed or 

possibly even eliminated to a substantial degree.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0045-2

Organization1:American Coal Ash Association

Commenter1:Melissa Hendricks

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Any euphemism applied to the material such as "special" does not make the stigma go away. If it is 

legally hazardous, the negative perception will remain. For a consumer making the choice between a 

hazardous and nonhazardous product, the choice is clear. 

Markets for the materials will be destroyed because of the fear of lawsuits, the costs for managing the 

materials, and because of the stigma. 

The U.S. EPA reassures small businesses, "We support recycling. We support you." Yet we have 

witnessed firsthand how quickly the EPA's commitments can change. 

If recycling industrial materials is a national priority, then why has the agency forgotten decades of sound 

scientific research? Why has the agency forgotten the significant progress made toward recycling these 

materials? 

The Region 9 EPA headquarters here in Colorado were constructed use coal combustion residuals. Has 

the agency forgotten the environmental that come with recycling coal combustion residuals?
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Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0048-2

Organization1:American Coal Ash Association

Commenter1:Thomas Adams

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

Virtually all of the CCPs recycled into beneficial use face competition from alterative products which do 

not bear the stigma of being regarded as a hazardous waste. The same delivery truck that happens to 

bypass a concrete plant and unload in a landfill is hauling a material with identical chemical 

characteristics that make it hazardous in the landfill but just fine in a batch of concrete. 

Marketers of the competitive products are already taking advantage of this scenario to gain market share 

at the expense of coal combustion products today. The basic message is the same. My products do not 

contain a hazardous waste. Do yours? 

EPA is continued -- says continued beneficial use will not suffer under the Subtitle C scheme. After all, 

the agency has listed 13 other wastes under Subtitle C and the listing has not discouraged continued 

recycling of those products. 

In order to test this statement, I checked around my home and asked colleagues to do the same. It seems 

that we do not keep black liquor pulping furnaces, spent sulfuric acid, coke oven byproducts, dust from 

electric arc furnaces, or any of the other listed wastes in our garages or basement. 

However, coal combustion products can be found on the roofs and in the wallboard of our homes, in the 

concrete foundations and slabs of our homes, and in the carpet backing we walk on. Clearly homeowners 

can reach out and touch products containing CCPs unlike any of the listed wastes that EPA cites as 

examples of consumer behavior. Rational consumers will turn away from anything containing a 

hazardous waste. 

The stigma of a hazardous waste rule of any kind is real and operative in markets today before we even 

have a final rule. 

We'd like to thank you today for the opportunity and hope that EPA will make its decision based on 

science, not political science or science fiction

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0054-1

Organization1:Headwaters Resources

Commenter1:Gary England

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

And as the largest marketer and manager of coal combustion products, we touch absolutely every aspect 

of the beneficial use of this material. And we are greatly concerned that if the EPA classifies this as 

Subtitle C hazardous waste, then all of that utilization and beneficial use will end. 

There's many reasons to continue to utilized fly ash. We've heard several reports today. The most obvious 

and compelling is the -- is the conservation of our natural resources. For every pound of CCPs that go to 

concrete or beneficial use, there's a natural resource that's not utilized for that. 

And on an annual basis those savings are roughly 159 trillion BTUs of energy. We save over 12 million 

tons of CO2 production. Over 32 billion gallons of water are saved, and has saved this country between 5 
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and 7 billion dollars a year. 

I don't believe there are many recycling projects and materials that can save that kind of -- that can see 

those kind of savings in our country. 

Not only do we see tremendous savings, but also most of the products that you utilize, coal combustion 

products are better. They're stronger. When coal combustion products are used in concrete production, it 

makes a stronger, more durable concrete. 

If we take the coal combustion products out of that, then the taxpayers are going to be placed with that 

burden. Most of our highway infrastructure is concrete. That's going to be expensive to construct. It's 

going to be more expensive to maintain and certainly is going to last -- is going to have a tremendous 

impact on taxpayers. 

Under the EPA's current guidelines, Subtitle C/Subtitle D, the design and the operation of the landfills is 

basically the same. We strongly believe that under Subtitle D the states have the ability and have shown 

that they have the ability to be able to control the disposal. We agree that disposal has to be handled 

correctly. We believe under Subtitle D that that is -- the states are capable of doing that. 

We strongly believe that if it is a Subtitle C hazardous waste, it will not be utilized in concrete. We have 

been formally notified by Los Angeles Unified School District that fly ash is to be taken out of any of 

their projects at this point. 

And we have been notified by several utilities that they will simply cease to take on that kind of liability 

and that potential litigation. 

We appreciate the opportunity to express our concerns and certainly hope that EPA will look at a Subtitle 

D classification

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0067-2

Organization1:Pavestone Company

Commenter1:Michael Midyett

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

While we understand the beneficial-use designation of the product as these are not considered a hazardous 

waste product, we're not certain our customers are actually -- their customers understand the difference. 

The moment that the CCP is designated as a hazardous waste is the moment the litigation will occur. With 

litigation comes the inevitable indemnification clauses and corresponding insurance costs. 

As is typical, these costs will be transferred to our consumers and eventually to the customers. So we can 

foresee future project specifications allowing CCP provided we provide the -- or we the manufacturer 

assume all liability. 

Or the other option is we choose not to use the designated waste product or what -- the product that has 

been designated as a waste product despite the benefits, and instead we order an additional 45,000 tons of 

cement product with the corresponding greenhouse gases associated with the manufacturing of the 

product. 

Cement is almost 15 to -- can be up to 15 times the cost of what our fly ash is. We'll share that concrete 

increased cost with the consumer. 

So in conclusion, we have an entire concrete products industry currently incorporating coal combustion 

products. It is a low-cost, high-benefit material, but it's not integral to manufacture a high quality product. 

The designation of any part of CCP as a hazardous waste will only increase the probability of waste piles 

and slowly eliminate a recycling avenue that has worked successfully for years.

Response: The Agency acknowledges and appreciates the comment
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Comment Number: TRANS-DEN-0093-4

Organization1:PPL Montana

Commenter1:Steve Christian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Subtitle C regulation would severely limit and most likely eliminate beneficial uses that provide 

thousands of jobs and real environmental benefits. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0095-3

Organization1:San Juan Coal Company

Commenter1:Paul Nazaryk

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Number 1, we're opposed to efforts to designate CCR material as a hazardous waste. Management of this 

material as a hazardous waste is clearly not justified given the level of risk posed by the material. Such a 

designation would only discourage its recycling beneficial use with a stigma of a hazardous waste label

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0099-3

Organization1:Colorado Department of Public Health and Environment

Commenter1:Joe Schieffelin

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

We know that EPA is trying to avoid impacts to this reuse, but the best way to do that is to preserve the 

status quo, leaving coal combustion residuals as solid waste. Designation of coal combustion residuals as 

hazardous waste will stigmatize these materials and raise uncertainty and liability concerns with those 

who currently reuse them.

Widespread reuse of a hazardous waste somehow is difficult to reconcile with the word "beneficial." 

EPA's assertion that a hazardous waste designation of coal combustion residuals will actually enhance the 

amount of beneficially reused is, we believe, erroneously based on other much smaller volume hazardous 

waste streams.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0100-1

Organization1:Boral Material Technologies

Commenter1:David Neel

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.5.1.6

Comment Excerpt Text:

We certainly support the EPA's effort to protect human health and the environment. However, we do not 

want the EPA to overreact by labeling fly ash as hazardous through Subtitle C regulation. 
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A Subtitle C regulation will negatively impact our industry and result in significant damage to our 

environment, our employees, our customers, and other fly ash marketing firms. Also negatively impacted 

will be area-consumable electricity due to increased costs. 

The EPA should recognize the successful history of fly ash utilization in the U.S. and avoid taking actions 

that negatively affect the future successful use of these materials within the construction industry. 

The combination of improved economics and superior engineering properties have resulted in the use of 

fly ash being accepted as a routine material used in the daily production of ready mixed concrete and 

concrete products. It should be noted, there is no substitute produce for fly ash that produced similar 

results at similar costs. 

Scientific data is clear. In 1993 and again in 2000, EPA found coal ash did not warrant management as a 

hazardous waste. Material has not changed, and no new studies have revealed some unknown harmful 

traits. 

EPA is suggesting that regulating fly ash disposal under Subtitle C, a hazardous waste, with a 

nonhazardous label for coal ash recycled for beneficial use, they don't believe a hazardous label will have 

a negative impact on recycling of these materials. We believe the EPA is not correct in this assumption. 

The stigma impact is real and already affected the beneficial reuse of fly ash. 

Owners, material specifiers, and engineers will refuse to allow fly ash in their projects due to concerns 

about future legal liability exposure. 

As an advocate for fly ash -- beneficial use of fly ash, I request that the EPA only regulate fly ash under 

Subtitle D to avoid any reference to fly ash as a hazardous waste. 

By the EPA's own admission, Subtitle D nonhazardous waste rule will provide an equal degree of 

protection to public health and the environment. The U.S. environment will best be served by continuing 

the fly ash success story of beneficial use and recycling

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0107-1

Organization1:CTL Thompson

Commenter1:Orville Werner

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

If fly ash is classified as a hazardous material, it will make it economically impossible to use it in concrete 

construction. Thus, we will increase the amount of stored waste, increase the cost of storing that waste, 

increase the amount of CO2 that is emitted into the atmosphere. 

If, as proposed, fly ash is given a dual classification where on the right hand it's not hazardous when used 

for beneficial use or on the left hand it is otherwise hazardous, then the power companies, the truckers, 

the concrete producers, the contractors, and the owners of the projects will all be burdened with an 

extreme and unneeded liability. 

Hazardous materials in our labs and on job sites would be a storage-handling and disposal nightmare. It 

may be cheaper to exclude its use. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0006-1

Organization1:

Commenter1:Craig Wallace
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Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

The best coal ash plan for the environment is recycling, keeping coal ash out of the landfills. The EPA 

and others have studied coal ash for 30 years determining a hazardous waste designation is not warranted. 

A hazardous waste designation unnecessarily puts all coal ash recycling at great risk. 

In 2008, 144 million tons of coal ash was produced. 44% of the coal ash was used safely in beneficial 

applications equating the 63 million tons of coal ash recycled. 

There are 495 coal-burning power plants depositing coal ash into 194 landfills and 161 ponds. According 

to the National Science Academy and the EPA, only 24 landfills are problematic or proven to 

compromise water supplies. This is only 6.7% of the landfills currently accepting coal ash. 

The majority of the problematic coal ash ponds -- or coal ash sites are ponds, which are being phased out 

with Subtitle D. Under Subtitle D, the EPA will specify and design criteria and standards for all coal ash 

storage in the U.S. Any state not in compliance with Subtitle D standards will be subject to litigation. 

Clearly, Subtitle D addresses the engineering failures of problematic coal ash deposit sites and gives the 

federal government the teeth to enforce the new standards. 

Coal ash recycling is the number one recycling success program in the U.S. Stigmatizing coal ash as a 

hazardous material will expose everyone using the product to liabilities from less than ethical attorneys. 

We are already experiencing the stigma as a result of these hearings. In addition, the mere cost of 

defending oneself in court is enough to discourage future beneficial use of coal ash. 

This discussion is not about burning coal or the toxicity of coal ash. This discussion has determined the 

best way to engineer and standardize coal ash landfills to protect the public safety. Subtitle D 

accomplishes this end goal without putting coal ash beneficial use at risk. If it did not address the issue, 

the Office of Management and Budget would not state it has a coal equal option to Subtitle C.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0007-3

Organization1:Boral Material Technologies

Commenter1:John Scoggan

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

The EPA has already reviewed coal waste several times and in 1993 and 2000 formed a conclusion that it 

did not warrant a hazardous label. Nothing has changed. The EPA believes that recycling won't be hurt 

with a Subtitle C for disposal and that there is no stigma. We believe the EPA is wrong in this 

assumption. 

A significant number of speakers presenting at previous hearings have indicated that coal ash was 

responsible for health issues, disease and even death. If engaged people feel this way, imagine how 

uninformed the general public will react to having a product labeled by the EPA as hazardous in their 

homes, schools, churches, and offices. The stigma is real and will cripple the recycling of coal ash. 

The EPA's own scientific data shows that coal ash is non -- non-hazardous. By EPA's own admission, a 

RCRA Subtitle D non-hazardous designation will provide an equal amount of protection to the public 

health and the environment. Please regulate coal combustion waste under RCRA Subtitle D and avoid any 

reference to a hazardous waste

Response: The Agency acknowledges and appreciates the comment
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Comment Number: TRANS-KNX-0009-1

Organization1:American Coal Ash Association

Commenter1:Thomas Adams

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

The Environmental Protection Agency's proposal for regulating the coal -- disposal of coal combustion 

products, or CCP, provides two basic paths creating rules which will improve the protection of human 

health and the environment. Under the provisions of the Resource Conservation and Recovery Act, the 

agency has suggested that CCP be regulated as a hazardous waste under Subtitle C, or as a non-hazardous 

waste under Subtitle D. 

The level of protection provided under either disposal scenario is virtually identical. The distinction 

between describing CCP as hazardous waste or non-hazardous waste has very serious implications for the 

continued beneficial use. The stigma of being associated with hazardous waste is real and is already 

affecting markets. The safe recycling of CCP is a major environmental success story that is in serious 

jeopardy with a looming threat of a Subtitle C rule. 

When faced with the choice of purchasing a product containing a hazardous waste or purchasing a 

product without this stigma associated with it, the rational consumer will choose the non-hazardous 

option. The EPA claims it can construct a rule exempting favored beneficial uses, and under this 

construct, recycling will actually increase. After all, the agency has 13 examples of such a scheme 

demonstrating this result. 

We've continually pointed to the difference between these 13 processed industrial materials and the 

unprocessed CCP used in consumer products such as carpet, wallboards, shingles, concrete foundations, 

and concrete slabs. Hazardous waste is not something consumers invite into their homes, schools, 

healthcare facilities, or workplaces. In an effort to regulate disposal, the EPA is threatening to destroy an 

industry which provides the only rational solution to disposal, which is recycling. 

I'd like to pose a final question for your consideration. What if you are wrong about beneficial use under 

Subtitle C regulation? The following are some of the outcomes: Millions of tons of coal combustion 

products currently safely consumed in a broad range of applications will be diverted to disposal. Since the 

year 2000 alone, over 400 million tons of CCP have been recycled. Current landfills will have to be 

expanded where possible, and new landfills will be required where capacity cannot be increased. 

Another impact, 15,000 green jobs will be eliminated. The vast majority of these jobs are in small 

businesses, not large utilities. Another impact would be the industry which contributes as much as $25 

billion directly and indirectly to the U.S. economy will be lost, and millions of tons of greenhouse gas 

emissions currently being avoided through the use of fly ash in concrete mixtures will be released into the 

atmosphere. Since the year 2000, this beneficial use has accounted for over 125 million tons of 

greenhouse gas avoidance. 

These are just some of the impacts of a Subtitle C hazardous waste rule in the continued recycling of 

CCP. So I repeat the question: What if you're wrong about beneficial use under Subtitle C rules? How do 

you restore decades of recycling success? How do you remediate the environmental damage of increased 

disposal? How do you remediate the damage of millions of tons –

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0013-1

Organization1:Headwaters Resources (spoke as employee)

Commenter1:Doug Rhodes

Commenter Type: Private Citizen
518

Classification: Substantive

Other Sections: 10.5.1.6

Comment Excerpt Text:

And I wanted to take the time allotted me to discuss the positive effects of fly ash as a replacement for 

Portland cement in concrete. The beneficial use will be negatively impacted, as you've been informed by 

the stigma already occurring. The belief that fly ash can have a dual designation as hazardous for disposal 

and non- hazardous for beneficial use is absolutely untrue. Years of work has gone into establishing the 

technical data, relationships, distribution and product development that validates beneficial use. 

The stigma of hazardous designation would simply destroy the marketability of the environmental, 

financial and technical use of fly ash in concrete. The positive technical attributes of fly ash in concrete 

construction are very well documented by private industry, universities, as well as local and federal 

agencies. 

The beneficial use of fly ash in concrete construction has been used in the United States since the early 

30s. The use of fly ash as a cement replacement in concrete has benefit to both the fresh and hardened 

properties. The fly ash affects the fresh properties of concrete by improving workability, reducing water 

demand, reducing segregation and bleeding, and lowering heat of hydration. 

Fly ash increases strength -- excuse me. Fly ash in -- fly ash increases strength, reduces permeability, 

reduces corrosion of reinforcing steel, increases sulfate resistance, and reduces alkali aggregate reaction. 

The only solution for the concrete producer will be to increase the use of cement and chemical add 

mixtures to fill the beneficial void that -- which will be left by the absence of fly ash. 

Not only does fly ash improve the performance and quality of concrete, it offers environmental 

advantages. Just the use of 1 ton of fly ash in concrete conserves enough landfill space for 455 days of 

solid waste for the average American, reduces a -- reduction of CO2 emissions is equal two months of 

emissions from an automobile, energy savings is enough to provide electricity to the average American 

home for 24 days. 

The stigma placed on fly ash by hazardous designation will negate the use and this benefit will be lost. I 

will take this opportunity to remind you of the negative impacts on marketing, technical, financial, and 

the legal implications for the beneficial use of fly ash. 

So, in closing, I urge you to maintain the past technical findings that CCR regulation under Subtitle C is 

unnecessary and unwarranted

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0045-3

Organization1:Charah

Commenter1:Danny Gray

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Other companies are aggressively marketing competing products while using the reference to hazardous 

or toxic as a sales tactic to scare users of CCRs. Ironically, many of the competing products that are 

replacing coal combustion products actually cause harm to the environment through their manufacturing 

processes. To assure that recycling of CCRs will increase as a result of Subtitle C is simply not consistent 

with our experience since December 2008. 

Our company has, along with others, CCP recycling industry have invested substantial capital and 

expanding the use. If -- if the CCRs are regulated under a Subtitle C approach, our efforts, our recycling 

programs will be harmed. 

We support the EPA's effort -- efforts to strengthen the -- the management regulations, but we support it 

under a Subtitle D only approach
519

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0046-1

Organization1:Headwaters Resources (spoke as employee)

Commenter1:Shane Bishop

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I would like to use this time to discuss the inescapably negative impression the beneficial use of fly ash 

will be consumed by if Title -- if Subtitle C is adopted. Fly ash has been reviewed for Subtitle C 

designation and found non-hazardous many times before. In cases, naturally-occurring top soils aren't 

even as safe as fly ash is. With this recent move by the EPA to change to Subtitle C, numerous technical 

bodies such as the American Association of State Highway and Transportation officials, National Ready 

Mix Concrete Association, the American Society for Testing and Materials, the American Concrete 

Institute, and the Portland Cement Association have confirmed the hazardous designation is neither 

warranted or needed. 

The EPA and the states have consistently recognized that regulating coal combustion products as a 

hazardous waste under Subtitle C would have an adverse impact to the beneficial use. Such a result would 

not be consistent with the RCRA's directive that EPA considers such beneficial uses in evaluating CCP 

regulatory options. The regulation of CCRs under RCRA Subtitle D would not adversely impact CCP 

beneficial use, while at the same time it would allow for the development of federal regulations that 

would ensure that CCRs are managed in a manner protective of human health and environment. 

Additionally, we now live in a litigious society that would seize every opportunity to initiate an in --

insurmountable amount for lawsuits, the cost defending nugatory lawsuits and the increased riddance cost 

passed directly to the consumers of power utilities, which will be you and I. With the threats of lawsuits, 

utility companies will have no further alternative but to completely halt the beneficial use of all fly ash. 

This will increase the need for larger amounts of landfill with the amount of fly ash being produced at 120 

million tons per year. That would increase the hazardous waste directly into the landfill by 250%. 

I would like to take this opportunity to inspire you to consider the negative impacts on marketing, 

technical, financial, and legal implications for the beneficial use of fly ash. So, in closing, I urge you to 

maintain the past technical findings of CCRs regulation under Subtitle C is unnecessary, and again, 

unwarranted

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0057-1

Organization1:Sphere One

Commenter1:Mark Bonne

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

If -- if the EPA classifies CCRs as -- as a Subtitle C hazardous waste, the majority of our customers will 

discontinue the use of these materials. 

The -- the waste that -- special waste designation is poorly written, and they have -- and they have the 

following concerns: If CCRs are classified as hazardous waste under Subtitle C, the additional cost in 

time and money to manage these materials will make them cost prohibitive to our customers. Under the 

EPA's proposal, Subtitle C waste is -- is regulated by a set of standards. There are standards for transport, 
520

standards for generation, standards for permitting, standards for treatment, storage and disposal. 

In Subtitle C regulations, the use of -- of wordings to classify materials as hazardous -- hazardous like 

materials derived from or mixtures leaving open a future date any products that contain CCRs to be 

classified as hazardous, no manager would expose their -- its company to the potential future liability. Our 

customers are concerned that mixtures spilled on the floor of their -- of their plants, if swept up, thrown in 

a dumpster, classify the entire dumpster as a hazardous material. 

Subtitle C is a very -- is a far better option to properly manage the disposal of these useful byproducts if 

they cannot be reused or recycled. Without hazard -- the hazardous waste stigma attached to the materials 

by Subtitle C, com -- companies like Sphere One and our customers can find beneficial reuses for CCRs. 

If the tag "hazardous waste" is attached, the products then, most likely, will be dropped from formulation. 

I believe recycling, reusing CCRs is a much better option than landfilling them.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0064-1

Organization1:

Commenter1:Bobby Raia

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

I'm a civil engineer currently working within the coal ash management business that specialize -- that we 

specializes in recycling coal combustion residuals. Currently, approximately 50% of all electricity within 

the United States is generated by the use of coal with its -- with its uses expected to increase by nine -- by 

19% by 2030, as suggested by the United States Department of Energy. 

Of all the coal used to generate electricity, 44% of its residuals, or CCRs, are currently beneficially 

recycled in such items as concrete, brick, mortar, wallboard, drywall, green fill projects, pavement, and 

blocks. A hazardous classification under Subtitle C would have a crippling effect on the numerous CCR 

recycling programs, programs that I participated in, programs that work. 

There is no doubt in my mind that a hazardous classification would give coal ash and its recycling 

programs an unwarranted stigma. The industry has already felt the effects due to negative spin and the 

looming potential of a hazardous classification. 

Engineers, architects and contractors will be unlikely to specify the use of these products in fear of 

professional liability, forcing them to use alternate, more expensive natural resources. If the industry is 

already feeling the impact, what is the future of the coal ash recycling industry should the EPA classify 

coal ash as hazardous? Will there even be an industry? How will this affect the jobs in the industry? How 

will this affect my job? 

What seems to be forgotten is that between the current stigma and the potential industry extinction, CCRs 

will continue to be generated. And as CCRs continue to be generated, if they aren't being recycled, then 

they'll have to be landfilled. But classifying coal ash -- sorry. Classifying coal ash as a hazardous waste, 

40% percent (sic) of the coal ash that is currently recycled will be sent to landfills for disposal. 

And if these landfills are going to be required to accommodate the added quantity, their life will be 

shortened by nearly half, forcing utility companies to expand or construct new landfills to accommodate 

the added quantities. And these costs are going to be reflected on your monthly bill. 

With landfills being expanded and constructed, the EPA, through these proposals, has attempted to 

standardize and strengthen the engineering standards and protective features associated with these 

expansions and new construction. However, both the Subtitle C and D proposals are essentially the same 

with the EPA actually stating that the new disposal regulations will take effect quicker under the Subtitle 

D, non-hazardous approach. 

I'll conclude my speech with this. I strongly believe the EPA should regulate coal ash under the proposed 
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Subtitle D, non-hazardous approach. Subtitle -- this approach protects the environment and human health 

with its standards for landfills, yet it reinforces the values and goals of recycling by promoting the use of 

coal ash in a variety of materials

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0098-2

Organization1:SEFA Group

Commenter1:Mark Casey

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

I understand that the EPA has clearly stated that it does not want to disrupt current recycling efforts, and 

that they believe that designating coal combustion products as a special waste under the Subtitle C 

category will actually increase CT -- CCPs use. If the EPA's assumption is correct, then my company and 

I may benefit financially. So then why am I here today arguing against my own personal financial 

interests? Obviously, I disagree with EPA's assumption. 

Under EPA's special waste proposal, two trucks leave a power plant loaded with coal combustion 

products. One truck will turn left destined for disposal as hazardous waste, while, at the same time, the 

second truck with the same exact material on board will turn right and travel to my customer's plant with 

absolutely no restrictions outside those imposed by normal DOT. It is very difficult business. It is difficult 

for business owners and their attorneys to reconcile this concept. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0105-1

Organization1:JEA

Commenter1:Scott Schultz

Commenter Type: Electric Utility Facility

Classification: Substantive

Other Sections: 9.5.2

Comment Excerpt Text:

JEA is one of a handful of utilities that processes and manages its CCRs internally. JEA considers the 

recycling of its CCRs the right thing to do and an integral part of our environmental- sustain --

sustainability initiatives. 

I'm going to be spece -- speaking to only recycling and not the storage of CCRs. Recycling of CCRs is 

one of the few forms of recycling that requires no government subsidy and provides renewable and cost 

benefits that both the producer and the consumer. In addition to the environmental benefits of recycling 

our CCRs, it saves our rate payers over $10 million per year. 

The consideration by the EPA of classifying CCRs as hazardous waste has already negatively affect (sic) 

our recycling efforts. The classification of CCRs under Subtitle C, regardless of exemptions, will cease 

our CCR recycling program. 

We do need to remember that almost all environmental issues surrounding CCRs are not associated with 

the recycling but storage, including the tragedy at Kingston.

Response: The Agency acknowledges and appreciates the comment
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Comment Number: TRANS-KNX-0116-2

Organization1:Kentucky Chamber of Commerce

Commenter1:Chad Harpole

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

We strongly feel, under Subtitle C, could end the beneficial use of recycling coal ash into products like 

cement and drywall. Regulation under Subtitle C will harm one of best and oldest recycling industries, 

and drive up costs for the construction and home-building industries, industries that are already struggling 

in the current economic climate. 

We also are concerned with the amount of potential litigation that could be created due to products 

manufactured or constructed in the past if coal ash is retroactively ruled as Class C hazardous waste.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0195-2

Organization1:SEFA Group

Commenter1:John Castleman

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

Of critical concern is that listing and regulating fly ash under Subtitle C will reduce the amount of fly ash 

that can be beneficially used. If the EPA lists coal fly ash as a "special waste" under Subtitle C, then it 

will be considered a hazardous waste by the general public. The potential for litigation is enormous. The 

failure of any concrete structure will be blamed on the hazardous waste used in the construction, even 

though the failure was not do to the fly ash in the concrete. Just the threat of such litigation will pres --

prevent any fly ash use on an industrial project. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0001-1

Organization1:American Coal Ash Association

Commenter1:Thomas Adams

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

The EPA has emphatically expressed its support for beneficial use of coal combustion products as part of 

the rulemaking for disposal of these materials, and the rational analysis of the disposal supports this EPA 

position. The best way to minimize disposal problems is to recycle these materials in ways that are 

environmentally safe, technically appropriate, commercially competitive, and supportive of a more 

sustainable society. The American Coal Ash Association agrees and stands ready to work with the agency 

to increase the safe beneficial use of CCPs. 

However, the EPA suggests that beneficial use will increase under a Subsi -- Subtitle C hazardous waste 

rule. While industry has warned of the effects of the stigma of the hazardous waste label for disposed 

CCP, the EPA says markets will ignore that stigma. The EPA also suggests that generators will be 

motivated to invest more than they currently do when recycling CCPs rather than sending the material to 

disposal. Under this scenario, the ACAA and its members should be ecstatic over a Subtitle C option and 

providing full support to EPA's desire to use Subtitle C. Sadly, the reality tells us that the agency's 
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predictive talents are lacking in this matter. 

CCPs com -- compete with other materials in virtually all beneficial use markets. Users and consumers 

have other choices. And competitive material suppliers are already begun to use the hazardous waste 

stigma as a marketing tool. 

Some owners have backed away from allowing CCP use as the cloud of EPA rulemaking casts doubt on 

the safety of these materials. Since they bear the brunt of potential litigation, owners are taking a "better 

safe than sorry" approach. 

Utilities that are uncertain of it -- their liability exposure have considered how to approach beneficial use 

going forward. Some have attempted to download all liability on the small businesses that manage and 

market CCPs, others have considered retaining cut -- custody of all CCP, sending 100% to disposal. 

So we ask the question today: What if you're wrong about beneficial use under a Subtitle C rule? If you're 

wrong and markets reject continued recycling of CCP and disposal increases dramatically. For example, 

since the year 2000, we'd have almost a half million tons of more CCP disposed of with successful 

beneficial use. 

If you're wrong, greenhouse gas emissions go up, as -- as the use of fly ash in Portland cement, concrete 

mixtures decreases. Since 2000, 120 million tons of avoided GHG emissions have been accomplished by 

the use of fly ash in concrete. 

If -- if you're wrong, jobs are affect, as the beneficial use industry accounts for over 15,000 green jobs. 

If you're wrong, the economy is affected. According to the EPA, the CCP recycling accounts for about 

$25 billion of e -- economic activity a year. And while that may be a rounding error in Washington, it's 

serious money out here

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0012-1

Organization1:Headwaters Resources

Commenter1:Mike Adams

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

The premise of my talk is that a Subtitle C ruling will create a stigma that is real, and Subtitle C will 

eliminate recycling of coal ash. 

At these public hearings, the EPA has heard from a -- from hundreds of people who have -- are actively 

involved in the recycling of coal ash to produce significant environmental benefits, including over 15 

million tons of annual reductions of greenhouse gas emissions. These people include producers, marketers 

and users of coal ash, and they have unanimously testified that designating coal ash as hazardous waste, 

when destined for disposal, will create a stigma that ruins recycling efforts in this country and abroad. 

A handful of witnesses, none of them actually involved in recycling coal ash, has stated that stigma is not 

real. They have said that other hazardous materials get recycled and that the higher costs of disposal that 

come with the hazardous designation will incentivize people to recycle more. 

Today I would like to point out why these -- those positions are just plain wrong. First of all, examples of 

other hazardous materials that get recycled are not comparable to coal ash. Most examples ci -- cited by 

stigma deniers are of materials that get reprocessed before they are reused. Coal ash is not recy --

processed before it is recycled and is mechanically and chemically identical to -- to coal ash that is 

disposed. This opens the door wide to litigation that will ask, "If it's hazardous over there, why is it not 

hazardous over here?" 

As -- as example of this, I am aware of a company that is being sued -- ironically this suit was curiously 

initiated after the Kingston incident -- by an employee over an illness that he claims was caused by CCPs, 

even though there is no evidence whatsoever that CCPs have caused this illness. In fact, the employee's 
524

past lifestyle chow -- choices, including tobacco, have a direct link to this illness. 

This is what will happen if CCPs are declared hazardous under Subtitle C. Attorneys, in their effort to 

make a big pay day, will bring forth suit after suit hoping for the pot at the end of the rainbow. 

Furthermore, most examples cited by stigma deniers are of materials that are reused by the very industries 

that produced them. Coal ash is wildly (sic) dispersed to literally thousands of locations in every 

community and is placed in products that come in direct contact with everyday citizens. 

Finally, many examples cited by stigma deniers are of materials that do not compete with alternative 

products. Your gasoline-fueled car cannot operate without gasoline. Concrete and other products can be 

made without coal ash. 

EPA has already heard testimony that some manufacturers of competitive products are already using this -

- the prospect of a hazardous waste designation to sow fa -- sow fear among coal ash users. 

Therefore, I urge the EPA to rule in favor of Sub -- Subtitle D so as not ruin the most successful recycling 

program in the United States

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0014-1

Organization1:Harsco Minerals

Commenter1:Leonard Ford

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.5.1.6

Comment Excerpt Text:

Harsco takes employee health and safety very seriously. We have participated in industrial hygiene 

surveys, conducted regular safety meetings, and safety is an important part of the way we conduct 

business every day. 

Environmental permit compliance is also an important part of the way we conduct our business. In 30 

years of operation I do not know of any environmental issues caused by the boiler slag processing by our 

facilities. 

I am in support of regulating boiler slag under RCRA Subtitle D. 

Some facts that -- that demonstrate that there are no reasonable basis for subjecting boiler slag to 

regulation under the RCRA Subtitle C are as follows: When extremely hot, molten slag ash is quenched 

with cold water, the coal ash is vitrified and becomes a solid, glassy matrix known as "boiler slag." 

Because the boiler slag is vitrified, it is very durable and environmentally stable material that effectively 

immobilizes its chemical constituents. 

Historically, boiler slag has always passed TCLP testing and has never exhibited any hazardous waste 

characteristics. 

I'm not aware of any environmental issues brought forth by any of my con -- customers, and all the TCLP 

testing requested by any of the -- my customers has never indicated any issues. 

Boiler slag makes up only 2% of the coal combustion by-products and 98% is recycled into valuable re --

reusable products. Boiler slag has been beneficially used since the 1930s as an abrasive. Beneficially used 

boiler slag replaces material mined from virgin material. Beneficial use of boiler slag reduces the carbon 

footprint of mining and processing of virgin materials. Boiler slag is not commonly stored in surface 

impoundments. Harsco does not store any of its products in any surface impoundments. 

Regulating boiler slag destined for disposal has -- as a special waste under Subtitle C would be unfairly 

stigmatized beneficial us -- reused boiler slag that I have been processing for many years. My customers 

will be confused and concerned about the purchasing products that are seen to be essentially the same as 

Subtitle C waste

Response: The Agency acknowledges and appreciates the comment
525

Comment Number: TRANS-LVL-0038-3

Organization1:Boral Material Technologies

Commenter1:John Scoggan

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Today, in America, perception is reality; otherwise, we wouldn't be here. Coal is perceived by the general 

public as hazardous, even though the scientific data proves otherwise. The EPA says there is no stigma. 

The American public disagrees, as proved by what we have heard here today from citizens and 

environmental groups. 

Please help the coal combustion recycling success story continue. Rule with the RCRA Subtitle D

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0041-1

Organization1:Charah

Commenter1:Charles Price

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

The EPA's assumption that Subtitle C regulations will result in an increase in beneficial use are not 

correct. Recycling will decrease, if not end altogether, if the EPA regulates CCRs under Subtitle C. 

Simply stating that CCRs are exempt, if beneficially used, is not sufficient to put the legal liability fears 

to rest among the user community

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0042-2

Organization1:Charah

Commenter1:Nathan Boone

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.3.1

Comment Excerpt Text:

EPA's assumption that Subtitle C regulation will result in an increase in beneficial use, along with other's 

assumptions that a hazardous waste designation stigma is not real, is just not correct, and it is contrary to 

our experience as a daily participant in the beneficial use marketplace. 

As a company, we see a significant number of issues and exposures to unwarranted risk that we feel will 

present themselves through the handling of materials that are viewed as hazardous in some applications 

yet exempt in others, even when they are originated from a common process and location. These concerns 

are relative not only to the marketability and associated stigma but to the general handling and operations 

that will be required for permitted disposal. 

Can you please advise us how we will have to handle the concerns of two truck drivers who are handling 

CCRs from a common storage silo, where the first driver is hauling raw materials to a concrete ready 

mixed plant, yet his co-worker sitting one tren -- truck length away is equipped to haul hazardous waste to 

an on-site disposal cell, even though the material that they are hauling is exactly the same and comes out 

of the same silo?
526

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0046-1

Organization1:Headwaters Resources (spoke as employee)

Commenter1:Alan Falls

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I'm requesting that you make CCPs a Subtitle D and keep it listed as a non-hazardous industrial waste. If 

this non-hazardous material is listed through Subtitle C as a hazardous waste just so you can regulate 

landfills, you'll be doing a grave injustice to our country's most successful recycling program. Local 

homeowners that own the product that the CCPs are in them, workers that produce concrete or other 

products containing CCPs, the people that handle or work with the products that are produced, using 

CCPs will not be able to distinguish between real hazardous products and ones that have been labeled as 

such so the CCP program -- material going to the landfill can be regulated by the EPA. 

Because of this, people will start to be afraid of using fly ash and this valuable recycling program will 

fail. This will cost the people of the United States billions of dollars in increased electrical costs by 

increasing landfill costs. 

If CCPs are labeled Subtitle C and the recycling program fails, over 30 million tons of Portland Cement 

will have to be produced, which will lead to an additional 30 million tons of CO2 gas being produced, 

greatly increasing the cost of concrete and other construction materials, again costing the people of the 

United States billions of dollars in increased construction costs. Also, if you are a believer in "global 

warming," the additional 30 million tons of CO2 gas produced will speed this process. The cost of this is 

impossible to put a price tag on. 

I understand that some people claim that if you make CCPs a hazardous waste that you'll actually increase 

the beneficial reuse program. My question is here -- here is: Wouldn't you think that the people that are 

currently marketing fly ash would be promoting Subtitle C designation if that were true? 

I believe that I'm qualified to state, honestly, that all ash marketing groups are strongly opposed to 

Subtitle D -- Subtitle C designation. 

If the EPA fails -- feels that it must regulate landfills, then I implore them to make CCPs a Subtitle D and 

find another method of regulating that won't jeopardize our country's most successful recycling program

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0058-2

Organization1:Gibbco

Commenter1:Brian Keplinger

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

While I applaud the EPA for their work in safeguarding the environment, I have to question how the 

structural failure of an ash impoundment dike, while certainly a disaster and not to be taken lightly, leads 

to the regulation of CCPs as a hazardous waste. A Subtitle C designation for the materials that I use every 

day would have disastrous results for us.

Response: The Agency acknowledges and appreciates the comment
527

Comment Number: TRANS-LVL-0071-1

Organization1:Commerce Lexington

Commenter1:Tyler Campbell

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.1.1 9.3.7 4.1.1

Comment Excerpt Text:

Again, for -- for the members of my organization, the -- we represent electric utilities, power plants, and 

we also have a rep -- representation of ash marketers. The materials that these are -- that coal ash used for, 

and -- and has been stated here today, include cement and concrete applications. They're found in 

highway constructions programs and wallboard manufacturing, drywall. And all of this can be used to 

reduce the volume of disposed waste without endangering health and -- human health and the 

environment. 

The regulation of and the disposal CCRs under RCRA's hazardous waste rules, even with an exemption 

for beneficial use, could have a dedest -- a devastating impact on CPR -- CCR beneficial use because of 

the stigma associated with regulating any CCRs under the hazardous waste program. 

Given the overwhelming economic challenges confronting all sectors of the U.S. economy, we honestly 

believe that it's absolutely critical the EPA and the state come to a resolution regulating coal ash under 

Subtitle D in -- in an effort to work with the states, and not impose unnecessary regulation and controls on 

the electric power industry. And that would drive -- serve to drive up cost for the business community and 

con -- and residential consumers

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0085-3

Organization1:

Commenter1:Bill Chlebowy

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Industry today recycles about 45% of coal ash. Coal ash is used in concrete, concrete blocks, wallboard, 

and other useful products. Regulating coal ash as a hazardous material would kill recycling industry and 

use of coal ash. 

After all, who would want to risk a lawsuit or undergo the stigma from having a hazardous waste material 

in their product? Would you build a house with drywall that has a hazardous waste deemed by the EPA in 

it? 

Companies would have to replace the coal ash used in these products with another product. It would have 

to utilize resources to mine, transport --

MS. GENTILE: I'm sorry, sir. Your time is up. 

MR. CHLEBOWY: All right. 

MS. GENTILE: Thank you. 

MR. CHLEBOWY: -- and disturb the earth in finding these substitute materials

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0117-1

Organization1:

Commenter1:Ron Roberson
528

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

I feel that the negative inaccurate data that the coal ash receives by the news media and special groups has 

jeopardized the continued future use of recycled material. As I travel this great country, I am encouraged 

with the recycling efforts by the amount of coal ash used in concrete that is placed in our cities bridges, in 

our sidewalks, and airports where millions of people step each day. 

Looking at the great dams that hold back our precious lakes and rivers, I applaud the efforts in which the 

combining of the coal ash with other natural resource to create a -- a concrete structure to provide 

recreation, safe drinking, and to protect our lands from flooding

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0128-1

Organization1:

Commenter1:Brandon Emmick

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I support coal ash disposal regulations to protect human health and the environment without 

compromising greater recycling capabilities of coal ash. Both of these goals cannot be accomplished if the 

Environmental Protection Agency designates coal ash as a hazardous special waste under Subtitle C. 

This classification would bring an uncertainty to the gen -- to the general population and would be 

detrimental to the recycling efforts. Most of the population will not research for themselves but will 

depend on what the news media tells them. If they read in the newspaper that a material is hazardous, they 

will fight the use of it in every application. We must not make it difficult to continue the best recycling 

program that we have available in this country

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0132-1

Organization1:

Commenter1:Steven Hudgins

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

I'm a member of Beechland Baptist Church located in Louisville, Kentucky. In 1949, Beechland built a 

new sanctuary. Senior members talked about the construction and ordering coal ash to be used in the 

construction of the building for construction fill. This was ordered from the local power plant. That 

building still today serves the community very well. 

In recent years, sanitary sewers have been installed in southwest Jefferson County, Kentucky. Residents 

of this working class community were required to connect at considerable cost to individual families. 

During the construction phase of this project, coal ash was used as aggregate in the project to help reduce 

the cost. The use of coal ash also prevented the need to mine materials for this project, reducing the use of 

fossil fuels for the mining process. 

The beneficial uses of coal ash in current day applications ranged from construction fill, ready- mixed 
529

concrete, lightweight concrete as a filler in plastic products, blasting grit, roofing shingles, and even in 

household products as kitchen countertops which qualify for leed certification points. High-profile 

projects such as Federal Bureau of Reclamation dams and the I-35 W bridge project have also used coal 

ash in the concrete in these projects. 

Environmentally, the public benefits from the reduction in Greenhouse gases by using coal ash in these 

applications is a benefit to the community. On a matter of declaring coal ash a hazardous material, I 

would like to reference a study conducted by EPA in 1988 entitled "Waste from Combustion of Coal 

Electric Utility Power Plants." Findings of this study conclude that coal combustion projects should not 

be classified as hazardous waste. This was, again, in EPA reports in 93, '99, 2000, all the same 

conclusions. Here we are again today examining the same issue. 

I would like to strongly, and I repeat strongly, urge you to not consider coal combustion products as a 

hazardous waste. Please consider them as a Subtitle D material and regulate them accordingly

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0139-2

Organization1:Kentucky Chamber of Commerce

Commenter1:Chad Harpole

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Additionally, we feel strongly that regulation under Subtitle C could end the beneficial use of recycling 

coal ash into products like cement and Quikrete. Regulation under Subtitle C will harm one of our best 

and oldest recycling industries and drive up costs for the construction and home building industries, 

industries that are already struggling under the current economic climate.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0021-2

Organization1:U.S. Senator Bob Casey

Commenter1:Jackie Erickson

Commenter Type: Federal Elected Official

Classification: Substantive

Comment Excerpt Text:

Let me take a moment to comment on the option to regulate CCBs as hazardous if they are disposed in a 

landfill or impoundment. 

Some have argued this would promote the greater reuse of CCBs as utilities would expand existing reuse 

markets and seek out other opportunities to beneficially use the materials to avoid the expense of placing 

them in hazardous waste landfills. 

However, I believe this approach would have the opposite effect and would actually result in the 

reduction in the reuse of these materials. I have heard from numerous businesses who are already feeling 

the chilling effect of a potential hazardous labeling on their ability to reuse CCBs. For example, a local 

Pittsburgh company has had financing for a new CCB recycling project withdrawn because of concerns 

about the potential legal exposure should the material be regulated as a hazardous waste. 

What this chilling effect means is that more coal combustion byproducts would have to be disposed. This 

in turn would require more of Pennsylvania's land being converted into hazardous waste landfills. I have 

conveyed to EPA's administrator, the Honorable Lisa Jackson, my concerns about the possibility that the 

agency will regulate CCBs as hazardous wastes. 

And what this would mean to the beneficial reuse of these materials, what it would mean to cost of 
530

generating electricity from coal in Pennsylvania, what it would mean to the environment, and what it 

would mean to jobs. I believe, and have recommended to EPA, that CCBs continue to be regulated as 

non-hazardous, regardless of whether they are beneficially re-used or placed in a landfill or impoundment. 

I am not advocating that changes in the regulation of CCBs are not needed. The events in Kingston, 

Tennessee in 2008 have clearly shown the need for stringent federal guidelines in how CCB landfills and 

impoundments are designed, engineered, constructed, and managed. 

As such, I have also recommended to EPA that the agency develop a set of strict, enforceable federal 

design and engineering requirements under RCRA's nonhazardous waste program for CCB landfills and 

impoundments. And that these requirements include specific protocols for surface and ground water 

monitoring. I believe that the continued regulation of coal combustion byproducts as non-hazardous under 

RCRA's Subtitle D nonhazardous waste program is the most appropriate course of action for the agency 

to take. 

Coupled with the development and promulgation of federally enforceable requirements for the storage 

and monitoring of these materials under Subtitle D, this will ensure the protection of Pennsylvania's 

environment and the public health of our citizens. 

While allowing Pennsylvania to continue to accrue the employment, economic, and environmental 

benefits of reusing these materials

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0060-1

Organization1:Headwaters Resources (spoke as employee)

Commenter1:Keith Seymour

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Definition: Stigma means to shame, disgrace or dishonor. This is what is happening to our industry with 

this crazy notion that fly ash is a hazardous waste. Public perception of what they see and hear is very 

powerful and this is a major part of our stigma problem today. Innocent until proven guilty is what I grew 

up thinking but maybe I was wrong or at least in this matter. The extreme propaganda and misinformation 

about this matter is ridiculous. I have been in this industry for over 25 years and have watched the use of 

CCP's increase dramatically. 

Thousands of studies by colleges, universities, and our own federal government agencies, especially 

yours, the EPA have shown there is no reason to classify fly ash as a hazardous waste. 

That?s why are we here today? Because freedom of speech is another great thing we can have in our 

country. Although the information being spoken is not always correct, you still have the right to be heard. 

Environmentalist groups in large numbers have spoken on this matter, and my question is where is there 

proof that fly ash is a hazardous waste. Are there studies that have been done that we are not aware of that 

back what they are saying? 

The economic fallout if fly ash is considered a hazardous waste would be astronomical. With a struggling 

economy, can we afford to lose hundreds of thousands of jobs, watch utility cost sky rocket and watch 

landfills increase in size because we are being bad stewards to our environment? 

Did you know that using fly ash to replace Portland Cement in Ready Mix concrete and other applications 

is saving our ozone layer? For every ton of cement produced, there is 1 ton of carbon dioxide being 

released into our atmosphere. The beneficial use of fly ash in concrete production reduced U.S. 

greenhouse emissions by as much as 15 million tons alone in 2007. 

Furthermore, using CCP's saves the energy needed to extract and process other materials for the same 

uses. Coal ash has been studied extensively for decades by universities and government regulatory 

agencies. Designating coal ash as hazardous waste is counter to scientific evidence and would seriously 
531

limit the widespread use of CCP's as we know them today. 

The beneficial use of CCP's has increased steadily since the 1960's and contributes to economic growth. 

Beneficial use has almost doubled from 22 percent in 1989 to 43 percent in 2007, which contributes more 

than 4 billion dollars to the U.S. economy and provides jobs for thousands of workers. Coal ash that is 

beneficially used does not need to be disposed in landfills thus reducing the need for new or expanded 

disposal facilities while at the same time conserving natural resources for other uses. Go Subtitle D not C

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0066-1

Organization1:Headwaters Resources

Commenter1:Mike Adams

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

There have been speakers disputing my claim of stigma citing past history with other waste products that 

have been listed and the subsequent increase in their recycling. We do not believe that these examples are 

indicators of what will happen to CCPs if they?re declared hazardous for two reasons. 

Most if not all of these products were either recycled back into the process they originated from or were 

processed themselves to reduce their toxicity. Neither of these options work for CCPs. None of these 

products were recycled into new materials that are used in every day products such as the example of fly 

in concrete. 

We in the coal ash recycling business believe that stigma will occur. In fact, I have heard testimony at 

these hearings that are examples as to how stigma will be used against CCPs. 

A competing blasting grit company gave testimony on how boiler slag should not be used as blasting grit 

even though there is absolutely no documentation of any harm to people or the environment. They 

provided this testimony for one reason only to gain a competitive advantage over companies using boiler 

slag not for their concern over the environment. A lightweight aggregate company cautioned against the 

use of bottom ash in the production of concrete block again with no documentation of harm to the 

environment. In fact, prior independent testing has shown very little difference in testing between some 

manufactured lightweight aggregates, which by the way produces significant greenhouse gases when 

produced, and bottom ash. 

Again, this testimony was given to gain a competitive advantage over a competing CCP. 

So in reviewing the testimony from these public hearings, EPA will see examples of what will happen in 

the market place. If companies will use these EPA public hearings to gain an advantage, you can 

exponentially imagine what competitors will say about CCPs in the everyday marketing of their products 

if CCPs are declared hazardous in any way

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0072-1

Organization1:Harsco Minerals

Commenter1:Ray Arigoni

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

I am in support of regulating boiler slag under RCRA Subtitle D. 
532

Harsco takes employee health and safety very seriously; it has been 7 years since a lost workday case. We 

have participated in industrial hygiene surveys. We conduct regular safety meetings, and safety is an 

important part of how we do business every day. I am not aware of any health issues from any of my 

employees associated with exposure to boiler slag at my facility. 

Environmental permit compliance is also an important part of the way we conduct our business. In our 

many years of operation I do not know of any environmental issues caused by the boiler slag processed by 

my facility. 

Some facts that demonstrate that there is not reasonable basis for subjecting boiler slag to regulation 

under RCRA Subtitle C are as follows: 

When extremely hot, molten coal ash is quenched with cold water, the coal ash is vitrified and becomes 

the solid, glassy solid known as boiler slag. 

Because boiler slag is vitrified, it is a very durable and environmentally stable material that effectively 

immobilizes its chemical constituents by transforming any metals into inert metal silicates. 

Historically, boiler slag has always passed the TCLP testing and has never exhibited any hazardous waste 

characteristics. 

Boiler slag is not commonly stored in surface impoundments. I do not store any of my boiler slag 

products, raw or processed, in any surface impoundments. 

Regulating boiler slag destined for disposal as a special waste under Subtitle C would unfairly stigmatize 

beneficially reused boiler slag that my employees have been processing for many years. My customers 

will be confused and concerned about purchasing products that are seen to be essentially the same as a 

Subtitle C waste, even with a special waste designation. 

I recognize the need for proper and environmentally sound standards for regulating the 2 percent of boiler 

slag that is discarded, rather than beneficially reused, however, I feel the associated stigma that will be 

associated with Subtitle C will adversely impact my business

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0094-2

Organization1:International Brotherhood of Electrical Workers

Commenter1:Michael Sowko

Commenter Type: Union

Classification: Substantive

Comment Excerpt Text:

Placing CCRs under Subtitle C will greatly setback, if not destroy beneficial use efforts. Major projects 

that have or are currently taking place locally utilizing ash products from Cheswick and Elrama are as 

follows: Rostraver Airport runway safety area expansion. A total of 662,000 tons of material was 

beneficially used in a safe manner.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0121-2

Organization1:Alpha Natural Resources

Commenter1:Bill Schloemer

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

Furthermore, while it is understood that the EPA recognizes the importance of beneficial uses of CCR, we 

are very concerned that selecting the option of Subtitle C could negatively effect and provide 

disincentives to the beneficial use industry. Approximately 45 percent of CCRs are used in the beneficial 
533

use industry, for instance, one of our large mining operations in Greene County, PA provides significant 

volume of coal to Pennsylvania Power Generator, who sends much of its CCRs to a wallboard plant that 

make almost a million square feet of wallboard per year preventing the material from being placed in 

landfills and providing low cost building materials. With a hazardous waste classification, this process 

and thus coal contracts could be jeopardized. Thousands of jobs in this industry could be at stake and the 

onus of hazardous waste classifications that Subtitle C could put on the CCR. 

Common beneficial uses expand well beyond this example and include mine void filling, grouting, 

subsidence control, mine sealing, stabilization and treating acid mine drainage. All of these have very 

positive uses that help the environment. Yet, it's unfortunate these beneficial uses have been ignored 

during this review process. It is clear these are indeed beneficial uses and, in fact, allows some seams to 

be mined in an environmentally acceptable manner that otherwise could not be mined. 

In conclusion, we hope that you consider all aspects and impacts of your regulation before you make a 

final ruling on this matter. We feel that the controls offered by option of Subtitle D are adequate to protect 

human health and the environment

Response: The Agency acknowledges and appreciates the comment

Section 10.4.3 - EPA seeks info on actual instances where “stigma” has adversely affected beneficial 

use of CCRs and causes of these adverse effects (35222); EPA requests detailed analyses and 

data/info supporting claims that “stigma” will have adverse effects on beneficial use if EPA 

regulates CCRs destined for disposal (e.g., as special waste) under RCRA Subtitle C (35156, 35158)

Total Number of Submissions: 574

Total Number of Comments: 745

Comment Number: TRANS-ARL-0001-3

Organization1:American Road and Transportation Builders Association

Commenter1:Nick Goldstein

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

In order to preserve all of the benefits that recycled coal ash has provided to the transportation sector and 

the environment, ARTBA urges EPA not to regulate coal ash as a hazardous waste. On at least four 

separate occasions -- in 1988, 1993, 1999, and 2000 -- EPA has found coal ash did not warrant regulation 

as a hazardous waste. There's been no new scientific information since the last time this issue was 

broached to warrant reaching a different conclusion now.

Every element of the transportation construction process, from the suppliers of concrete to the contractors 

who handle constructions materials, would be affected by the stigma of a hazardous waste label for coal 

ash. Specifically, because of the increased expense of handling a hazardous waste, producers of coal ash 

would be resistant to continue providing it to concrete manufacturers.

Ultimately, without coal ash, concrete will become more expensive and less durable. This will not only 

increase the environmental footprint of the transportation sector because more concrete production will be 

necessary, but it will also increase the overall cost of transportation projects to the public.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0004-1

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group
534

Classification: Substantive

Other Sections: 3.1.2 4.2.4

Comment Excerpt Text:

Coal ash recycling can be done safely and effectively, and it creates significant benefits: Environmental 

benefits, improved product performance benefits, and economic benefits. 

Citizens for Recycling First supports stronger regulation of coal ash disposal and does not object to 

federal enforcement authority over that program. But if getting federal enforcement authority requires 

designating coal ash a hazardous waste in any setting, the effects on recycling in the United States will be 

decimating. 

The hazardous waste stigma is real. A hazardous waste stigma presents significant barriers at every step 

of the chain, from the people who generate coal ash to the people who specify its use to the people who 

incorporate it in products, right down to the end-use consumers. How many people want to have 

something that's called hazardous waste somewhere else in their home or their school or their driveway or 

their roads or many of the places that we can use this material productively?

While we appreciate EPA's statements that the Agency continues to support beneficial use, actions like 

creating the new label of "special waste" are not helpful in shielding the users from the potential liabilities 

of this. And actions like shutting down the coal combustion products partnership are actually having a 

detrimental effect to the recycling industry today well in advance of the conclusion of this rule. 

If the goal of this rulemaking is to protect the environment, then EPA should pursue policies that 

encourage more safe and effective recycling of coal ash as a preferred alternative to disposal. That means 

that we cannot use Subtitle C as a vehicle to promulgate those rules. 

Speaking for more than 1,500 citizens who care about the environment, please do not use Subtitle C as the 

way to enact these rules. We can improve disposal regulations in this country without destroying an 

industry that creates real benefits for our environment. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0009-2

Organization1:Boiler Slag Consortium

Commenter1:Sean Todd

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Two, there are already efforts in the commercial marketplace to stigmatize boiler slag. I have several 

published advertisements from trade journals that attempt to scare consumers and distributors by showing 

a skull questioning the safety of slag. If slag is designated as a Subtitle C waste, but listed as special 

waste, I would expect only more of these commercial scare tactics.

In response to EPA's specific question on stigma and the draft rule, it is difficult to quantify the effects of 

the possible stigma. These four or five advertisements have caused an uptick in requests for TLCP data. 

The industry cannot say that we have lost business yet. Opponents are simply attaching a false stigma of 

hazardous waste that raises questions, and if an audience is not informed, it will cause real problems for 

continuing recycling of boiler slag. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0010-1

Organization1:National Ready Mixed Concrete Association

Commenter1:Karthik Obla

Commenter Type: Trade Association
535

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

Based on the concrete industry's extensive use of and reliance on fly ash in concrete and our examining 

EPA's proposed rule, we have (inaudible) RCRA Subtitle C designation for CCRs' burn for disposal. 

Well-written exemptions for beneficial use will lead to the following unintended consequences for the 

concrete industry. 

One, an increase in production costs in the course of production. 

Two, an increase in potential liability for concrete producers. Currently the regulatory status of small 

amounts of fly ash in the waste streams from concrete production and construction is unclear. Any 

proposed rule should explicitly state that such waste streams from the concrete industry are exempt and 

not subject to such regulations. There will also be litigation which will target existing structures built with 

fly ash concrete. 

Three, potentially stricter state laws impacting beneficial use. For example, a proposed rule in the state of 

Maryland states that any product containing fly ash is to be disposed of in a special facility authorized to 

accept fly ash. Most states will establish similar laws. 

Four, the potential elimination of fly ash concrete. A hazardous waste stigma and fear of liability will 

drive specifying engineers, architects, and end-users to disallow the use of fly ash in concrete. For 

example, the Los Angeles Unified School District has banned the use of fly ash until the EPA has 

finalized its position. 

Five, there will be a drastic impact on the durability of our nation's infrastructure.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0053-1

Organization1:American Coal Ash Association

Commenter1:Thomas Adams

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

In an effort to create disposal regulations, the EPA has created a serious potential threat to one of the most 

successful recycling stories of this generation. Coal combustion products have been safely recycled in 

numerous applications including cement, concrete, wallboard, roofing products, agriculture, geotechnical 

fills, and many others for decades. Should the EPA elect to create a regulation which manages disposal 

under Subtitle C of RCRA, we believe coal combustion products will be stigmatized, resulting in market 

rejection of these products. Consumers who have a choice between using a material that's considered a 

hazardous waste for some reason and using a material that does not have such a stain will make the 

rational decision to use the nonhazardous option

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0055-1

Organization1:SEFA Group

Commenter1:Hank Keiper

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

The EPA proposal clearly states the Agency does not want to disrupt current recycling efforts. Members 

of the Agency stated during recent webinars they believe Subtitle C will dramatically increase CCB 
536

recycling. If that's true, then my company and I will benefit financially. So why do I argue against my 

own personal financial interest? 

My 25 years of experience as an engineer has taught me that engineers, architects and building owners are 

more risk averse than ever in our litigious society. I live near Chesterfield County, Virginia, where a 

Home Depot store was demolished in 1996. Coal combustion products were used to structural fill and 

incorrectly blamed for the building's settlement. Fourteen years later, people still prohibit the use of fly 

ash as an additive in concrete because of the Home Depot case. 

Fly ash was also listed as a possible cause of the problems relating to the Chinese drywall, but only if you 

dig much deeper will you learn there was no fly ash in the Chinese drywall, but the damage was done by 

mere association. My customers, concrete producers, are also concerned about stigma and liability. Under 

EPA's special waste proposals, two trucks will leave the power plant, one will turn right destined for 

disposal as hazardous waste, at the same time, the second truck with the exact same material on board will 

turn left and travel to my customer's plant with no restrictions other than the normal DOT. It's very 

difficult for the public, business owners and their attorneys to reconcile this concept. As an engineer, I 

believe the Subtitle D proposal option provides rigorous protection with common sense management 

practices. Agency staff freely admit the engineering safeguards in both proposals are virtually identical, 

so one must conclude that a Subtitle C designation is primarily an attempt to influence the commercial 

commodity market.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0058-2

Organization1:PPL Corporation

Commenter1:Craig Shamory

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

A federal Subtitle D nonhazardous waste regulation along the lines of Pennsylvania's successful program 

would support beneficial use of this large mineral resource. Conversely, federal Subtitle C hazardous 

waste regulation would severely limit and most likely eliminate beneficial uses including cement industry 

applications and mine reclamation. Beneficial uses create thousands of jobs and provide their own 

significant environmental benefits. The impact of beneficial use from the stigma of labeling CCRs as a 

hazardous waste is real and is already occurring. One of PPL's largest marketers of coal ash for cement 

products has had one of its main customers stop using coal ash. Why? Potential product liabilities if EPA 

actually regulates CCRs as a hazardous waste.

Furthermore, many companies have told our marketers they will not use coal ash in their products. Why? 

Because they don't want their products to contain an ingredient that would otherwise be subject to 

hazardous waste regulation.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0064-2

Organization1:Boral Material Technologies

Commenter1:John Scoggan

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.1.1

Comment Excerpt Text:
537

Fly ash has been used in the United States since the 1920s. Over 25 years ago the Federal Register 

encouraged the use of fly ash with any federally funded project with over $10,000 in it. Today fly ash is 

accepted as a routine product in concrete. There is no pent-up demand for fly ash as the EPA's financial 

model indicates. Concrete can be made without fly ash if the Subtitle C goes through and the stigma 

comes out. 

The EPA has already reviewed coal several times in both 1993 and 2000 and came to the conclusion that 

it did not warrant the hazardous label. Nothing has changed. The constituents of fly ash have not gotten 

any worse. The EPA believes that recycling won't hurt concrete or the use of fly ash with Subtitle C for 

disposal. We believe the EPA is wrong in this assumption. The stigma is real. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0092-2

Organization1:Separation Technologies and Essex Cement

Commenter1:Randy Dunlap

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

My point is, in this background on our company, is that as a processor and a marketer in one of EPA's 

positions that not only will a Subtitle C regulation not be a stigma to the use of coal combustion or 

residue recycling, but actually could enhance the utilization that our company, if, in fact, that was true, 

would be one of the biggest beneficiaries of that ruling, both from implementing and expanding our 

technology as well as providing the larger market for the CCRs. So, we come at it from a perspective that 

certainly if we believe that was a legitimate position, we would certainly come out in favor of Subtitle C. 

We are absolutely not in favor of Subtitle C. The stigma is real and we are a proponent of Subtitle D.

I'd like to make a few points, if I could, for your consideration, particularly as it relates to Subtitle C 

classification and the fact that it will not create a stigma for the beneficial use of CCRs. Those 

assumptions from the EPA, as I understand it, is a Subtitle C classification could actually increase the 

beneficial use because it will make the cost of landfilling more expensive, thereby creating an incentive 

for the utilities to either subsidize or further increase the use of CCRs. This assumption is incorrect, and I 

can assure you that this will not be the case for several primary reasons. 

A concrete producer operates on very slim margins, as you heard earlier today. The average profit margin 

is less than $5 and current market is less than a dollar. The use of fly ash and concrete is already a strong 

financial incentive for the utilization of fly ash in concrete. 

Second point is any potential cost savings that a producer might see from the use of fly ash would quickly 

disappear with just one lawsuit resulting from the hazardous classification of CCRs regardless of how 

frivolous the lawsuit might be. 

And last point, even if the argument could be made that an additional financial incentive could increase 

the use, this assumes that there's some vast untapped potential for increased usages of concrete. This is 

simply not the case. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0098-1

Organization1:American Coal Ash Association

Commenter1:Mark Bryant

Commenter Type: Trade Association

Classification: Substantive
538

Comment Excerpt Text:

I have previously submitted comments to the docket describing the negative stigma that EPA's proposal 

has created. I would like to reinforce those comments today by supplying additional evidence of how the 

public has become suspicious of any use of fly ash. This suspicion is due to the possibility that U.S. EPA 

will regulate CCRs as a hazardous special waste under RCRA Subtitle C. Attached to these comments is a 

newspaper article describing a county board member in Madison County, Illinois, questioning a 

technically sound use of fly ash as proposed by the Army Corps of Engineers. Specifically, this project 

involves the repair of the Alton to Gale Levee District. 

The low-cost option of the four options proposed include the use of fly ash as an ingredient. It is the lowcost option by a significant margin. This article provides clear evidence that the public does not 

understand the subtle distinction that EPA has attempted to create with the new hazardous special waste 

label. It also confirms that terms such as "hazardous" and "toxic" are misapplied by those opposed to 

beneficial use, by some in the media, and by a partially informed public. Sadly, this public discussion is 

unraveling years of sound science, demonstration, and market development. 

Based on the information available, this public board is opposed to this option because of the ash. 

Damage to the public perception of beneficial use has clearly occurred. Without any evidence, this 

negative stigma has been reported in the local media. The Corps of Engineers will have to incur 

significant additional expense or reduce the amount of levee repaired by this project if this low-cost 

option is not available due to stigma. Taxpayer-funded budgets are already being stretched. The beneficial 

use and recycling markets, which are already feeling the chill of possible C regulation, will be irreparably 

damaged if any RCRA Subtitle C options are chosen. 

In St. Louis, regional and local damage is already occurring. Small business private jobs will be lost, the 

engine that will drive our economy out of the recession. Good uses, EPA-supported uses, of ash are being 

lost. RCRA's time-tested methodology for determining whether a material is hazardous is being ignored. 

Significant government-funded research and demonstration has supported beneficial use and recycling for 

many years. This activity has added to the good science of our industry and what it is based on

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0100-1

Organization1:Headwaters Resources

Commenter1:Bill Gehrmann

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.5.1.6

Comment Excerpt Text:

As the Administrator has said, it's time for a commonsense approach. Coal ash does not qualify as a 

hazardous waste based on its toxicity. In fact, the EPA's proposed engineering standards are essentially 

the same under both the Subtitle C hazardous waste and Subtitle D nonhazardous waste approaches. 

The other piece to addressing disposal of coal ash is recycling. Over 40 percent of coal ash is beneficially 

used. As the EPA has pointed out, using fly ash as a partial cement replacement for Portland cement in 

concrete reduces greenhouse gas emissions. This use of coal ash also provides significant engineering 

benefits. These engineering benefits result in substantial increases in the life cycles of the products they're 

used in. Roads last longer -- twice as long -- stretching the dollars that we as taxpayers spend on building 

and maintaining our infrastructure. 

The stigma of hazardous waste that is already being attached to coal ash due to the potential of a Subtitle 

C designation will result in more coal ash being landfilled, more greenhouse gas emissions, and more tax 

dollars being required to improve our infrastructure. This stigma has already led to the specifiers moving 

coal ash from their specifications. Competitive product suppliers are using the negativity of the Subtitle C 
539

hazardous waste designation in their advertising. End users of coal ash have already begun to assess their 

liabilities under a Subtitle C designation with their lawyers and insurance carriers. Efforts to push these 

liabilities down the supply chain have already begun impacting many small businesses that have been 

built around products and service based on the recycling of coal ash. These businesses are facing tough 

decisions, and many will likely be forced out of business by a hazardous waste designation. 

As for the incentives of Subtitle C, I've been in the industry for 25 years. When recycling first started, it 

was often subsidized or the material was given away. It wasn't until the waste stigmas of the use of the 

project had been addressed that any efforts to substantially increase recycling started to take place. This 

also came through the EPA's support of recycling through its coal combustion products partnership. That 

support has helped promote the beneficial use of coal ash and has helped increase recycling by almost 50 

percent. 

Don't turn around and start sending all of that coal ash that could be beneficially used into landfills 

instead. The stigma associated with Subtitle C has already begun to do this. If the desire of the EPA is to 

have federal jurisdiction, find another way. Don't do it under Subtitle C. Don't send more coal ash to the 

landfill

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0117-2

Organization1:Union for Jobs and the Environment

Commenter1:Bill Cunningham

Commenter Type: Union

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

We are pleased to see that EPA has expressed its commitment to continued recycling of CCRs. We 

believe however that regulation of CCRs under the Hazardous Waste Subtitle C would stigmatize the use 

of these materials in construction products even if the materials are termed special waste. There is little 

doubt that the public would respond negatively if asked if they would approve recycling materials under 

hazardous waste. With uses of CCRs increasingly conscious of product liabilities, recycling is highly 

likely to be set back by regulation under Subtitle C.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0119-2

Organization1:

Commenter1:Jim Rohrbach

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Based on my experience in the industry, there is no doubt that the stigma associated with regulating coal 

ash under the Subtitle C approach would effectively cripple the ability of this entirely nonhazardous 

resource as defined by the character of the material to be reused as it is today. 

A couple of examples. Concrete manufacturers will be extremely reluctant to handle a material that would 

be considered hazardous if disposed but okay to use for, say, residential areas or schools. We get 

questions already, do my workers need to be especially trained? Do the products that use coal ash become 

hazardous if and when they are ultimately disposed? I think a bigger issue is that the power plants who 

produce the ash are going to be very reluctant to allow the use of ash. Why take a chance on that liability? 

The hundreds of millions of dollars of extra costs based on disposal versus reuse will be passed on to you, 

me, and everyone else who uses electricity in this country.
540

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0125-3

Organization1:

Commenter1:Jonathan Barker

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

It must be noted that one of the other things that you haven't talked about are some of the other industries. 

There was a gentleman here earlier who talked about the use of gypsum and I can personally testify that I 

have many clients that were utilizing gypsum as an agricultural amendment for crops and their utilities 

have decided not to put those materials on the ground anymore so that these farmers now have to buy 

chemicals and put other things on the ground as opposed to using gypsum products that come from power 

plants. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0128-2

Organization1:International Brotherhood of Electrical Workers

Commenter1:Bruce Burton

Commenter Type: Union

Classification: Substantive

Comment Excerpt Text:

Regulation of CCRs under Subtitle C, that is hazardous waste, will stigmatize the use of fly ash in 

construction products even if the material is termed special waste. There would be significant reluctance 

to allow CCRs in construction materials if it is regulated as a hazardous waste.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0003-1

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.1.1 4.2.4

Comment Excerpt Text:

Today, I would like to make four key points that address common misconceptions that have been 

frequently stated at these series of public hearings. 

Number one: Coal ash does not qualify as a hazardous waste based on its toxicity. This is not an option. It 

is a fact that standardized tests show that the levels of metals in coal ash are below the amounts 

established for listing it as a hazardous waste. In recycling settings, the toxicity of coal ash is similar to 

the toxicity of the materials it commonly replaces. 

Number two: EPA's proposed Subtitle D and Subtitle C regulatory approaches are both protective of 

human health and the environment. The landfill construction standards proposed are essentially the same 

in both, and so EPA's Subtitle C proposal is not "stronger." The key differences between the proposals 

boil down to who gets to enforce the new regulations that EPA establishes, new regulations that are far 

from "business as usual" in either option. 

Number three: Stigma is real. Labeling coal ash as hazardous waste when it is disposed creates enormous 

barriers to recycling. Producers, marketers and users of coal ash have been unanimous in expressing this 
541

fact during the public hearings. The only people claiming the stigma is not real are people with no direct 

involvement in the recycling effort. 

And number four: Stigma is already taking a toll on recycling just as a result of this debate. Specifiers and 

users of coal ash are already beginning to remove the material from projects because of regulatory 

uncertainty and fear of future liabilities. Manufacturers of products that compete with coal ash are 

actively using this forum to make false claims about dangers of using coal ash. And we have seen 

numerous witnesses at these very hearings express fear regarding long established beneficial uses of coal 

ash, proving the point that the drumbeat of the terms "toxic" and "hazardous" dramatically affects 

consumer behavior. 

The people who work everyday to recycle coal ash are extremely disheartened by this debate. Many of 

them have devoted entire careers to do something good for the environment. They now feel betrayed by 

the Environmental Protection Agency and by environmental groups who appear resolved to ignore and 

sacrifice the benefits of recycling in their single-minded push for federal enforcement authority. 

New coal ash disposal regulations under Subtitle D will make meaningful improvements to disposal 

practices and do it faster than Subtitle C can. Subtitle D will protect human health and the environment, 

and will avoid the creation of an unnecessary and harmful hazardous waste stigma that will wreck efforts 

to safely and responsibly recycle millions of tons of material that otherwise will find its way to landfills. 

Subtitle D is the right choice for the environment. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0017-2

Organization1:We Energies

Commenter1:Art Covi

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

We strongly favor the implementation of a Subtitle D non-hazardous approach to fill the need for 

consistent national regulation for CCPs.We are concerned that a Subtitle C hazardous approach will 

introduce a regulatory barrier and place a stigma on CCPs with our customers. In fact, the stigma of a 

hazardous waste label on CCPs would not encourage beneficial use. Unfortunately, this issue has already 

had a negative effect on some valuable beneficial uses. 

Subtitle C rulemaking provisions are over-reaching and a serious concern for We Energies, especially in 

light of our long-term commitment to develop a wide range of beneficial uses. The Subtitle D approach 

will establish national standards similar to those employed for municipal waste. The EPA has the 

authority to step in and manage noncompliant state programs and take action under the endangerment 

provisions of RCRA. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0018-2

Organization1:ALCOA Power Generating, Inc.

Commenter1:Scott Darling

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

The use of CCRs in beneficial reuse will be harmed by this designation. As we've heard, there are a 
542

number of groups already calling for post end-of-life use assessments of encapsulated and unencapsulated 

materials. The potential for litigation will harm the reuse of these materials. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0020-2

Organization1:Charah, Inc.

Commenter1:Nathan Boone

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

EPA's assumption that Subtitle C regulation will result in an increase in beneficial use is contrary to our 

experience as a daily participant in the beneficial use marketplace. 

As a company, we see a significant number of issues and exposures to unwarranted risk that we feel will 

present themselves through the handling of materials that are viewed as hazardous in some applications 

yet exempt in others even when they originated from a common process and location. These concerns are 

relative not only to the marketability and associated stigma but to the general handling and operations 

required for permitted disposal as well. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0042-1

Organization1:Ecologic Tech.

Commenter1:Jerry Liu

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Ecologic Tech strongly believes that if the EPA reclassifies fly ash under Subtitle C, it will place a 

significant stigma on the substance that will retard any growth in industries that seek to utilize this waste 

material. I've been told that the EPA models assume that there would be little if any negative economic 

impact from any proposed action. I can only speak for myself, but in our case this is completely untrue.

As an environmental technology firm that is dedicated to finding new ways to recycle fly ash, Ecologic 

Tech is exactly the kind of clean tech company you would think the EPA would want to succeed. 

However, our company has already felt a direct negative impact simply with EPA's decision to consider 

this matter. One potential client in Georgia backed out of a licensing discussion last month due to his 

concern that he would have to spend an unknown amount of additional capital to educate the public on 

why his fly ash bricks would be safe. We have another interested party in North Carolina who cannot get 

local distributors to support him because they fear that these bricks will be unsellable. 

These kinds of contracts are the lifeblood of my company. A standard licensing agreement has the 

potential of yielding millions of dollars in revenue for our company. As a result of these lost 

opportunities, I've had to reduce staff and now must seek outside funding to remain viable. I cannot 

believe that these are kinds of results the EPA would want for businesses it purports to nurture with the 

Bevill exemption. 

It is true that under both options the EPA touts and encourages beneficial reuse. However, the negative 

halo of any Subtitle C designation would make life very difficult for those trying to find new ways to use 

fly ash. In our case, well-financed clay brick competitors could easily cripple a fly ash brick manufacturer 

by using Subtitle C classification as a club to scare off potential customers. 
543

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0088-2

Organization1:Lafarge North America

Commenter1:Dave Diedrick

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

A Subtitle C ruling, even as a "special waste" is perceived as a hazardous material. Unfortunately, 

perception is reality, and even with the rule in the proposed stages, we have had customers move away 

from fly ash and other CCRs due to liability concerns. Quoting one of our precast customers who ships 

products throughout the United States: *"If fly ash is classified as hazardous, what will happen to the 

projects that have been sold over the past six years?" *"Will these products be considered, too?" *"What 

other products do you sell that can replace fly ash?" 

Within the past four months, this customer has removed fly ash from their operation and is now using 

straight Portland cement, resulting ultimately in a more expensive product and in the generation of 

additional CO2. All of this with no science to support such a classification. Ultimately, what have we 

accomplished? 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0099-2

Organization1:Lafarge North America

Commenter1:Jim Rosenmerkel

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

If EPA imparts the stigma of classifying fly ash as a hazardous material, no other contractor will risk 

using it, owners will reject the method and someone will need to find disposal sites for 65 million tons of 

this material each year in the future. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0101-1

Organization1:Dynegy Midwest Generation

Commenter1:Jeff Ferry

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Throughout the CCR proposal, EPA has stated its belief that regulating CCRs as a hazardous waste would 

not create a stigma against the use of fly ash for soil stabilization or as a concrete additive. The evidence 

in Illinois belies that. The Army Corps of Engineers has proposed a project to strengthen the levees along 

the Mississippi River. One of the Corps alternatives involves an injection of lime and fly ash grout into 

the levee side slope. The Corps believes that this alternative would safely and cost-effectively strengthen 

the levees. Even though the EPA has not yet finalized its rulemaking, several comments already oppose 

the use of fly ash in this project through a perception that the ash is toxic and the metals will be released 
544

into the environment. If the EPA designates CCR as hazardous, these arguments will become 

commonplace whenever CCR is considered for soil stabilization or reuse in other products.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0108-2

Organization1:LifeTime Composites, LLC

Commenter1:Mike Thorpe

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

The composite lumber industry is very competitive and if fly ash has the association as a hazardous 

material, the negative connotation would seriously affect the sale and the use of products in our industry. 

Our marketing group has surveyed that a hazardous designation would significantly degrade the public 

opinion of fly ash in any products that are manufactured with recycled fly ash.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0124-2

Organization1:City Water, Light & Power, Springfield, IL

Commenter1:Christine Zeman

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 9.5.2

Comment Excerpt Text:

We seek but cannot always find beneficial uses for our ash and often must pay for its reuse, especially in 

the present economy. The increased risk associated with its classification as hazardous will increase the 

cost for its reuse as we've already heard today, and will dissuade many recyclers from accepting it due to 

CERCLA strict liability scheme.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0127-1

Organization1:CCP Utilization

Commenter1:Keith Bargaheiser

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

My issues today address the stigma associated with the proposed rule and a suggestion for compromise. I 

was involved in a therapeutic riding program in Ohio which aided disabled children, and on rainy damp 

days these children were unable to go riding due to the fact that it was dangerous. Coal combustion 

products, bottom ash, was looked at being utilized for the project, and at the very end the owners decided 

to not do this due to the fact of what happened in the TVA, and all the conversations about toxicity and 

being a hazardous material, they felt the liability was too high. We showed them that there's many 

materials that we utilize today such as shampoos, foods, animal foods, bibs for our children and fillings in 

our teeth that have more toxic chemicals than what bottom ash had, but it didn't matter.

Response: The Agency acknowledges and appreciates the comment
545

Comment Number: TRANS-CHI-0130-1

Organization1:Boral Composites, Inc.

Commenter1:Tom Zimmerman

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

A large part of our product utilizes a specific coal combustion residue or CCR. This offers our product an 

enhanced performance as well as a green content. We utilize the CCRs as rapidly renewable materials and 

recycled content. 

Our customers are not typically scientists or environmental policy makers. They will likely not be aware 

that the EPA has formally encouraged the use of CCRs since 1983, or that the EPA has twice ruled that 

CCRs are non- hazardous, going so far as to form the Coal Combustion Products Partnership in 2003, or 

that the USGBC, US Green Building Council, American Society for Testing and Materials (ASTM) or the 

American Concrete Institute all endorse and encourage the use of CCRs. Unfortunately, our customers are 

more likely to hear inaccurate information about CCRs and that their beneficial uses are from uninformed 

or biased media sources, negative stigmas that will not only exacerbate with unwarranted changes -- I 

hate speaking in public -- designated Subtitle C. 

We currently support the EPA's effort to protect human health and the environment. We further believe 

that CCR disposal should be done in a responsible manner to avoid ash spills like the tragic storage 

failure at the TVA's Kingston, Tennessee plant in December 2008. However, poor storage facilities or 

mishandling of designated non- hazardous materials should not be grounds for changing the classification 

of the material itself, therefore jeopardizing one of the most successful recycling programs in the US 

history. 

Boral Composites is only a small startup business but a great example of green-tech, advanced 

manufacturing opportunities that our economy desperately needs. As I mentioned, last Thursday we broke 

ground on our LEED facility going into North Carolina. It's a $13 million investment on close to four 

acres of land. This facility will create 25 jobs when completely built out, in addition to supporting another 

25 sales shops across the country. 

The decision that the EPA makes around CCR classification will directly impact this new green-tech 

business, these new job opportunities and future job opportunities that this business would create. The 

negative stigma associated with hazardous classification through Subtitle C is real and will virtually 

eliminate demand for these products and our business overnight. We want to find a more responsible way 

to deal with CCR storage and storage issues that the Kingston, Tennessee plant has brought to light. 

Subtitle C is not the answer

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0218 -2

Organization1:National Ready Mixed Concrete Association

Commenter1:Richard DeBoer

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.2.4

Comment Excerpt Text:

Based on the concrete industry's extensive use of and reliance on fly ash in concrete, and after examining 

the EPA's proposed rule, we have determined that RCRA Subtitle C designation for CCRs bound for 

disposal while retaining exemptions for beneficial use will lead to the following unintended consequences 

for the concrete industry: 1. An increase in production costs and the cost of construction due to increased 

regulations for handling fly ash. 2. An increase in potential liability for concrete producers. 3. Potentially 
546

stricter state laws impacting beneficial use. 4. The potential elimination of fly ash in concrete. Fear of 

liability will drive specifying engineers, architects and end users to disallow the use of fly ash in concrete.

5. There will be a drastic impact on the durability of our nation's infrastructure. There is an increased 

service life of roads, bridges and structures built with concrete containing fly ash. Other economically 

viable alternatives for durable concrete do not exist.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0006-1

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

At its first three public hearings, the EPA has heard from dozens of people who are actively involved in 

the recycling of coal ash to produce significant environmental benefits, including millions of tons in 

annual reductions of greenhouse gas emissions. These people include producers, marketers and users of 

coal ash and they have unanimously testified that designating coal ash as hazardous waste when destined 

for disposal will create a stigma that will ruin the recycling industry. 

A handful of witnesses, none of them actually involved in recycling coal ash, have stated that stigma is 

not real. They have said that other hazardous materials get recycled and that the higher costs of disposal 

that come with a hazardous designation will incentivize people to recycle more. Today I would like to 

point out why those positions are just plain wrong. 

First of all, examples of other hazardous materials that get recycled are not comparable to coal ash. Most 

examples cited by stigma deniers are of materials that get reprocessed before they are reused. Coal ash is 

not reprocessed before it is recycled and is mechanically and chemically identical to coal ash that is 

disposed. This opens the door to litigation that will ask, if it's hazardous over there, why is it not 

hazardous over here? 

Furthermore, most examples cited by stigma deniers are of materials that are reused by the very industries 

that produced them. Coal ash is widely dispersed to literally thousands of locations in every community 

and is placed in products that come in direct contact with everyday users. 

Finally, many examples cited by stigma deniers are materials that do not compete with alternative 

products. Your gasoline-fueled car cannot operate without gasoline. Concrete and other products can be 

made without coal ash. EPA has already heard testimony that some manufacturers of competitive 

products are already using the prospect of a hazardous waste designation to sow fear among coal ash 

users. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0011-3

Organization1:Tampa Electric Company

Commenter1:Randy Melton

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 5.5.5.1 9.5.2

Comment Excerpt Text:

Listing CCRs as a special class of hazardous waste will create an immediate stigma on these valuable 

products, resulting in drastic declines in sales. 

Onsite stockpiles of CCRs will grow at an alarming rate. Offsite disposal will skyrocket and landfills 

nationwide will be stressed beyond their capacities. Shipping of CCRs for disposal will result in increases 

in fuel usage and tailpipe emissions. Power generation costs will increase in response to burdensome 
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equipment retrofits and operating requirements. Utility customers throughout the country will suffer 

significant rate increases. Many environmental benefits from the beneficial reuse of CCRs, including 

reduced demand for mined minerals, reduced consumption of valuable landfill space, and reduced 

greenhouse gas emissions, will diminish.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0020-2

Organization1:SEFA Group

Commenter1:Jimmy Knowles

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Listing and regulating coal fly ash under Subtitle C will reduce the volume and value of fly ash that is 

beneficially used. Coal fly ash has always had some level of stigma attached to it. 

However, if the EPA were to list coal fly ash as a special waste under Subtitle C, then the public will 

consider it to be a hazardous waste. EPA may think that calling it a special waste -- rather than a 

hazardous waste -- is a clever way to avoid stigma and, therefore, maintain robust market in the concrete 

industry. However, from the perspective of the general public, the term "special waste" is a distinction 

without a difference. The public will consider it to be hazardous.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0021-1

Organization1:Charah

Commenter1:Charles Price

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

Beneficial use of CCRs save landfill space and avoid use of manufactured products which require virgin 

materials and energy to manufacture. A successful CCR recycling program is good for the environment 

and should be supported by EPA through its regulations. Regulations of CCR disposal can be done 

without causing harm to the recycling program that are prevalent throughout our U.S. economy. The 

stigma associated with regulating CCBs under hazardous waste Subtitle C is real. 

I have an ad from the manufacturer of lightweight material that competes with bottom ash. The ad reads: 

"WARNING SIGNS OF UNHEALTHY RAW MATERIAL ARE HERE AND IT'S CALLED COAL 

BOTTOM ASH." The ad goes on to say the liability issues are too great to allow this waste material to be 

used in building materials. EPA's assumption that Subtitle C regulations will result in an increase of 

beneficial use are not correct. 

Customers that use CCBs are concerned over the labeling of CCBs as a hazardous material. Our 

experience and this example prove this recycling will decrease, if not end all together, if EPA regulates 

CCRs under Subtitle C. Simply stating that CCRs are exempt if beneficially used is not sufficient to put 

the legal liability fears to rest. 

The protective features proposed by the EPA for CCRs landfills under Subtitle C and Subtitle D are 

essentially the same; therefore, a Subtitle D regulation program by EPA's own description will provide 

the necessary protection and would avoid further damage to the CCP recycling industry. 

Subtitle D approach is clearly the appropriate record for a mechanism that will protect the environment 
548

and avoid damage to the recycling industry. Regulations under the Subtitle C approach will not provide 

added environmental benefits as described by EPA in its economical analysis. EPA assumes the growth in 

the beneficial use of CCRs will not occur. The stigma impact will harm our industry and result in the loss 

of jobs

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0030-3

Organization1:Santee Cooper

Commenter1:Jay Hudson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

In spite of the Rule's claim to the contrary, labeling gypsum and other CCRs as hazardous waste will 

impact recycling. Examples which EPA cites to support the claim that hazardous waste regulation would 

actually increase beneficial use do not support that viewpoint. In a case of used oil, a program EPA uses 

as a model for CCR hazardous waste regulation, EPA determined not to regulate used oil as a listed waste 

precisely because of the adverse impact on used oil recycling. 

We are already seeing negative impacts from the proposed regulation on recycling efforts. Companies 

selling alternative raw materials to recycle bottom ash are touting their product as nonhazardous in an 

attempt to gain market share in the lightweight aggregate market. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0031-1

Organization1:Sphere One, Inc.

Commenter1:Ryan Brownhill

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

I need to address the inherent stigma issues that have and will occur. The EPA has repeatedly stated they 

don't believe a Subtitle C regulation will create a stigma against CCPs and they, in fact, increase the 

amount of CCPs recycled. 

I can tell you emphatically, that is simply not true. We talk to our customers every day and can say with 

certainty that a Subtitle C designation is and will absolutely stigmatize CCPs. In fact, the negative stigma 

has already affected our business in several ways. One major supplier suspended operations of their sites 

until the EPA issues a final ruling and the supplier sees that CCPs are not classified as nonhazardous 

waste. The loss of this supply has caused a shortage of a raw material, and we will lose a significant, 

valuable product line and jobs will be at risk. 

During a recent contract negotiation, a supplier has insisted on wording that will immediately void the 

contract if cenospheres are listed as a Subtitle C waste. The special waste designation won't make a 

difference. Last year we began working with a company on developing a new application for 

cenospheres. Once the proposed Rule came out, the work was suspended. They were not willing to R&D 

time and money on potentially hazardous material. 

What's important about all these examples is that they show the stigma is real and is negatively impacting 

our business right now, even though there is only the possibility of a Subtitle C designation. It stands to 

reason that this statement can only get worse if there is a hazardous designation. 
549

By far, the most compelling proof of the negative impact comes from our existing customers. Our largest 

customers told us that they will stop use of cenospheres should CCPs be classified as a Subtitle C waste. 

What this adds up to for us is the effective end of our business. Between the immediate loss of our 

customer base and the loss of our raw material supply, we will not be able to continue a viable operation. 

The EPA has a great responsibility here. The marketers of CCPs are united in their stance that Subtitle C 

will carry a stigma and damage the reuse of CCPs. It isn't insignificant; it's real, hurting real businesses, 

hurting real people. The environment can be protected with strong regulations under Subtitle D. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0032-1

Organization1:Titan America (Separation Technologies and Essex Cement)

Commenter1:Randy Dunlap

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

I must admit that it is somewhat frustrating to continue to hear the EPA state that you are not convinced 

by the stigma argument, when those of us in the industry so clearly see the serious risk to beneficial use. 

And the arguments expressing concern over the potential stigma are coming from those in the industry 

that are not impacted, certainly not negatively impacted, by tough regulations of CCR landfills. In fact, 

those making the stigma argument would actually stand to benefit from Subtitle C if the EPA's 

assumptions are correct. 

So why do we oppose Subtitle C? We oppose it because EPA's arguments simply are not credible. If I 

could just give you a couple of small examples: One Sierra Club ad: "Coal ash -- it's toxic -- it's 

everywhere -- we must act now!" 

I must apologize, but I missed where it clearly stated -- or stated anywhere, for that matter -- that 

beneficial use is okay. The legislative director for Natural Resources Defense Council makes the 

argument for us in his blog where he and many other proponents of "C" disputes the stigma claim by the 

CCR industry. He quotes a recent survey by the NRMCA, the National Ready Mix Concrete Association, 

to support his position that stigma argument is a misdirection. Quote, "A survey by the NRMCA shows 

that companies that use fly ash, over 69 percent will continue to use it even if it is 'hazardous.'" So I guess 

as an industry, we are to accept a decline over a third of our sales, over 5 million tons per year, and this is 

just encapsulated uses alone. It doesn't consider that the other implications by homeowners and other 

specifiers that will refuse to use fly ash because of hazardous designation. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0063-4

Organization1:National Ready Mixed Concrete Association

Commenter1:Gary Mullings

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

Based on the concrete industry's extensive use of and reliance of fly ash in concrete, and after examining 

the EPA's proposed Rule, NRMCA has determined that Subtitle C designation for CCRs down for 

disposal while retaining any exemptions for beneficial use will lead to the following unintended 

consequences for the concrete industry. Number one, an increase in production costs and costs of 

construction resulting in less concrete production, thus, less opportunity to use fly ash in a beneficial way. 

Number two, an increase in potential liability for concrete producers. 
550

Currently, the regulatory status of small amounts of fly ash in waste streams for concrete production is 

unclear. Any proposed Rule, including Subtitle D, must explicitly state that small waste streams from the 

concrete industry are exempt from such regulations. There will also be litigation, which will target 

existing structures built with fly ash concrete. Three, potentially stricter laws impacting beneficial use; for 

example, there's a proposed Rule in Maryland which states that any concrete containing fly ash to be 

disposed of in a special facility authorized to accept fly ash. Number four, the potential elimination of fly 

ash concrete. A hazardous waste stigma and fear of liability will drive specifiers, engineers, architects, 

and end users to disallow fly ash in concrete. For example, the Los Angeles Unified School District has 

banned the use of fly ash until this panel and EPA finalize this Rule. And, number five, there will be a 

drastic reduction in fly ash use in our nation

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0091-2

Organization1:Carolina's Ready Mixed Concrete Association

Commenter1:William Arent

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The Carolinas Ready Mixed Concrete Association urges the EPA to consider the technical and 

sustainability implications of classifying fly ash as a hazardous waste under Subtitle C of RCRA. 

Designating fly ash as a hazardous waste will result in little or no fly ash being used in concrete in the 

United States. The concrete industry will no longer specify its use due to the stigma of this designation

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-CLT-0099-2

Organization1:Advanced Wall Technologies (AWT), LLC

Commenter1:Carl Dudding

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1 3.1.2

Comment Excerpt Text:

I'm opposed to the management of CCRs as a Subtitle C material and strongly support management under 

Subtitle D. To the best of my knowledge, CCRs are the largest, single recycling/reuse success story in the 

United States. They are a useful construction material with uniform physical characteristics, and a Subtitle 

C designation will significantly jeopardize this ongoing success story. 

In my opinion, the stigma that will be created will prevent continued high usage rates of CCRs and is 

currently preventing development of innovative usage of these materials. At a minimum, the management 

of these materials under Subtitle D, instead of Subtitle C, will allow continued current and future 

beneficial reuse development. 

From a technical perspective, the EPA's own proposed regulations have the same liner systems for both C 

and D and effectively change the way wet storage is conducted, which I am fine with. The Subtitle C 

designation will add on a significant amount of time for permitting, however, as facilities try to change 

from existing systems to new requirements. This will occur at the time these facilities need additional 

capacity required by these regulations as they struggle to keep up with demand. 

I am strongly in favor of utilization of geomembrane liner systems in large structural fills applications, 

but with properly designed engineering controls that offer maximum protection of the environment. I also 

believe that CCRs used in this manner can be considered beneficial reuse.
551

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0099-5

Organization1:Advanced Wall Technologies (AWT), LLC

Commenter1:Carl Dudding

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

The Subtitle C designation of CCRs will significantly impact the growth of the AWT process 

implementation. The uncertainty and stigma to date have already created adverse impacts.And all CCRs 

used in the manner by AWT are fully enclosed in geomembrane and geosynthetic systems preventing 

adverse environmental impact. I've attached a diagram in the written portion of my testimony.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0106-1

Organization1:

Commenter1:Craig Wallace

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1 10.1.1

Comment Excerpt Text:

I'm a coal ash marketer. Based on my tacit and explicit expertise of concrete coal ash marketing, I can 

unequivocally testify that linking coal ash with other hazardous by-products is a monumental mistake if 

you're trying to promote coal ash for beneficial use. It is a bad idea that is going to have unintended 

consequences, not only in this country but other countries around the world that follow our government's 

lead. Without EPA's unabashed support for beneficial uses, demand and marketability of coal ash will 

decrease. EPA support is already waning: The termination of EPA's C2P2 website is a verifiable example. 

A hazardous waste labeled coal ash is totally unwarranted. Both Subtitle C and Subtitle D proposals 

accomplish the end goals for citizens impacted by coal ash disposal. Let me point out, Kingston is a 

federal owned and operated facility that had years of unstable sludge deposits that triggered the spill that 

is serving as the catalyst for federal oversight proponents today. 

Recycling coal ash benefits our environment and contributes to the conservation of our resources and 

reduction of CO2 gases. Putting coal ash disposal in the same group with other Subtitle C wastes thinking 

it will have no effect, or a positive effect on beneficial use, is pure nonsense. We are going to have to 

dispose of more coal ash if we go Subtitle C. 

Today we are asked to provide verifiable evidence that the hazardous stigma has detrimentally affected 

beneficial use. I'd like to know how we are supposed to do that and prove that impact to something that 

has not yet happened. This is a very convenient position for Subtitle C proponents and very disheartening 

for those of us who know the coal ash markets. 

I do not believe there is a person in this room who thinks what happened in Roane County is acceptable. 

Beneficial use marketers understand there are gaps in current disposal rules. These gaps will be fixed with 

Subtitle D. So let's fix the problem without stigmatizing coal ash as hazardous waste. 

But the EPA continued to support coal ash beneficial use without creating an oxymoron scenario that is 

going to reduce demand for coal ash. 

Response: The Agency acknowledges and appreciates the comment
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Comment Number: TRANS-CLT-0110-1

Organization1:Boral Industries

Commenter1:Terry Peterson

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Sustaining a Subtitle D classification has created confidence amongst end users and producers that has 

allowed this program to flourish and ultimately eliminate the need to dispose of millions of tons of CCPs 

as well as the avoidance of millions of tons of greenhouse gas emissions. 

I've recognized during these hearings that some would argue that Subtitle C classification is the 

appropriate response to isolated occurrences of poor landfill management. Throughout the years, Subtitle 

C will undo and potentially reverse 30 years of recycling efforts, and more importantly, eliminate 

investment in new technologies and products which are required to further promote today's recycling 

efforts. 

Investors, whether private or taxpayers, do not put money into hazardous waste. Just as importantly, 

consumers have no desire to purchase products that contain hazardous waste. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0118-1

Organization1:SCANA Corporation

Commenter1:Jack Preston

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 10.1.1

Comment Excerpt Text:

This leads us to question number two: What are the implications if CCRs are classified as hazardous 

waste? Well, for starters it pretty much effectively kills the commercial market for products manufactured 

with the recycled CCRs. Nationwide over 43 percent of CCRs are recycled annually for use in cement and 

concrete. At SCE&G, we have successfully recycled over 45 percent of the CCRs we've produced over 

the past three years, mainly for use in cement and concrete industry. 

End users of CCRs have warned us directly that subjecting CCRs to hazardous waste regulation will 

significantly curtail the beneficial use of CCRs, if not ending it entirely. The irony of this is that such a 

move would result in significant negative impacts to the environment. 

For an example if CCRs such as fly ash are no longer viably available for things like highway and 

building construction, then other things have to be mined and found to replace it. It's estimated that the 

beneficial use of CCRs saves over 73 trillion BTUs of energy, which reduces greenhouse emissions by 

12.4 million metric tons of CO2. It also has an estimated value of over $2 billion in the US economy. 

Having to landfill this extra ash is approximately a 50-fold increase in the volume of hazardous waste 

disposed of annually in landfills. That doesn't even take into consideration the hundreds of millions of 

tons of existing CCRs. 

This will create a true crisis, an immediate and critical shortfall in hazardous waste disposal capacity that 

cannot be mitigated by new landfills. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0001-2

Organization1:Texas Coal Combustion Products Coalition
553

Commenter1:Mike Nasi

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.5.2.3

Comment Excerpt Text:

I'll spend the time that I have today imploring EPA to remember and look beyond the PR campaign, the 

negative PR campaign of the day, and remember that coal ash recycling is, in fact, one of the great 

American environmental success stories, a success story and gains that all could be lost if the wrong 

approach is taken with this rule making. 

Back in the early 1990s, Texas had the regulatory foresight to develop a framework that responsibly 

managed the disposal of CCBs while at the same time expanding the markets for CCP recycling. That 

leadership led to an increased recycle rate of 15 percent in 1992, all the way to 70 percent in 2005, 

successes that were recognized by EPA when it commissioned a study in 2005 to identify and describe 

Texas as a model state. 

In that report, I quote, this report said: "Other states with less successful CCP utilization can learn from 

what Texas has done right and implement similar activities in their own states." 

That report identified as a direct threat to continued successful recycling the stigma that would result from 

Subtitle C regulation. There are many that would suggest that stigma is not real. We would submit to you 

that that 2005 report establishes that it's real. The federal agencies that have commented to EPA already 

on the rule establishes that it's real. You will hear from many today who spent the large part of their adult 

lives successfully recycling CCPs, who believe and are convinced that the stigma is real. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0002-2

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 10.1.1

Comment Excerpt Text:

There are two regulatory options before us for comment today, the Subtitle C hazardous and Subtitle D 

non-hazardous. Under both proposals, new landfill engineering standards are essentially the same. 

Landfills won't be any stronger or better under Subtitle C, but coal ash recyclers will be saddled with a 

hazardous waste sigma that will make continued recycling of this resource difficult or impossible. 

For those who deny the existence of stigma, I would ask just two questions. First, if the EPA is right and a 

hazardous waste designation would motivate people to recycle more, then why are the people who make 

their livings as recyclers unanimously opposed to it? Wouldn't they be in favor of something that would 

help them make more money? Perhaps it is because the people who recycle ash every day are well aware 

of the response you and your neighbors would give to the second question: Would you want something 

that is classified as hazardous waste in your home, school, or workplace? 

The EPA should enact tougher coal ash disposal regulations, but it should do so without unnecessarily 

classifying coal ash as a hazardous waste and risking the destruction of a recycling effort that helps 

accomplish everyone's goal of a cleaner environment. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0012-2

Organization1:National Ready Mixed Concrete Association
554

Commenter1:Kevin Walgenbach

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

Based on the concrete industry's extensive use of and reliance on fly ash in concrete, and after examining 

EPA's proposed rule, NRMCA has determined the RCRA Subtitle C designation for CCRs bound for 

disposal, while retaining exemptions for beneficial use, will lead to the following unintended 

consequences for the concrete industry: One, an increase in production costs and the cost of construction; 

two, an increase in potential liability for concrete producers. 

Currently, the regulatory status of small amounts of fly ash in waste streams from concrete production 

and construction is unclear. Any proposed rule should explicitly state that such small waste streams from 

the concrete industry are exempt and not subject to such regulations. There will also be litigation which 

will target existing structures built with fly ash concrete. 

Three, potentially stricter state laws impacting beneficial use. For example, a proposed rule in the state of 

Maryland states that any product containing fly ash is to be disposed of in a special facility authorized to 

accept fly ash. More states will inevitably establish similar laws. 

Four, the potential elimination of fly ash concrete. Hazardous waste stigma and fear of liability will drive 

specifying engineers, architects, and end users to disallow the use of fly ash in concrete. For example, the 

Los Angeles Unified School District has banned the use of fly ash until the EPA has finalized its decision. 

Lastly, five, there will be a drastic reduction in the durability of our nation's infrastructure if fly ash in 

concrete is disallowed

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0016-2

Organization1:American Electric Power

Commenter1:David Miller

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

AEP strongly opposes the regulation of CCRs as hazardous waste under Subtitle C of RCRA. Even 

though CCRs would be labeled special wastes as proposed, EPA openly admits that CCRs special waste 

would be subject to full hazardous waste controls just like any other listed waste. AEP believes regulating 

CCRs as a hazardous waste would essentially end CCR beneficial reuse. 

In a letter to the EPA administrator dated December 22nd, 2009, ASTM International stated, we strongly 

encourage the EPA to consider the negative implications of classifying fly ash as a hazardous waste under 

Subtitle C of Resource Conservation Recovery Act. Designation of fly ash as a hazardous waste will 

require the ASTM standard for use of fly ash in concrete be revised to reflect this classification. 

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 for legal exposure, product 

liability, and public perception. This will likely result in little or no fly ash being used for beneficial use in 

concrete or other applications that supports the sustainability objectives, end of quote. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0019-2

Organization1:Ameren Corporation
555

Commenter1:Edward Kahl

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

However, since the issuance of the EPA's proposed rule that seeks to regulate CCRs, I have fielded a 

number of phone calls from current users questioning the ability to use CCPs. I witnessed anxious citizens 

challenging the permitting of a state-of-the-art landfill for CCPs. And I attended a Corps of Engineers 

public meeting where citizens groups refuted the Corps of Engineers' ability to use encapsulated CCPs to 

strengthen a levee system. The stigma created by the EPA proposed rule and threat of a hazardous 

classification has already created serious negative business implications. This stigma is real for me.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0020-2

Organization1:

Commenter1:Tom Zorenda

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

And we heard about the Bevill amendment. And while that's still going to be intact, it doesn't do enough. 

And you know, we're a litigious society. We've got a lot of lawyers out there. And you know what's going 

to happen if we try to use in beneficial uses a non-haz material that's being called hazardous by our 

government, we're going to -- we're going to see a lot of people just back away. The producers of this 

material are going to say, you know what, it's just going to be a lot cheaper if we don't let the recycling 

happen. We don't want that material to get back into the system. So we have to be very careful in creating 

this stigma.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0026-1

Organization1:Precast Concrete Manufacturers Association of Texas

Commenter1:Chris Lechner

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.1.1 9.5.2

Comment Excerpt Text:

The precast, prestressed concrete industry relies on high early strength concrete. Fly ash actually slows 

our turnaround time. But it's added benefits currently outweigh the time factor; important benefits such as 

reduced water usage, improved concrete resistance to chemical attack, improved concrete strength and 

durability. Fly ash works well with Texas aggregates, rock, stone, and sand, and increases the use of 

locally available materials. The Texas Department of Transportation mandates its use in precast and 

prestressed concrete products, as well as other concrete applications because of its contribution to 

durability.

Currently, there is no word if they plan to change their specification to exclude fly ash if the classification 

changes. Either way, that decision could leave precast manufacturers in a precarious position if it is 

relabeled. Relabeling disposal is really an all-or-nothing proposal. The burden of a hazardous label by 

association penalizes sound reuse practices and puts up roadblocks to future innovation. 

In managing the resource, we have to continue to take advantage of all available options for responsible 

disposal and use. Engineers and architects rule my world. From concept through construction, they are 

part of everything we make. Just the fact that this is being discussed has raised -- raised concerns of 

availability, liability, and cost. All of a sudden, an accepted and proven ingredient is simply relabeled. 
556

A hazardous label will twist supply and demand. The label will compel producers to reconsider their sales 

of ash products, and costs will go up, supplies will dry up. Engineers and manufacturers will lose its 

benefits and be made to switch to more expensive chemical additives. 

Maybe more oversight is warranted, but a hazard tag is not a solution. It is an impediment. This is a 

product that is needed and has a manageable life cycle. Disposal issues can be dealt with in a responsible 

manner that relies on science and not fear. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0032-1

Organization1:Boral Material Technologies

Commenter1:Gary Shelton

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1 10.5.1.6

Comment Excerpt Text:

Our company's principle business is coal combustion products marketing and management. We have been 

involved with these activities for over 50 years. And certainly, we are supportive of the effort to protect 

the environment and human health. There's no doubt about that. We believe that this goal can be 

accomplished by regulating coal combustion products under a Subtitle D classification and that a Subtitle 

C classification will be harmful to the continued and ongoing use of these products. 

The event at Kingston and any other events are disposal and material management issues. They were not 

caused by the material itself and certainly not a hazardous material problem. 

Currently, one of the largest and most successful uses of coal combustion products is the use of fly ash in 

the production of concrete, which you've heard here today. This type of use has a proven 50-year record 

of successful use that is safe and productive. Increased use of all of these types of recovered resources in 

safe and appropriate markets is also occurring in other segments such as the uses as a mineral filler. 

These developments are accomplished in a judicious manner after extensive evaluations of material 

performance, safety and environmental impacts, and the economics of the intended use. Any type of 

hazardous classification will negatively impact usage. 

The -- the reality is the stigma issue is real. I have firsthand experience with concrete producers, the 

engineering community, and various agencies who report that a hazardous classification will at a very 

minimum cause these users -- these CCP users to reevaluate their practices. A Subtitle C regulation will 

only harm the beneficial use of CCPs. The overall effect will be -- will result in increase of virgin mine 

raw materials. CCPs have a proven -- have proven to be a valuable recovered resource that has been long 

recognized by the EPA for its benefits to the environment and society for many years. 

Coal combustion products should be handled, managed, and stored according to sound engineering 

procedures. This should be accomplished at the plant sites where these materials are produced in the 

correct manner. This goal can be -- can be accomplished without the risk of decreasing the ongoing and 

growing application of these products in a constructive method. 

I encourage the people -- the EPA to use sound scientific evidence as it makes the final determination on 

classification. Such evidence does strongly suggest that the correct material classification is Subtitle D. 

We oppose the regulation of CCPs as a Subtitle -- Subtitle C or any hybrid classification

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0041-2

Organization1:Texas Concrete Pipe Association

Commenter1:Bob Folser
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Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

We believe that regulating fly ash as a hazardous waste would have significant negative consequences 

that could potentially undo years of advancement in concrete durability. We believe that the fly ash 

market would virtually stop existing if the EPA designates fly ash as a hazardous waste, even if there is in 

place a beneficial reuse exemption. 

Perceptions of fly ash will be negatively impacted. When material is deemed hazardous, there is no worse 

designation in the public's mind. Granting an exemption will not remove the emotional and mental stigma 

attached to the material.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0065-1

Organization1:Texas Coal Ash Utilization Group

Commenter1:Mike Silvertooth

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

In 1990, the Texas Coal Ash Utilization Group was formed by marketers, academia, and local Texas 

utilities to promote the beneficial reuse of coal combustion products. Through our outreach with the 

TCEQ, a guidance letter was issued in 1995 that it recognized CCPs as the materials and not considered a 

solid waste. This letter was instituted as an agency rule in '01 and has been a key to the overwhelming 

success of CCP utilization year after year. 

Prior to this rule, the use of CCPs in Texas was 20 to 30 percent of annual production. This low 

utilization rate was contributed to the reporting guidelines that were in place. But more importantly, there 

was a stigma in the market because CCPs were treated as a solid waste and not a product. The current 

EPA Option 1 proposal for managing CCPs under the RCRA C program would set our industry back in 

Texas as it was prior to the TCEQ recognizing CCPs as a product and not a solid waste. Since the new 

guidelines have been in place by the TCEQ, Texas has recycled more CCPs than any other state. And now 

the utilization is 60 to 70 percent of utilization -- of production annually. 

From prior public statements, EPA clearly does not believe that a stigma exists or potentially would come 

into play if the RCRA C proposed option becomes regulation. However, in '05, the EPA has a report, 

Review of Texas Regulation, Standards, and Practices to the Use of CCPs, states this stigma effect has a 

potential threat that could impact future CCP utilization in Texas. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0069-4

Organization1:PMI Ash Technologies

Commenter1:Kyle Crake

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

The CCR recycling industry has noted to the EPA that the Subtitle C classification will produce a stigma 

that will negatively impact the nation's best recycling story. The industry has supplied specific 

advertisements, bidding packages, delayed or deferred projects showing that the stigma does exist. EPA 
558

continues to ask for evidence, while all the same ignoring the evidence given. 

PMI has seen the impact of the stigma. PMI has actively pursued several potential beneficiation projects. 

We have heard from prospective customers that they will not consider a project until a final rule is out 

and it is non-hazardous, due to the potential tort liability that could be associated with the sale of fly ash 

under Subtitle C. We have also been talking with companies about raising capital for projects. While the 

companies like our CCP recycling business, they are not willing to invest with the exposure to a Subtitle 

C classification. 

EPA's own scenarios that incorporate health, environmental, and commercial factors show that the 

downside in both recycled volume and economic value is significantly greater than the upside. The upside 

scenario is an 11 percent gain in sales for $84 billion in value. The stigma scenario is an 18 percent loss in 

sales for a $233 billion decrease in economic value. 

In conclusion, the cost of Subtitle C implementation, plus the associated loss of recycling, is too great a 

tradeoff for EPA enforcement authority, especially when it can be obtained on a legislative basis.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0075-1

Organization1:

Commenter1:Jimmy Lambert

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

It is my understanding that the EPA's proposed designation of CCPs as a special waste scenario to 

promote reuse is ambiguous, when, in fact, the Subtitle C approach, by definition, will be considered 

hazardous. Many companies are fearful of economic losses posed by CCP alternatives, future liabilities 

and competitive disadvantages generated from fear tactics. 

The aforementioned stigma will kill beneficial use and set back the environmental progress made over the 

last 20 years, resulting in a loss of recycling industry that consumes 50 million tons annually and provides 

offsets to CO2 on a one-for-one basis. 

With the depletion of virgin materials, we need to take full advantage of the benefits provided by 

recycling.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0084-1

Organization1:Hallett Materials

Commenter1:Frank Johnson

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

EPA's rule and proposal highlights increase the beneficial use of coal ash, not including mine filling, from 

23 percent in 1995 to 37 percent in 2008. Environmental benefit to this increase is great. Ash should not 

be thrown away. Instead, it should be recycled, being used in proven safe products that we (inaudible). 

Based on EPA's old numbers, 13.7 million tons of coal ash were recycled and used in place of portland 

cement in 2007. This energy savings is equal to the energy used in 676,000 homes. It also reduced 

greenhouse gas missions equal to taking 2.3 million cars off the road. 

Recycling coal ash is something TACA members are proud of, but we're afraid that all the beneficial 
559

reuse will come to an end if EPA finalizes Subtitle C regulatory option. Calling coal ash a special waste 

does not eliminate liability, the stigma. In the marketplace there are other market concerns. 

The EPA discussing the hazardous waste regulations and holding these hearings makes it hard to recycle 

coal ash and use it in construction material products. The stigma is real. Coal-fired power plants have 

already said they will be very unlikely to buy coal ash from our members out of fear of liability. Even if 

our members can obtain coal ash, they will be inclined to look for other products. 

We do not want to deal with the potential liability of operational requirements for handling coal ash 

classified as a hazardous waste when not beneficially used. Also, buyers of our products that contain coal 

ash will look for other options because consumers do not want to buy materials stigmatized as hazardous 

waste. 

Our members provide a valuable resource found in countless products which will literally serve as the 

foundation to allow our economy to recover. A hazardous waste regulation and accompanying stigma will 

destroy the beneficial sector of our industry. This will increase costs while we are all struggling in the 

economy and also several member companies already operating a small (inaudible). 

To protect the beneficial use, protect our environment, and protect our members, on behalf of the Texas 

Aggregates and Concrete Association, I ask that you not regulate coal ash as a hazardous waste, but if you 

determine that more regulation is even necessary, instead regulate it as a non-hazardous waste

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0086-2

Organization1:Entergy Corporation

Commenter1:Mark Bowles

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Entergy's three coal plants located in Arkansas and Louisiana have historically reused over 75 percent of 

their CCRs on an annual basis. We strongly believe that any regulation that adds a hazardous waste 

designation for this material, such as the Subtitle C option in the current proposal, would be 

counterproductive and present a sigma on CCR beneficial reuse, thereby seriously undermining future 

recycling efforts.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0097-3

Organization1:NRG Energy

Commenter1:Jeffrey Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Most of the coal combustion byproducts produced at our Texas plants are beneficially used, primarily in 

the manufacture of cement products. EPA has publicly stated that a hazardous program would result in an 

increase in recycling. We believe that a federal program that labeled a product that had been safely used 

for decades as hazardous will have the opposite effect and will severely impact our recycling efforts 

because of the stigma associated with a hazardous designation. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0112-1

Organization1:Ameren Energy Fuels and Services
560

Commenter1:Charles Henderson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Over the past ten years, Ameren has developed a very robust CCP management and beneficial use 

program. Our CCP beneficial use program has been impacted recently by not only the poor state of the 

economy but also by the issuance of the EPA's proposed rule seeking to regulate CCRs. 

We have intentionally delayed a multi-year beneficial use project due to the regulatory uncertainty created 

by the EPA's proposed rule potentially labeling CCRs as a hazardous waste. This project would have 

created much-needed construction jobs in Missouri this year, right now, provide long-term benefits to the 

local economy during the construction phase and long-term benefits to the project development due to the 

cost effectiveness of utilizing CCP materials.

Sadly, none of these benefits are being realized, nor may ever be realized, as the result of CCRs being 

labeled potentially as hazardous materials, and the liability concerns already created as a result of the 

EPA's proposed rule. There is stigma, and the stigma is real and already present. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0001-2

Organization1:National Ready Mixed Concrete Association

Commenter1:Dan Huffman

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

After examining the EPA's proposed rule, we've determined a RCRA Subtitle C designation for CCRs 

bound for disposal, while remaining -- while retaining exemptions for beneficial use, such will lead to the 

following unintended consequences for the concrete industry: Number 1, an increase in production costs 

and the overall cost of construction due to increased regulations for handling fly ash and concrete during 

production and construction; number 2, an increase in potential liability for concrete producers. Currently, 

the status of small amounts of fly ash and waste streams from concrete production and construction is 

unclear. 

So any proposed rule should explicitly state that such waste streams from concrete production are exempt 

and not subject to such regulations. There will also be litigation which will target existing structures built 

with fly ash concrete in the past. 

Potentially stricter state laws impacting beneficial use will also result. For example, a state rule in the 

state of Maryland says that any product containing fly ash must be disposed of in a special facility 

authorized to accept fly ash. And many other states will establish similar laws that will further limit the 

beneficial use of fly ash. 

Number 4, the beneficial elimination of all fly ash concrete. A hazardous waste stigma and fear of 

liability will result from the negative ruling that will drive specifying engineers, architects, and end users 

to disallow the use of fly ash concrete. For example, Los Angeles Unified School District has banned the 

use of fly ash until the EPA has finalized its decision

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0003-1

Organization1:Citizens for Recycling First
561

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

In announcing the agency's proposed coal ash disposal rule on May 4, EPA administrator Lisa Jackson 

said, "The time has come for common-sense national protections to ensure the safe disposal of coal ash." 

Citizens for Recycling First agrees with the administrator. 

Common sense tells us that utilities will be reluctant to allow a material classified as hazardous waste on 

their own property to be distributed for recycling at literally thousands of locations all around the 

community. Common sense tells us that architects and engineers who are sworn to put human health and 

safety first will be reluctant to require the use of material that is classified as hazardous waste in another 

location. 

Common sense tells us that users of coal ash will be reluctant to take on the potential liabilities and 

additional operational requirements that may come with using material that is classified as hazardous 

waste in another location. 

And finally, common sense tells that everyday citizens will be greatly alarmed if they find out that a 

building material used in their homes, school, office, and roadways is classified as a hazardous waste in 

another location. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0016-1

Organization1:Nebraska Ash Company

Commenter1:Tex Leber

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 9.2.2.2

Comment Excerpt Text:

We are in support of regulating under Subtitle D but are opposed, of course, to and have great concern if 

it were to be regulated under Subtitle C. 

A hazardous or special waste when CCRs are disposed would cause great stigma reducing or eliminating 

the beneficial uses of our products, and we have a number of customers who have been asking questions 

about it; questions such as what happens if we have a spill of materials -- we have a load of ash coming to 

the plant and we have a spill? Are we then going to have to handle that as a hazardous material for cleanup, and what things will we have to go through in order to get that cleaned up? 

Another is, Why would I want my employees handling a material that's considered hazardous if it's 

disposed of. And another question that's come up, If concrete containing fly ash is removed, does it 

require special handling and must it be taken to a hazardous landfill? 

And another question has been -- when the concrete is first put in place and they're sawing control joints 

in the concrete, what about the dust that's created from that? Are we going to have a special requirement 

because of the dust that's contained in that? 

And due to these concerns we've had a number of them that are saying if -- if it is determined that it's a 

hazardous or a special waste material, we will more than likely go ahead with using straight cement and 

not use the fly ash, which, of course, is going to be a huge problem for our company. And it's -- their 

reasoning is because of the additional liability. 

And one of the utilities that we market for that we actually -- it's about 50 percent of our product, they're 

saying if it's regulated under Subtitle C that they're not going allow the product to even go off-site; that 

due to the liabilities, they wouldn't want it scattered over, you know, a number of projects.

So that's -- that would leave our company more than likely out of business, and even though we are a 

small company, it would eliminate a number of jobs.
562

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0022-3

Organization1:Intermountain Power Service Corporation

Commenter1:Jon Finlinson

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

We firmly believe that a Subtitle C designation will significantly reduce or halt the sale of coal 

combustion byproducts as alternatives to natural resources. Having the stigma of hazardous will catch the 

attention of toxic tort attorneys. In this litigious society, any playground, school, or other arena where 

children are present will be blamed for any ill that may arise if that facility was built with products 

containing CCR. Liability of this magnitude can far outweigh any benefit of reuse.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0032-1

Organization1:Colorado Ready Mixed Concrete Association

Commenter1:Bernie Cawley

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 9.5.2

Comment Excerpt Text:

The specifying community, primarily architects and engineers, are the ones who typically make the 

decision on what building materials are used. With concrete it's quite common for these groups to specify 

the mix design. 

Since the review of CCRs was announced, our office has been deluged with calls from different architects 

and engineers throughout the state asking, Is it safe to use a CCR on their projects. 

Despite our positive approach towards it, this whole group of specifiers is not doing it because they're 

afraid of the stigma of it being a hazardous material. They're also afraid of future liability. When you add 

the additional cost of trucking, handling, and storage of a hazardous material, very few are going to 

specify a CCR due to potential for the increased cost and primarily that future liability. 

The second topic is something called alkali silica reaction or ASR. ASR is caused by cement interacting 

with the silica, and many of the aggregates that are found in the state of Colorado -- almost all the 

aggregates here have it. 

The result is a rapid deterioration of concrete. So you use CCRs as a mitigating factor to stop this 

reaction. They're probably the most prevalent and the best means to mitigate ASR. 

So if it's labeled as a hazardous or special material, it's doubtful the specifiers are going to use it. This is 

going to result in a number of different aggregates, another product for mitigation, or a low alkali cement 

or all three having to be shipped into Colorado from another state. 

This is going to result in a skyrocketing of costs of concrete and also the quality of concrete. So in this 

economy it's probably going to result in a number of different projects not being built; schools, roads, 

houses, et cetera. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0048-2

Organization1:American Coal Ash Association

Commenter1:Thomas Adams
563

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

Virtually all of the CCPs recycled into beneficial use face competition from alterative products which do 

not bear the stigma of being regarded as a hazardous waste. The same delivery truck that happens to 

bypass a concrete plant and unload in a landfill is hauling a material with identical chemical 

characteristics that make it hazardous in the landfill but just fine in a batch of concrete. 

Marketers of the competitive products are already taking advantage of this scenario to gain market share 

at the expense of coal combustion products today. The basic message is the same. My products do not 

contain a hazardous waste. Do yours? 

EPA is continued -- says continued beneficial use will not suffer under the Subtitle C scheme. After all, 

the agency has listed 13 other wastes under Subtitle C and the listing has not discouraged continued 

recycling of those products. 

In order to test this statement, I checked around my home and asked colleagues to do the same. It seems 

that we do not keep black liquor pulping furnaces, spent sulfuric acid, coke oven byproducts, dust from 

electric arc furnaces, or any of the other listed wastes in our garages or basement. 

However, coal combustion products can be found on the roofs and in the wallboard of our homes, in the 

concrete foundations and slabs of our homes, and in the carpet backing we walk on. Clearly homeowners 

can reach out and touch products containing CCPs unlike any of the listed wastes that EPA cites as 

examples of consumer behavior. Rational consumers will turn away from anything containing a 

hazardous waste. 

The stigma of a hazardous waste rule of any kind is real and operative in markets today before we even 

have a final rule. 

We'd like to thank you today for the opportunity and hope that EPA will make its decision based on 

science, not political science or science fiction

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0050-4

Organization1:Xcel Energy

Commenter1:Terry Coss

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

My fourth comment concerns the negative impact of the RCRA C rule on utilization. We have several 

power plants where almost all of the ash is beneficially used. Under RCRA C rule, we could see an 

immediate drop in market demand for this ash due to increased liability concerns and the stigma of a 

hazardous waste listing. 

Indeed, we believe concern over a future RCRA C rule has already caused fly ash utilization at one plant 

to drop from a planned 100 percent to zero. This ash now goes to a commercial landfill. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0059-3

Organization1:Kansas City Power & Light

Commenter1:Fred Gustin

Commenter Type: Electric Utility Company

Classification: Substantive
564

Comment Excerpt Text:

Regarding beneficial use of CCPs, there are two points that I'd like to make. First, the hazardous waste 

stigma is very real, and it has already arrived. Lesley Stahl on the 60 Minutes segment "Is Coal Ash

Safe?" asked EPA administrator Lisa Jackson if she thought that fly ash in countertops and in carpeting 

used in elementary schools was safe, and she asked the question in a tone that indicated that she herself 

did not feel it was safe. Yet the safety of CCPs in products is an issue that has been addressed over and 

over.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0073-1

Organization1:Novinda Corp.

Commenter1:Bill Byers

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Because EPA can meet the goals using either option, it should not take the additional risk that a hazardous 

waste designation will create a stigma that will significantly reduce the amount of ash designated for 

beneficial use. 

Asking the market to consider a material hazardous waste unless it is intended for beneficial use is asking 

the CCR supply chain to accept a striking contradiction. How will a contractor react to the proposal that 

fly ash is a hazardous waste unless you use it to build a school? 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0076-2

Organization1:Fiore and Sons

Commenter1:Mike Fiore

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

As a contractor, property owner, and citizen, I'm opposed to ruling CCRs as a hazardous waste. The 

proper utilization of CCRs is proven to reduce environment impact rather than contribute to 

environmental damage. 

Blanket regulation of all CCRs as hazardous waste would drastically reduce if not eliminate valid, 

responsible beneficial recycling of these materials. Furthermore, sampling and testing of the materials in 

this example has perpetually shown that the use of CCRs as a structural fill introduces no hazard greater 

than that of background soils. 

The evidence in this case and likely in any others does not support the regulation of CCRs as a hazardous 

waste. A ruling of this nature will likely cause business owners to landfill millions of tons of construction 

material and increase the need for natural resources. 

This new hazardous waste stigma has caused an unnecessary stall in research of new beneficial uses and a 

reluctance to pursue other construction materials recycling by property owners. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0106-2

Organization1:Navajo FlexCrete
565

Commenter1:Jonathan Robertson

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

The proposed regulations involving labeling fly ash as a hazardous waste with special handling 

requirements will certainly place a tremendous barrier on our ability to successfully market our product. 

Although the Environmental Protection Agency supports the legitimate beneficial use of coal combustion 

residuals, our product, along with the other environmental sound beneficial-use products, will clearly 

suffer from the stigma attached to labeling fly ash as a hazardous waste. 

Since the announcement of the EPA proposed regulations, we already have seen an impact of the 

proposed regulations with potential clients such as architects, engineers, and homeowners who do not 

want to specify our product on their projects for fear of the liability associated with the hazardous waste 

label. 

We urge the EPA's panel oversight -- overseeing the public hearings for coal ash to greatly consider the 

impacts to the small businesses and economies that have been created by the beneficial-use categories of 

the fly ash. Labeling fly ash as hazardous waste will certainly close the doors of this manufacturer of 

green building products. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0010-1

Organization1:Sphere One

Commenter1:Ryan Brownhill

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

I have attached letters from several of our customers expressing their concerns in laying out their plans to 

evaluate other materials. I've talked to numerous other customers saying the same thing. Every company 

that is involved in recycling these byproducts has said that a Subtitle C ruling would be extremely 

detrimental to continued recycling. Why would we lie about that? If there's no potential impact on our 

business, we wouldn't spend the time and money to be here. We're here because we are very concerned 

about the huge negative economic and environmental impact of a Subtitle C ruling. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0011-1

Organization1:Santee Cooper

Commenter1:Tom Edens

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

The Subtitle C option represents the most extreme, costly and burdensome option without proportional 

environmental benefit. Regulating CCRs under RCRA hazardous waste controls would have an impact on 

beneficial use. FGD gypsum, which is predominantly calcium sulfate, can be safely used in production of 

drywall and indust -- and in agricultural soil amendment. Gypsum does not meet the criteria set forth 
566

under RCRA as being a hazardous waste. Why should an environmental friendly recycling program be 

unfairly stigmatized? Santee Cooper also successfully recycles coal ash, both fly ash and bottom ash to 

minimize the use of ash ponds and landfills as much as possible. When ash is encapsulated in concrete, it 

is one of the most responsible reuse programs. 

EPA awarded Santee Cooper under the EPA's Coal Combustion Partnership Enhanced Utilization Award 

in 2006. Despite of the rules claiming to the contrary, the labeling gypsum and other CCRs as a hazardous 

waste will impact sales. Negative results have already been seen as lightweight aggregate market --

market is already touting their prod -- product as non-hazardous. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0018-2

Organization1:

Commenter1:Rafic Minkara

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

In my review of the regulatory impact analysis, I noticed that EPA has not taken the impact of stigma too 

seriously. EPA's own analysis show the impact of the stigma at 51% reduction in beneficial use in 2012. 

This is the wrong time to wipe out half of an industry as we try to recover from this near depression.

Regaining beneficial use volume is not as simple as driving the ash delivery truck an extra hundred miles 

to the next town. EPA's logic on increased beneficial use under RCRA C is archaic. It is obvious that 

industry expert was not involved on this part of the analysis. 

The analogy to waste oil is also irrelevant. When waste oil is burnt, the stigma goes up in smoke. In the 

case of fly ash, the stigma stays in that concrete driveway and home carpeting. There's also the real risk of 

consumer product liability lawsuits that would discourage the use of CCPs. 

RCRA C will destroy an indus -- an industry that should be applauded by EPA for making a real 

difference in reducing the amount of CCPs going to landfills and proving durability of infrastructures and 

reducing the amount of manufactured Portland cement with its related environmental impact. RCRA C 

makes no scientific or engineering sense.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0037-1

Organization1:

Commenter1:Gary England

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

The unified school district of Los Angeles has already removed coal ash from many of their projects. A 

major block manufacturer is advertising their block as 100% free of coal ash. The stigma is real, and a 

hazardous classification will stop most of the beneficial use of coal ash. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0039-3

Organization1:SEFA Group

Commenter1:Burt Nunn
567

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

Most of the concrete produced will not have fly ash as a constituent if the material is designated as 

hazardous for disposal, even if the EPA says that beneficial use is exempt from that designation. Concrete 

producers say that the potential for lawsuits and negative press is not worth the risk of using fly ash in 

their products. Their legal counsel and insurance company have already advised against using fly ash 

because of the negative stigma and potential for litigation.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0045-2

Organization1:Charah

Commenter1:Danny Gray

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

The mere association with hazardous terminology in consumer products -- products is problematic and 

invalidates this base assumption. We have already seen the negative impacts of the association of a C 

option. Currently, there are many companies in the industry that are removing coal ash from their product 

manufacturing process just because of the public debate and the potential ruling

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0060-1

Organization1:Trans Ash

Commenter1:Bruce Kazich

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

These regulations should be tougher but should not stigmatize the possible beneficial use of CCPs. And 

yes, the stigma is real. 

Trans Ash was a charter member of the EPA's C2P2 program which promoted environmental stewardship 

and beneficial use of CCPs. Isn't the suspension of that program the ultimate proof of stigma? The C2P2 

program suspension certainly sends conflict -- conflicting signals from the agency, especially when the 

environmental benefit from the utilization of CCPs is well documented and acknowledged by the EPA. 

In their memo of May 4th, 2010, the EPA clearly states, "Environmentally sound beneficial reuses of ash 

conserves resources, reduces greenhouse gas emissions, lessens the need for waste disposal units, and 

provides significant domestic economic benefits." 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0071-1

Organization1:Headwaters Resources

Commenter1:Mike Adams

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:
568

My premise for my testimony is that was EPA's assertion that a hazardous designation will increase 

CCP's utilization is flawed, and that the stigma of a hazardous-waste designation is real. The listing of 

CCPs as a hazardous material for disposal will effectively kill the most successful recycling program in 

the U.S., increase greenhouse-gas production by millions of tons of CO2, and require an additional 50-

million cubic yards of landfill space annually. 

The following is an example of that stigma that is now taking place even before any rule has been issued. 

I have here a price sheet from a concrete block producer that is affiliated with the nation's largest concrete 

block producer. This price sheet was issued within the last couple of months. 

It includes their standard pricing and the following warrant in bold print. Blank company -- I will leave 

the nim -- them nameless at this time -- warrants all concrete masonry units to be free of any coal ash. 

Coal ash is currently under investigation by the EPA to be classified as hazardous waste. 

Why are they making this warranty? It can be for one reason and one reason only. They are concerned 

with the possible liability of coal ash even though there is no -- and I repeat, no scientific evidence that 

the use of coal ash in the production of concrete products is harmful to people or animals or the 

environment. Their concern is the future liability associated with unscrupulous attorneys and possible 

class-action suits. 

This is an example of how sti -- significant stigma will be. In the EPA's positive economic justification 

for a hazardous designation of coal ash, which is required for any such ruling, they have assumed that 

beneficial reuse will -- will significantly increase due to the hazardous designation. 

Without this assumption, the hazardous designation is a huge economic loss to the electric con --

consumers of the country. Stigma will cause this. 

This and other examples of stigma prove the EPA assumption is wrong, and a hazard designation will not 

increase any coal ash sales. It will effectively kill very successful and environmentally-positive recycling 

program. 

The true regulatory options before us for comment today, the Subtitle C hazardous approach and the 

Subtitle D nonhazardous approach both propose new landfill engineering standards that are essentially the 

same. Landfills won't be any stronger or better under Subtitle C, but coal recyclers will be saddled with a 

hazardous-waste stigma that will make continued recycling of this re -- resource difficult or impossible

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0073-1

Organization1:Full Circle Solutions

Commenter1:Bob Waldrop

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

My comments today concern the issue of stigma. The stigma associated with the regulation of CCPs as 

hazardous waste is real and here with us today. 

First, our clients that produce masonry block have stated that they will no longer use bottom ash if it 

becomes labeled as hazardous. They are already seeing competitors advertise that they do not use 

hazardous materials in their block. 

Our clients are concerned that any lawsuit will turn into a publical -- public spectacle. The mere mention 

of "hazardous materials" will force them to defend using what has been a safe and effective material for 

years. No one can possibly think that attorneys will not attack block manufacturers that use what has been 

labeled "hazardous." 

Second, we have lost two major construction projects due to a hazardous label. The first was a 

development in eastern Virginia that would have enhanced property values and the tax base of a small 

rural county. County officials stated that they liked the project and want to approve without the use of 
569

CCPs; however, if CCPs were used, they would deny approval because they did not want to get involved 

with a hazardous project. 

The second project, an industrial park, also in eastern Virginia, would have provided land ready for an 

industry to build upon, even though we proved the environmental safety of a properly- constructed 

geotechnical fill, the owners backed away because, in their words, EPA thinks this may be hazardous. 

More recently, standard ways of conducting any business have changed for the CCP industry. This is the 

result of the negative stigma from EPA's proposal to regulate CCPs as a hazardous waste. 

One of our business loans was up for renewal, and the loan was collateralized with the industrial and 

commercial properties developed with CCPs. As part of the refinance, the bank ordered Phase I 

Environmental Assessments. These properties have had several Phase I assessments performed in the 

past. They have always been clean. 

However, this time, due to the presence of CCPs, the environmental consultant directed the bank to have a 

Phase II study done. When challenged with the facts, including years of groundwater and surface water 

monitoring data which proved these sites are clean, the con -- consultant could only say that since EPA is 

considering these -- regulating the CCPs as hazardous, then it must be bad. 

The bank has decided they will not renew the loan. If they call that loan, good people are going to lose 

their jobs.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0074-2

Organization1:Full Circle Solutions

Commenter1:Tyler Farrar

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

The second issue is stigma. I'm a fifth-generation farmer. We spend our lifetime being stewards of the 

land, typically living where we farm. Farmers would not take the risk of damaging their livelihood by 

applying materials to the land that is designated as a hazardous substance. Our farms are passed down 

through the generations. And the EP -- EPA proposed Subtitle C or D labeled a special waste would 

damage the productive capacity or value of the land for future generations. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0129-2

Organization1:PowerSouth Energy Cooperative

Commenter1:Keith Stephens

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

PowerSouth disagrees with the EPA's supposition that regulation under subtitle C will spur additional 

beneficial uses of CCR and, in fact, that regulation would exactly have the opposite effect. By dissuading 

CCR customers from using this so-called hazardous material, utilities like us who are, even now, 

directing CCR to beneficial uses would be forced to begin landfilling all that material

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0146-1

Organization1:
570

Commenter1:Ben Franklin

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

To be frank, I, too, am worried about the tons of ash stored on these plant sites, but I am also worried 

greatly about the EPA ruling in favor of Subtitle C. Why? Because if the EPA rules in favor of Subtitle C, 

the ruling will inadvertently cause more ash to be stored on site. The reason is simple. The passing of 

Subtitle C will create liability and stigma for the industry; it creates liability for the power plant that we 

contract with to market these materials; and it creates liability for companies such as mine when we sell 

the materials to the end-user; Ready Mix concrete, shingle, tile companies, et cetera. 

I've personally spoken with a number of these companies and they all tell me they will not continue to use 

these CCRs in production of their products if we go with Subtitle C. Further, I've been told by a large 

majority of the power companies that they will not allow companies such as mine to market the ash. So 

that in and of itself creates more and larger ponds of CCRs in the future, which is counterintuitive to what 

both my industry, the EPA, and the citizens of this country are trying to accomplish.

Let's be clear, even though we all love wind, solar and hydroelectricity, coal-fired power -- power plants 

are not going away for another 20 years in my opinion, which means that there will be CCRs left over. 

We do not have the land to bury it all. And when faced with liability, the EPA cannot make the building 

industry use the CCRs, and the EPA cannot make the power companies sell these CCRs. 

For proof of stigma, I have attached a copy of an invoice from a company that produces concrete block 

and is warranting their block to be free of coal ash, as coal ash is currently under investigation by the EPA 

to be classified as a hazardous waste, as they've placed on their invoice. And if that's not stigma, I don't 

know what is. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0201-1

Organization1:American Coal Ash Association

Commenter1:Mark Bryant

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

The netagi -- negative stigma created by EPA's proposal is growing. The regulatory effect appears 

weighted towards placing -- excuse me -- a hazardous special waste on a nonhazardous material, and has 

resulted in uncertainty, misinformation, and anxiety in an otherwise normal commodity market. The 

damage to CCR markets is real, and the people that use, manage, and trade them are being harmed.

Additional examples of the negative are available today that EPA needs to be aware of. EPA's proposal is 

-- hurts hard-working and honest, small businessmen and women and their employees.

All this harm and suffering because EPA wants federal jurisdiction for a nonhazardous material, 

nonhazardous by any test or criteria. A federal or a state-led RCRA Subtitle D program will be more than 

adequate for everyone's protection and safety.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0201-2

Organization1:American Coal Ash Association
571

Commenter1:Mark Bryant

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

At previous meetings, EPA has heard test -- testimony from competitors of some of these small recycling 

businesses, most recently blasting grit, in favor of a Subtitle C determination for what appears the sole 

purpose of gaining a business advantage and a financial gain. Using the negative stigma, the competing 

market knows what it means. We are now learning of incidents where small businesses are having 

operating loans denied because collateral property improved by CCRs that secured the loans in the past 

are failing inspection, and falling victim to misinformation and ambiguity. The stigma is real. Companies

and jobs are being lost.

We are in possession of public and private construction project documents that specifically state fly ash 

will not be used in ready mix anywhere on the site. The stigma is real and growing.

We have just received advertising materials for concrete products manufacturers that warrant that all of 

their products to be free of coal ash because it is currently under investigation by U.S. EPA as a possible 

hazardous waste. The stigma EPA created is real.

Finally, we have asked EPA to consider the unique contracts and language used in this industry. We have 

shared this language with EPA, and asked EPA to consider the implosion and beneficial use in recycling 

that will occur when cancellation or forced majeure clauses kick in because EPA chosen to list CCRs as a 

hazardous waste. This will be a huge hit to the recycling industry that EPA has supported for many years. 

So far, EPA has chosen to ignore this impending situation.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0001-1

Organization1:American Coal Ash Association

Commenter1:Thomas Adams

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

The EPA has emphatically expressed its support for beneficial use of coal combustion products as part of 

the rulemaking for disposal of these materials, and the rational analysis of the disposal supports this EPA 

position. The best way to minimize disposal problems is to recycle these materials in ways that are 

environmentally safe, technically appropriate, commercially competitive, and supportive of a more 

sustainable society. The American Coal Ash Association agrees and stands ready to work with the agency 

to increase the safe beneficial use of CCPs. 

However, the EPA suggests that beneficial use will increase under a Subsi -- Subtitle C hazardous waste 

rule. While industry has warned of the effects of the stigma of the hazardous waste label for disposed 

CCP, the EPA says markets will ignore that stigma. The EPA also suggests that generators will be 

motivated to invest more than they currently do when recycling CCPs rather than sending the material to 

disposal. Under this scenario, the ACAA and its members should be ecstatic over a Subtitle C option and 

providing full support to EPA's desire to use Subtitle C. Sadly, the reality tells us that the agency's 

predictive talents are lacking in this matter. 

CCPs com -- compete with other materials in virtually all beneficial use markets. Users and consumers 

have other choices. And competitive material suppliers are already begun to use the hazardous waste 

stigma as a marketing tool. 
572

Some owners have backed away from allowing CCP use as the cloud of EPA rulemaking casts doubt on 

the safety of these materials. Since they bear the brunt of potential litigation, owners are taking a "better 

safe than sorry" approach. 

Utilities that are uncertain of it -- their liability exposure have considered how to approach beneficial use 

going forward. Some have attempted to download all liability on the small businesses that manage and 

market CCPs, others have considered retaining cut -- custody of all CCP, sending 100% to disposal. 

So we ask the question today: What if you're wrong about beneficial use under a Subtitle C rule? If you're 

wrong and markets reject continued recycling of CCP and disposal increases dramatically. For example, 

since the year 2000, we'd have almost a half million tons of more CCP disposed of with successful 

beneficial use. 

If you're wrong, greenhouse gas emissions go up, as -- as the use of fly ash in Portland cement, concrete 

mixtures decreases. Since 2000, 120 million tons of avoided GHG emissions have been accomplished by 

the use of fly ash in concrete. 

If -- if you're wrong, jobs are affect, as the beneficial use industry accounts for over 15,000 green jobs. 

If you're wrong, the economy is affected. According to the EPA, the CCP recycling accounts for about 

$25 billion of e -- economic activity a year. And while that may be a rounding error in Washington, it's 

serious money out here

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0007-1

Organization1:Gibbco, Inc.

Commenter1:Bruce Kazich

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

And yes, the stigma is real. Our customers have serious, legal liability concerns. We speak with them on a 

weekly basis and they've clearly stated they will stop the use of boiler slag should CCPs be classified, in 

any way, as a subtitle C waste. In our litigious society, they are simply not willing to take the risk, despite 

having successfully and safely use boiler slag for decades. 

Additionally, I have provided a copy of my written testimony of an Internet advertising by a supplier of 

an alternative material. Their website features videos and links that clearly attack boiler slag and CCPs. 

Many of the links have, frankly, nothing to do with either boiler slag or blasting abrasives. This is truly 

fear-based advertising, attempting to further stigmatize the beneficial use of CCPs.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0010-1

Organization1:

Commenter1:Craig Wallace

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Personally, I'm glad the EPA is out -- looking out for my safety. However, I do have a problem labeling a 

material that reduces our demand for energy intensive cement, reduces greenhouse gases, improves 

concrete infrastructures and reduces concrete consumer costs as a hazardous material. 

The toxicity of coal ash does not meet EPA's defined requirements for hazardous materials. Coal ash is an 
573

industrial waste and it should remain so. 

We've heard today, and we're going to continue to hear, that coal ash is a toxic hazardous material. The 

reason we're hearing this is because coal ash is already stigmatized. Putting emotions aside and looking at 

the facts, the term "toxic hazardous waste" used in conjunction with coal ash is a misnomer. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0021-1

Organization1:E.ON U.S.

Commenter1:John Voyles

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

In addition, Subtitle C regulation would raise potentially insurmountable obstacles to continued beneficial 

reuse of CCRs. Our CCR marketing partners have advised that some of their CCR end- users have placed 

beneficial reuse opportunities on hold pending a final regulatory decision on CCRs. They have advised 

that regulation of CCRs under the Subtitle C hazardous waste program, regardless of whether they are 

characterized as "special waste," would result in a stigma that will cause some end-users to discontinue 

use of CCRs. 

With the regulatory uncertainty of the past few years, our company's beneficial reuse has dropped from 

almost 50% of our CCRs in 2008 to about 32% of our CCRs in 2009. Our own experience indicates that 

Subtitle C regulation will almost certainly result in dramatic reduction in beneficial reuse of CCRs and a 

corresponding increase in land disposal. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0022-1

Organization1:Headwaters Resources (spoke as employee)

Commenter1:David Marshall

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

The EPA has stated they do not believe that a Subtitle C special waste designation will be harmful to 

recycling efforts. I am here to tell you that we have already seen attacks on our successful efforts at 

utilization targeted by our customer -- competitor, even those -- those competitors products test out the 

same as our coal combustion products. Those competitors are using this opportunity as a fear tactic, even 

before the regulations are decided, to try to create a market advantage for themselves. Many of our 

customers know better and they recognize the effort for what it is. But the proof of stigma is already here.

The fact we will hear today from people who cry the danger of fly ask without really knowing what the 

facts are is another dumo -- demonstrable example of stigmas beginning to impact the potential for this 

effective recycling program. It can only get worse. 

Fly ash and bottom ash result from burning coal in power plants. The Clean Air Act efforts over the past 

25 years has significantly changed the amount and type of emissions allowed from these plants and has 

caused the utilization industry to adapt to the changes of products generated. Many older plants have been 

closed, technology to make unusable ash accept -- acceptable have been developed and the market for this 

recycled material has grown significantly. 

Coal ash is no mystery material, it is simply the minerals that were trapped with plant matter when the 

coal deposits were originally formed. It is the prehistoric sands, silts and clays of those times. When 
574

chemical analysis of coal ash and soil from your own back yard are compared, there is great similarity. 

The EPA defines the standards for a hazardous material and in no measure does the fly ash, bottom ash or 

gypsum generated at these plants meet the EPA standards for hazardous. To list them as special under the 

hazardous guidelines of Subtitle C is -- is disingenuous. It would almost require that the EPA change their 

definitions of hazardous, and they have not indicated this is an issue. 

Fear of the unknown is hard at work in this public effort and we should all be cautioned. 

Our industry works across many state lines and a national standard of Subtitle D would be welcomed so 

that each state will have standard design and operating protocol to follow. And Subtitle D can be 

implemented quickly, within six months of final rules. Subtitle D is the standard for household waste 

disposal and fly ash and bottom ash do not contain the wide range of potentially harmful chemicals 

thrown away everyday. 

Let's use some common sense, let's understand the science at work, and let's move forward with a nonhazardous label that will support the largest recycling program in the U.S

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0026-1

Organization1:Headwaters Resources

Commenter1:Gary England

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

Headwaters Resources is the largest manager of post-combustion materials in the country. We currently 

operate in over 100 utility sites across the country. And as the largest manager of coal combustion 

products, we are involved in all aspects of the utilization of this valuable recycled product. 

In 2008 the benefits realized by re -- utilizing fly ash in concrete and other beneficial uses resulted in this 

country saving 159 trillion BTUs of energy, 12 million tons of CO2 production, 32 billion gallons of 

water, and save between 5- and $7 billion. I would hate to see these benefits go away. 

We have already been notified by several customers and state agencies that if the EPA designates fly ash 

as a Subtitle C waste, they will not risk the liability and potential litigation and will cease utilizing fly ash 

in their products and applications. Many have already ceased the use of fly ash until this matter is 

resolved and the future litigation is settled. The stigma is real. 

Why classify fly ash as a Subtitle C waste? Simply move jurisdiction from the states and give it to the 

federal government. Fly ash, in reality, does not qualify as a hazardous waste based upon its toxicity. This 

isn't opinion; this is science based on standardized tests that show the metal levels are well below the 

EPA's own standards established for the listing of a hazardous waste. 

I agree that human health and the environment must be protected. What I don't feel is that category --

categorizing fly ash Subtitle C hazardous waste is the best way to do that. It will take away from the 

benefits of utilizing fly ash and reducing the CO2 produced from cement manufacturing. 

Under both of the EPA proposed approaches, whether it is a Subtitle D or Subtitle C, the landfill 

construction and design standards are essentially the same, with Subtitle D being enacted sooner than the 

Subtitle C approach. If the goal is to protect the environment and human health, does it not make sense to 

enact the safeguard as quickly as possible. The Subtitle C approach is not a stronger option, it simply 

determines who has the regulatory enforcement. 

We have heard in other hearings and press releases that there are those that believe that there is more 

stringent regulation of cost to disposal increase than there would be more emphis -- emphasis on 

beneficial use. Making disposal more expensive will not increase utilization. 

In 2000 utilization of fly ash was approximately 30%; in 2008 that utilization is 44%, almost a 50% 

increase. This was not because of more expensive disposal costs but through the efforts of companies like 
575

ours that to continue develop more and better uses. It was also because in 2000 the EPA made the 

determination that fly ash did not pose a health risk and did not warrant being regulated as a waste. 

It is our position that Subtitle D is the only correct and prudent answer

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0030-2

Organization1:National Ready Mixed Concrete Association

Commenter1:Kerri Leininger

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

Based on the concrete industry's extensive use of reliance on fly ash in concrete and over examining 

EPA's proposed rule, we have determined a RCRA Subtitle C designation for CCRs bound for disposal, 

while retaining exemptions for beneficial use, will lead to the following unintended consequences for the 

concrete industry: An increase in production costs and the cost of construction, an increase in potential 

liability for concrete producers. 

Currently, the regulatory status of small amounts of fly ash in waste streams for concrete production and 

construction is unclear. Any proposed rule sould -- should explicitly state that such waste streams from 

the concrete industry are exempt and not subject to such regulations. There will also be litigation which 

will target existing structures built with fly ash and concrete. 

Potentially stricter state laws impacting beneficial use, for example, a proposed rule in the State of 

Maryland states that any product containing fly ash is to be disposed of in a special facility authorized to 

accept fly ash. More states will establish similar laws as a result. 

The potential elimination of fly ash in -- in concrete. A hazardous waste stigma and fear of liability will 

drive specifying engineers, architects and end-users to disallow the use of fly ash in concrete. 

There will be a drastic impact upon the durability of our nature's -- nature's -- nation's infrastructure and 

the current re-authorization legislation of SAFETEA-LU

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0048-2

Organization1:Sphere One

Commenter1:Ryan Brownhill

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

The EPA has stated that they are committed to the beneficial use of CCPs and acknowledge the huge 

reduction in greenhouse gas emissions that are achieved by their use. They have repeatedly stated that 

they don't believe a Subtitle C regulation will create a stigma against CCPs and may increase the amount 

of CCPs recycled. 

Our business is almost solely comprised of recycling CCPs. If what the EPA says is true, then the 

industry that stands to benefit the most from a Subtitle C designation is ours. We would be leading the 

charge for Subtitle C. We're not, because we know that the opposite is true. 

Using the past history of increased ra -- recycling in other industries to create a rule is like saying "we 

have seen that freezing temperatures in Florida is good for the heating oil industry, so freezing 

temperatures will be good for the orange growers as well." That sounds ridiculous but it's basically the lar 
576

-- the logic being used by the EPA. 

It would be irresponsible for the EPA to make the assumptions they have and not engage the experts in 

these markets. 

The actions of our suppliers and customers continue to show that this stigma is real. One contract at a 

major supplier has recently expired. This supplier has refused to enter into a contract renewal until the 

EPA makes a final ruling and they see that it will not be a Subtitle C regulation. A major building 

products customer of ours has told us directly that a Subtitle C regulation would deter them from using 

cenospheres and have already begun to explore alternative materials. Another customer has said that they 

are very concerned with this stigma and are slowing work in fly ash-related technologies until they see the 

outcome, even though they have extensively tested our material and have independently determined that it 

is safe. 

The negative stigma is already affecting our business. It will only get worse if Subtitle C is implemented. 

Based on our experience with this market and all of our conversations with cuth -- customers, we can't see 

how we will be able to stay in business. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0055-2

Organization1:Vectren Corporation

Commenter1:Angila Retherford

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Vectren believes that any regulation that adds a hazardous waste designation for this material, such as the 

Subtitle C option and the current proposal, could be counterproductive and present a potential stigma on 

beneficial reuse, effectively undermining successful recycling efforts such as those currently being 

undertaken by Vectren. 

Vectren applauds EPAs continued and strong public support for the beneficial reuse of CCRs. While 

Vectren agrees that increased regulatory costs can incentivise beneficial reuse, the unnecessary 

classification of this material as hazardous waste will potentially have the opposite effect than that

intended by EPA due to the stigma and negative perception of hazardous waste classifications. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0058-1

Organization1:Gibbco

Commenter1:Brian Keplinger

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Being the operations manager, I have a very close working relationship with both the customers that we 

serve as well as the vendors that serve us. Most all of the customers that I serve have a very close eye on 

the forthcoming ruling. 

Regardless of the wording, a Subtitle C designation will force my customers away from the beneficial 

reuse of boiler-slag products on to naturally mined materials. Why? Stigma. Plain and simple stigma. In 

this litigious society that we live in today, my customers are not willing to risk utilizing a product that in 

one location is considered hazardous and in another not. 

The trickle-down effect following this will make it nearly impossible to maintain a viable business, 
577

therefore, resulting in the loss of jobs for my employees, as well as a loss of revenue and more jobs in the 

businesses that serve us. 

What will the end result be? A Subtitle C designation will result in exactly the opposite result of what the 

EPA has stated in the memo dated May the 4th of 2010, stating environmentally-sound beneficial reuses 

of ash conserve resource, reduce greenhouse gas emissions, lessen the need for waste disposal units, and 

provide significant domestic economic benefits. 

My customers will be forced away from beneficially reused CCPs and towards using mined natural 

resources requiring additional energy in the form of fossil fuels, natural gas, and electricity, furthering an 

increase in carbon footprint. These resources will have a greater cost associated with them, a cost that will 

be passed on to each of us as we use them. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0059-2

Organization1:Pearce Ready Mix Concrete Company

Commenter1:Brian Harper

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

I am concerned about the negative impacts that this public debate may have on the perception of using of 

fly ash in any form. I urge you to make decisions concerning whether to label fly ash as a hazardous 

material based on sound, scientific data and discussion and not on emotion. 

Labeling fly ash as a hazardous material will stop most of the use of this product in any type of capacity 

due to perceived liability issues, and will currently add an additional 30 million tons of fly ash to existing 

or new landfills, thus compounding problems with storage that already exist. 

I support the protection of human health and the environment. I also sup -- support responsible recycling 

of fly ash without creating undue burdens or concerns in the user marketplace. If the EPA designates fly 

ash as a special waste or a hazardous material under Subsitle -- Subtitle C, this would bring an uncertainty 

or stigma to the product that will be detrimental to any and all recycling efforts.

My company has used fly ash in ready mix concrete for over 25 years. But if it were re-labeled as a 

hazardous material, we would be forced to no longer use this time-proven beneficial material ingredient 

due to a simple change of wording. Coal fly ash should not be labeled hazardous if it can be controlled by 

non-hazardous regulations. Thank you for allowing me to express my opinion.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0060-1

Organization1:Mineral Resource Technologies

Commenter1:Walter LaMaire

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

In the proposal, the EPA has asked for examples of the stigma claimed by many in the CCP beneficial use 

industry. Although -- although the full effect of its stigma cannot be realized until the proposed rule 

making is finalized, there have been some -- a few examples of how potential end users will react to a 

Subtitle C hazardous classification of fly ash. 

In a letter from the Los Angeles Unified School District dated April 27th, 2010 in reference to the Design 
578

Procedure Clarification Number 154, it states, quote, "Stop the use of fly ash in LAUSD projects until the 

EPA confirms fly ash to be a non-hazardous toxic waste," end quote, and this is to be implemented to, 

quote, "All projects," end quote. 

The Marquette Board of Light and Power is building a new dam at the Marquette Tourist Park. 

Traditionally, fly ash is used in large mass concrete pours, such as dams, to control the heat of hydration, 

prevent cracking, decrease permeability, and lengthen service life. 

The owner's design engineers specified a concrete mix design that prohibited fly ash being of the po -- fly 

ash because of the potential hazardous classification by the EPA. Due to the exclusion of fly ash, the 

concrete required massive amounts of ice that increased the cost, degraded the permeability and long-term 

durability of the project. 

The American Coad -- the American Concrete Institute, ACI, is a non-profit technical and education 

society organized in 1904, and is one of the world's leading authorities on concrete technology. ACI 

publishes reliable infloma -- information on concrete and its applications, conducts educational seminars, 

and provides a standard certification program for the industry. 

They've conducted a survey to determine how the specifiers and end users will use CCPs in the future 

based on the proposed EPA ruling. There have been 1211 respondents to date, and the survey should be 

completed and compiled by the close of public comments on November 19th, 2010. 

Preliminary results indicate that among producers and suppliers, only 3% would increase and 52% would 

decrease or cease CCP use under a Subtitle C designation, while 31% remain uncertain. Among architects 

and engineers, only 4% would increase, and 43% would decrease or cease CCP use under a Subtitle C 

regulation. Among government entities and educators, only 6% would increase and 19% would decrease 

or cease CCP use, while 35% are uncertain under a Subtitle C regulation. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0063-1

Organization1:Charah

Commenter1:Bruce Kramer

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

The EPA's assumption that the Subtitle C regulation will result in an increase in beneficial use is contrary 

to our experience as a daily participant in the beneficial-use marketplace. 

Further, our experience has already demonstrated that the stigma impact is causing users of ash to switch 

to other materials because of fear of negative publicity associated with the proposed rules and references 

in the media to toxic or hazardous waste. 

We do not feel the approach of regulating CCR disposal under Subtitle C, while maintaining their Bevill 

exception status for recycling, will be successful in a beneficial-use marketplace. We do not believe there 

to be enough difference between the environmental protective features proposed in the Subtitle C and D 

Options to warrant risking damage to the marketability of CCRs that we believe will accompany a 

Subtitle C classification; nor do we believe the risk is worth jeopardizing the hundreds of direct and 

indirect jobs supported by Charah and our recycling efforts. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0101-1

Organization1:American Coal Ash Association

Commenter1:Mark Bryant

Commenter Type: Trade Association
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Classification: Substantive

Comment Excerpt Text:

In previous testimony, I have presented real- world examples of negative stigma created by the 

ambiguous, multi-optioned proposed rule making that could result in managing CCRs under RCRA 

Subtitle C as a hazardous waste. The stigma is real. And the most recent example is these very hearings 

where we are observing non-ash competing commercial products supporting an RCRA Subtitle C option 

for no other reason than to gain financial advantage. 

These competing products know the impact that this will have on the market. It will be devastating to 

CCRs

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0104-1

Organization1:

Commenter1:Marsha Hicks

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

It's my understanding that the Bevill exemption will remain in place for beneficial use of CCRs, so these 

regulations will not change requirements for beneficial use. However, if they are regulated as a hazardous 

waste, this will place a stigma on the materials that will damage the recycling industry and hinder the 

ability to market CCRs for recycling and recycled products. 

The company I work for has already experienced the impact of negative publicity that refers to coal ash as 

hazardous. This has potential for a large negative impact on the environment, resulting in more coal ash 

being disposed of in impoundments and landfills. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0110-1

Organization1:University of Kentucky Center for Applied Energy Research

Commenter1:Tom Robl

Commenter Type: Academia

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

The US EPA, however, claims that classification of coal ash as a -- a C material under the dual system of 

management will actually increase the beneficial reuse of coal combustion products. This is simply not 

borne out by experience with other materials, nor from the response from the producers themselves, other 

consumers, or regulators. To quote Mr. Paul Thompson, vice president for Energy Services of E.On-US, 

who -- who stated if ash is -- who states, "If ash is classified as a hazardous material, I would consider it 

irresponsible on our part to allow it be disposed of in any other way than in a properly certified hazardous 

material repository." 

Of -- of -- the agency has been warned on the consumer side by expert organizations, such as ASTM, 

ACI, and the National Ready Mix Association, that prohibitions, the utilizations, will occur as long-term 

liability uncertainties, insurance, and handling restrictions become important.

Response: The Agency acknowledges and appreciates the comment
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Comment Number: TRANS-LVL-0115-1

Organization1:Citizens for Recycling First (his comment was submitted as a concerned citizen)

Commenter1:Ben Franklin

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

I've read through both proposals and see very little difference in either one of them. The main differences 

that jump out at me are -- are that under Subtitle C, hazardous, the EPA will have control over regulation 

of how these materials are stored and how they are beneficially used. 

You would regulate the materials under a hazardous guideline, but create a new subcategory called 

special waste. I also understand it would take close to five years for the EPA to implement that Subtitle C 

plan. 

Under Subtitle D, however, the non-hazardous proposal, the individual state would continue -- the 

individual states would continue to regulate the materials as a solid waste, as they currently do, but with 

federal oversight. Again, the EPA has stated that with the Subtitle D plan, it could be implemented in less 

than two years, not in five. 

When comparing the two proposals, all else seems virtually the same. From what I've read, both proposals 

are equally protective of both humans and the environment, so why would the EPA want to wait another 

three to implement virtually the same plan, not to mention, risk ruining the very thing you seek to 

accomplish, which is keeping more of these CCPs from the impoundments and landfills? 

The EPA has looked at CCPs in the past under both Democrat and Republican Congresses and presidents, 

and every time the EPA has returned with the verdict that there is no way that CCPs can be considered 

hazardous and they should stay exempt under the Bevill Amendment.

By creating stigma and liability under Subtitle C, you will not only kill the recycling of a beneficial 

material, but you will inadvertently increase greenhouse gas emissions, decrease landfill space, increase 

the mining of virgin construction materials, and increase energy use. 

I'm asking you again to make the smart decision and pick the new -- the right proposal based on the facts 

and not on the politics of the day. The right choice and the only choice is that of Subtitle D, nonhazardous.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0121-1

Organization1:

Commenter1:Bobby Raia

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

As a believer in recycling, I am proud to be part of the best recycling industry in America. Yet we're here 

today at a crossroad where the EPA has proposed Subtitle C, special waste approach. To regulate coal ash 

threatens the core values and ultimate objectives of recycling by subjecting coal ash to a stigma that 

would impact the coal ash recycling industry. 

Coal ash is primarily recycling concrete to enhance its strength, durability and resistance to elements. 

Concrete is used in nearly all infrastructure construction, including bridges, buildings, houses, dams, and 

roads. However, hazardous regulation of coal ash would create a negative perspective for the use in this 

concrete forcing engineers, architects and contractors to use alternate and non-spec materials ultimately 

resulting in higher infrastructure costs. 
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Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0140-2

Organization1:NuForm Materials

Commenter1:Brock Marrs

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Unfortunately, our company does not share the same vision as some who would support the labeling of 

fly ash as hazardous under the Subtitle C approach. Despite any effort to exempt beneficial reuse from the 

hazardous label, we feel strongly that the stigma associated would greatly hamper our efforts for 

developing new recycling products. 

Potential customers will turn away at the thought of incorporating a hazardous material into their 

products. Equally as important, the utilities that generate fly ash are far less likely to allow us to acc -- to 

allow us access to process, remove and market a material that, if left alone, would be labeled hazardous. 

NuForm Materials is not opposed to new, tougher regulations for coal ash disposal. But it doesn't make 

sense to simultaneously negatively impact recycling programs such as ours. Labeling coal ash as a 

hazardous waste will do great harm to our efforts of developing lighter car parts and energy-efficient 

insulating materials. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0142-2

Organization1:Charah

Commenter1:Danny Gray

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

We do not believe that regulation of CCR under Subtitle C can occur without damage to our recycling 

business and recycling industry. Our experience already indicates that, while under review that the 

Subtitle D of -- C approach recycling has decreased in valuable resources are already being disposed of 

instead of being saved and replaced in virgin resources. Our customers are concerned that the hazardous 

waste regulation approach will cause them liabilities that are hard to quantify and very difficult to 

manage. 

Our sales have already seen negative impacts of the ongoing debate primarily related to the publicity 

around the toxicity and hazardous labels that are related to it. We ask EPA to regulate under -- to avoid 

regulating CCR as under Subtitle C and prevent the continued damage to the recycling industry

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0175-1

Organization1:Kentucky Association of Manufacturers

Commenter1:Greg Higdon

Commenter Type: Trade Association

Classification: Substantive
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Comment Excerpt Text:

KAM is concerned that such heavy-handed regulation with the stigma attached to regulating under 

Subtitle C, even with an exemption for beneficial reuse, would effectively eliminate the beneficial reuse 

of coal ash. KAM is extremely concerned about the resident (sic ?) significantly higher cost increases for 

energy that would come from regulation of CCRs under Subtitle C.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0006-1

Organization1:PPL Corporation

Commenter1:Craig Shamory

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Conversely, federal Subtitle C hazardous waste regulation would severely limit -- and most likely

eliminate -- beneficial uses, including cement industry applications and mine reclamation. Beneficial uses 

create thousands of jobs and provide their own significant environmental benefits. The impact of 

beneficial uses from the stigma of labeling CCR's as hazardous waste is real and is already occurring.

One of PPL's largest marketers of coal ash for concrete products has had one of its main customers stop 

using coal ash. Why? Potential product liabilities if EPA actually regulates CCRs as a hazardous waste. 

Furthermore, many companies have told our marketers that they will not use coal ash in their products if 

CCR's are classified as a hazardous waste regardless of any exclusions provided by the EPA. Why? They 

don't want their products to contain an ingredient that would otherwise be subject to hazardous waste 

regulation. Based on EPA's own economic analysis, if a subtitle C regulation eliminates beneficial uses, 

the financial impact on our struggling economy will be in the billions of dollars. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0009-2

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

People will not want to keep using coal ash, however, if it is branded as hazardous waste when destined 

for a landfill. The coal ash that goes into concrete, for instance, is chemically and mechanically identical 

to coal ash that gets disposed. If EPA decides to regulate coal ash disposal as a hazardous waste, 

producers and consumers of products containing coal as will be confronted with using a material deemed 

hazardous in another setting. Ask many people who will testify at this hearing today whether they want 

hazardous waste in their home or school and you will see that stigma is a real factor that will devastate 

recycling efforts.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0010-2

Organization1:Electric Power Generation Association

Commenter1:Doug Biden

Commenter Type: Trade Association

Classification: Substantive
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Comment Excerpt Text:

The issue of the stigma associated with regulating CCRs as a hazardous waste is clearly pivotal to any 

cost-benefit analysis of this proposal. EPA and others appear to believe that the dramatically higher costs 

imposed by hazardous waste disposal will incent greater beneficial use of CCRs. 

We respectfully disagree with this view. Generators produce coal combustion by-products that compete in 

a market place with other natural and recycled products that are not called toxic, hazardous or special 

wastes. Words and labels have meaning and, when all else is equal, non-hazardous is much better than 

hazardous when trying to sell product. 

There is no question that the Subtitle C option will have a far-reaching adverse effect on beneficial use. 

EPA should not expect generators, marketers and users to readily accept the potential liability associated 

with use of a material that would otherwise be fully regulated as a hazardous waste. They are essentially 

the same materials, beneficially used or disposed. 

EPGA's members are competitive generators, not state-regulated utilities.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0025-2

Organization1:Alcoa

Commenter1:Tony Schoedel

Commenter Type: Other Company

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

Two, the use of CCRs and the beneficial uses, that you've heard many times here in the previous public 

comments, will be harmed by the designation, we believe, under Subtitle C designation. Already in public 

comments as I mentioned, calling for further regulation of CCRs usually capsulated, capsulated forms at 

the end of life. The potential for litigation will harm the use of these materials and, as you've heard also, 

applying this stigma to the long use material will have the impact of stifling this use and will have more 

of an impact to the landfills not less and just exacerbating the existing problems.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0028-2

Organization1:Headwaters Resources (spoke as employee)

Commenter1:Mike Robinson

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Our company and our competitors, along with the utilities and a host of other companies and agencies, 

have dedicated a tremendous amount of time and effort over the years to create one of the most successful 

recycling programs in history. On an annual basis, over 20 million tons, yes tons, of coal ash get recycled 

into everyday products like concrete, blocks, roads, pre-cast, etc. However, if coal ash is designated as a 

hazardous material, even for disposal, the stigma attached to coal ash will negatively affect, if not 

decimate, this recycling program that many companies, agencies and individuals have taken great pains to 

successfully build over the years. 

If you label coal ash as hazardous material for any reason, many utilities will stop recycling their ash 

products and instead will more likely just dispose of them, many architects and engineers who specify the 

use of coal ash in products and projects will most likely cease to do so for fear of risk of association with 

products that could be potentially hazardous and products that compete with coal ash will attack coal ash 

as a hazardous material and not fit for reuse. If you label ash as hazardous for any reason, end users who 
584

have used coal ash in the past will stop doing so for fear of being liable for their products end use, even if 

the products are completely safe. Overall, labeling ash as hazardous for any reason will negate one of the 

most beneficial recycling programs ever developed and this is troubling. 

So, I urge the EPA to think long and hard before finalizing any coal ash classification. In fact, it might 

prove wise for the EPA to work closely with the companies, agencies and individuals who built the coal 

ash recycling programs in place today. In the 20 years with the company, I do not know of any cases 

where exposure to coal ash has caused any illness to employees. So, I don't think we need to be in a hurry 

to do anything unless it is the right thing. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0030-2

Organization1:Boral Composites

Commenter1:Greg Glander

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

As such, we are extremely concerned about the EPA's proposed regulations for re-labeling CCRs as 

hazardous through a RCRA Subtitle C designation and the negative stigma that would create within our 

customer base, the homebuilders, contractors, installers and homeowners. Our customers are not scientist, 

environmental policy makers or lawyers. They will likely not be aware that the EPA has formally 

encouraged the use of CCRs since 1983, or that the EPA has previously ruled that CCRs are 

nonhazardous, going as far as to form the Coal Combustion Products Partnership program in 2003. Or 

that the US Green Building Council, American Society for Testing and Materials and the American 

Concrete Institute all endorse and encourage the use of CCRs. Or that the beneficial use of CCRs diverts 

approximately 60 million tons of CCRs from landfills annually and has reduced Greenhouse Gas 

Emissions by approximately 117 million tons since the year 2000. Unfortunately, our customers are more 

likely to hear inaccurate information about CCRs and their beneficial uses from uninformed and/or biased 

media sources; negative stigmas that will only be exacerbated with an unwarranted change in designation 

to RCRA Subtitle C.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0030-3

Organization1:Boral Composites

Commenter1:Greg Glander

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 9.2.2.2

Comment Excerpt Text:

Boral Composites is only a small, start-up business; but it is a great example of the green-tech, advanced 

manufacturing opportunities that our economy desperately needs. On Thursday, September 9th, we 

celebrated the groundbreaking for our first commercial full scale manufacturing facility being built in 

East Spencer, North Carolina. A $13 million, 3.7 acre, Leadership in Energy and Environmental Design 

certified project that will create 25 jobs when fully operational, as well as another 20 in sales and support 

throughout the country. We are also on the forefront of building product sustainability, with our exterior 

trim product about to receive the prestigious Cradle to Cradle Certification. The decision that the EPA 

makes around CCR classification will directly impact this new green-tech business, these new job 

opportunities and the future job opportunities that this business would create. The negative stigma 

associated with a hazardous classification through Subtitle C is real and will virtually eliminate the 

demand for our products and our business overnight
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Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0031-1

Organization1:Separation Technologies

Commenter1:Thomas Collins

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.1.1 10.4.6

Comment Excerpt Text:

Separation Technologies process and markets fly ash are up in the Northeast in the Eastern United State 

and is utilized by the concrete industry. Because of ST's proprietary technology, this fly ash would 

previously be bound for a landfill and now it can be used and recycled for concrete products. 

This year, and you've heard this before, 15 million tons of fly ash will be recycled in concrete. I visit with 

concrete producers each and every day and a vast majority of them fear the negative impact that Subtitle 

C would have on their industry, specifically to the hazardous designation. Even with the beneficial use 

included, they still fear that. 

As a gentleman said before, let me assure the negative stigma surrounding or hazardous designation of 

Subtitle C is real. Many of my producers say they will stop using it just on the liability standpoint. I really 

feel you should consider that for finalizing the regulations. 

Secondly, concrete producers utilize fly ash for a number of reasons, specifically, to reduce cost and to 

improve overall performance. Also, fly ash is a vital construction material. It will not only increase 

construction costs, but will impact the durability of our infrastructure. Thank you and please know that I 

am opposed to Subtitle C

. Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0032-2

Organization1:

Commenter1:Darrell Wilson

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Bayshore Concrete Products of Cape Charles, Virginia is best known for producing the concrete piers and 

segments that created the Chesapeake Bay Bridge Tunnel. They have stated to me, beyond a doubt, if fly 

ash is labeled under Subtitle C, a hazardous material, they will cease to use this material in their concrete 

products. Capital Concrete of Norfolk, Virginia has also said they will likely to stop using fly ash in all of 

their concrete if it is labeled under Subtitle C. They are a small family business. They are afraid of the 

liabilities and they cannot afford the risk associated with this. This is just two of my customers in a 

relatively small area of the country that said they will stop using fly ash under Subtitle C. 

Capital Concrete has also spoken to three engineering firms in the Norfolk area. They have all said that 

should fly ash be labeled under Subtitle C, they will cease to specify in their projects. Others we have 

spoken to have not yet decided if they will continue to specify fly ash, but they have expressed concerns. 

If they do not specify fly ash in their projects, then I do not recycle it and it goes into a landfill. Those are 

facts not opinions. 

Response: The Agency acknowledges and appreciates the comment
586

Comment Number: TRANS-PIT-0034-1

Organization1:International Brotherhood of Electrical Workers

Commenter1:Michael Welsh

Commenter Type: Union

Classification: Substantive

Other Sections: 9.2.2.1

Comment Excerpt Text:

The IBEW represent thousands of workers in Pennsylvania and throughout the country that work at coal 

fired generation stations or have jobs directly tied to the generating stations, and to classify coal ash as a 

hazard material could put many of those jobs at risk. The increased cost that would be created due to a 

hazard material classification could force the early shut down of many of the smaller generating stations. 

Even though coal ash would be called special waste, it still would be listed with the hazardous material 

and there would be a reluctance to recycle coal ash.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0046-2

Organization1:Scrubgrass Generating Plant

Commenter1:Peter Rigney

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Excerpt Text:

This ash is beneficially used. We are looking at other opportunities to use this ash. Should this be 

classified as a hazardous waste, then the liabilities will increase. We will also be required to -- you know, 

just the stigma attached to it will end any future opportunities, and there are many opportunities we are 

looking at now for everything from fertilizers to mixing it with sludges to take care of the solid sludge 

waste problem that a lot of cities face. We are looking at that as a fuel process using our ash. If it's 

declared hazardous, that is completely in jeopardy. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0048-1

Organization1:Separation Technologies

Commenter1:Tom Cerullo

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1 10.4.6

Comment Excerpt Text:

Subtitle C regulations, even with the exemption for beneficial use, will create two conditions that will 

have a deep, negative impact on the recycling industry. 

One, many power companies will not want to put ash into beneficial uses because they cannot and will 

not tolerate the liability of having ash make a left turn out of their property and be designated a hazardous 

material, while that same hazardous material is making a right turn out of their property is being placed in 

concrete sidewalks, home basements and driveways. The risk at this point is too close for comfort, and 

power companies will take the safe route and dispose of all their ash. 

Two, users of concrete with recycled fly ash will be unwilling to draw a distinction between the 

nonhazardous material that they are receiving and the exact same material that is going to the hazardous 

landfill. In the consumer's mind, it's all hazardous and they will not buy the fly ash product. 

My company works with power companies every day. We sell recycled fly ash to concrete producers 

every day. We know this industry. We want to grow our business, but Subtitle C regulations as proposed 

by EPA will create a stigma, profoundly damage the use of fly ash in concrete and drive power companies 

away from recycling. I urge you to reject Subtitle C and give every consideration to Subtitle D.
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Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0051-1

Organization1:Separation Technologies

Commenter1:Brian Dulaney

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

I have spent the last two years diligently working to increase market acceptance of fly ash in the concrete 

industry. Because of this daily activity, I am strongly opposed to the Subtitle C designation. 

Let me assure you that the stigma of a hazardous label is very real. I have daily conversations with 

customers and specifying engineers and without fail this is a pressing concern. On too many occasions, 

this conversation concludes with I don't know if I will be able to continue to use fly ash if they call it 

hazardous.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0056-2

Organization1:Midwest Coal Ash Association

Commenter1:Gary Haney

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The crippling effect to beneficial use from a hazardous approach is real. In 1994, DOE reported to 

Congress that institutional and regulatory barriers to increased use exist when fly ash is regulated as a 

solid waste and designated by EPA RCRA as a solid waste, even when they are utilized rather than 

disposed. They also reported that environmental liability becomes a strong deterrent to use of any 

byproduct that is designated and regulated as a solid waste. Yet EPA is considering designation as a 

hazardous waste and they believe that this will not create a barrier on this use. 

Letters to EPA from generators, marketers, state regulators and users on the potential reclassification of 

coal ash as hazardous mention: Additional costs to manage, increases in insurance costs, hazmat training 

requirements, ready-mix and cement plants being designated hazardous waste facilities, increased toxic 

tort exposures, etc. None of these suggest a willingness or encouragement to use more.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0058-1

Organization1:American Bituminous Power Partners

Commenter1:Shawn Jennings

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Excerpt Text:

AMBIT has transposed the federal and mine site and other similar sites in the area into green areas. 

Today, Paw Paw stream is not only a healthy stream but a West Virginia DNR trout stocked stream. The 

coal combustion byproducts that we generate are used not only on the gob and silt reclamation sites but 
588

on other strip mining sites to reclaim the land to the original contour. The ash is used as a fill and to seal 

in the coal seams with a highly alkaline material. Today, very little of our ash goes to our on-site storage 

facility. At present, over 90 percent of AMBIT's ash is utilized for beneficial use as directed by the WV 

DEP. 

We are currently in the process of reclaiming coal waste sites in Barrackville and Farmington, West 

Virginia. These two sites are environmental debacles that AMBIT is cleaning up at no cost to the 

taxpayers. If the EPA takes away the beneficial use classification of our ash the viability of our project 

will be in jeopardy. As Ambit goes so will the prospects of these sites and future sites similar being 

returned to green ecological areas. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0069-3

Organization1:FirstEnergy

Commenter1:Ray Evans

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Let me add that U.S. EPA's proposed hazardous waste option is already having a negative impact on the 

beneficial use of CCFs marketed by First Energy. Concern about product liability lawsuits has reduced 

interest in products such as ash and gypsum. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0081-1

Organization1:Sunbury Generation

Commenter1:Teresa Copenhaver

Commenter Type: Electric Utility Facility

Classification: Substantive

Other Sections: 9.5.2

Comment Excerpt Text:

In summary, we are aware that some groups believe that the increased cost in disposal of cal ash as a 

hazardous waste would increase the beneficial uses of coal ash. We do not agree and, in fact, governors 

and environmental departments from a majority of the affected states representing millions of citizens and 

jobs have written to the EPA stating that ash should not be declared hazardous.

In Subury's case, it would end our beneficial use of ash and add significant cost to our operations and 

ultimately to the Pennsylvania households we serve. The effect of this decision would be disastrous to the 

economy of our community if such an unreasonable rule causes us to go out of business. 

Regulation of coal ash as hazardous waste would prevent many current beneficial uses due to the potential 

liability, handling and transportation costs, as well as the stigma of using a hazardous waste.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0085-2

Organization1:Separation Technologies

Commenter1:Jim Bittner

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.6
589

Comment Excerpt Text:

In 2008, ST was planning to invest another 35 to 40 million dollars in ash recycling plants creating 

another 25 to 30 well-paying jobs. However, since March 2009 when the EPA reopened the issue of 

regulating ash as a hazardous waste, my company and our utility partners have stopped all investments in 

ash recycling. 

Our utility partners will not risk the potential liabilities of their ash being used in concrete if ash is 

regulated under the Subtitle C hazardous option. 

Our concrete producer customers are becoming wary of ash because our competitors who are selling 

imported slag are warning of the potential liabilities associated with using ash. Thus, this proposed 

regulation has already become a job killer at a time when the US economy is in dire need of good jobs.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0085-3

Organization1:Separation Technologies

Commenter1:Jim Bittner

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

However, the stigma of a Subtitle C hazardous approach will reduce the amount of ash recycled and 

increase the amount of ash disposed in landfills. Just the consideration of the Subtitle C option has 

already stopped investment and job growth in our industry. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0091-1

Organization1:Separation Technologies

Commenter1:Jonathan Cahill

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

The perception and stigma that would follow this labeling would likely have far reaching effects on the 

use of fly ash in concrete. The average person won't take the time to understand how fly ash could be 

hazardous waste if it is away in a landfill some place, but it is perfectly safe when it is made in concrete in 

the basement where their children play. Many architects and builders do not want to risk to perceive the 

potential liability of specifying fly ash into the concrete. The EPA has long held based on extensive 

testing, the safest place for fly ash is in concrete, so the travesty for fly ash to cease to be used in that 

application. All of the regulations, which are so needed, can be achieved through RCRA Subtitle D 

without the great negative impact on our environment that would come through Subtitle C classification. 

My job is a source of great pride to me because of the impact I can have on the environment. I ask that in 

order to ensure the positive environmental impact of fly ash will continue, I ask that you decide not to 

regulate fly ash under Subtitle C.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0092-3

Organization1:Separation Technologies
590

Commenter1:Kyle Flynn

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

Instead of being recycled, this material will be sent to a landfill, an expensive and unnecessary cost that 

will ultimately be carried by electricity consumers. 

Allowing coal ash to accumulate in landfills across the country is not only costly, but unwarranted. In 

numerous documents, including testimony given to Congress as recently as 2008, the EPA has asserted 

that the risks associated with the reuse of coal ash in concrete are, quote, likely to be insignificant. In 

2000, the EPA concluded that national regulation under the Resource Conservation and Recovery ACT, 

RCRA, is not warranted. The science behind coal ash has not changed since these statements were issued, 

only the politics. 

In summary, I urge the EPA to carefully consider the effects of the proposed Subtitle C regulatory 

approach, and the unintended consequences that would follow in its wake. Coal ash does not meet the 

qualifications for hazardous waste, and should not be labeled as such. Such a stigma would limit its 

beneficial reuse and increase the volume of coal ash landfilled each year. The environmentally 

responsible thing to do is support beneficial as a means of reducing coal ash waste.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0104-1

Organization1:Sphere One

Commenter1:Mark Bonne

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

EPA has stated that a Subtitle C regulation will not create a disincentive for domestic based industries to 

use fly ash based products. Sphere One has reviewed the upcoming regulation with key customers and the 

majority of them have expressed their intentions to remove all forms of fly ash from their compounds if 

Subtitle C becomes law. Most of the alternative materials being considered carry additional cost and are 

lower performing. American industries will be at a competitive disadvantage to products made outside the 

U.S. using fly ash not subject to Subtitle C. 

Our refractory customers will be especially hard hit by the loss of availability of these unique materials 

for which viable alternative yet to be developed. Cenosphere have become invaluable for specialty 

compounds used in the casting of aluminium and steel compounds. The most likely outcome for the 

multi-national companies will be to move the manufacturing jobs off U.S. soil even the plants in EU, 

Canada and South America. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0104-2

Organization1:Sphere One

Commenter1:Mark Bonne

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.5.1.6 4.1.1

Comment Excerpt Text:

I support the EPA's need to protect the American public from heavy metal contamination, which were 
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improperly stored. The heavy metals found in Cenospheres are fused into aluminum silicate shell offer no 

health risk. These materials are then encapsulated in cement or a polymeric matrix, which makes them 

biologically insoluble. If the EPA designates CCRs as hazardous waste when being disposed of, the 

American public will consider it hazardous materials in all cases and won't let their use in their homes. 

Subtitle D regulations with strong enforcement will allow American industries find suitable extended 

service life applications for fly ash products. This is a much better option than landfilling them under 

Subtitle C. 

It isn't economically advantageous to landfill all these products and it's just transfers the problem from the 

power plant to the landfill. I agree that the proposed legislation creates an incentive coal power to find 

applications for fly ash, but unfortunately, it make the materials unusable by private industry. If the EPA's 

intent is to assure that these materials be rendered environmentally inert, then Subtitle D is the best 

regulation. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0111-2

Organization1:Pennsylvania Aggregates and Concrete Association

Commenter1:Bruce Cody

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Last, but not least, the negative stigma Subtitle C will create. I work with architects and engineers every 

day and I know they will not specify the use of fly ash in ready-mix concrete with the hazardous waste 

designation.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0115-2

Organization1:American Concrete Pavement Association

Commenter1:Mark Snyder

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.6

Comment Excerpt Text:

The American Concrete Pavement Association is greatly concerned about a potential EPA reclassification 

of fly ash as a hazardous waste under RCRA Subtitle C. We believe that such reclassification would have 

significant unintended negative consequences -- even if exclusions were provided for certain uses. The 

stigma and potential legal exposure of incorporating a hazardous waste into concrete would have a 

crippling effect on its use, and might even make problematic the future disposal and repair of existing 

concrete containing fly ash. This reclassification has the potential to undo decades of advancement in 

pavement performance and would also result in a significant decrease in the sustainability of concrete 

materials for all applications, pavements, buildings, foundations, et cetera.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0117-2

Organization1:Ohio Ready Mixed Concrete Association

Commenter1:Gregory Colvin

Commenter Type: Trade Association

Classification: Substantive
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Other Sections: 10.4.6

Comment Excerpt Text:

The problem is that although it may well be exempted from regulation, it would still have the negative 

stigma of a hazardous waste. 

In discussing this issue with our membership, I found that most members would refrain from using fly ash 

in concrete, from fear of the liability factor of using a hazardous material in the production of their 

products. They do not agree with the EPA's assertion that the exemption would provide all the protection 

needed. Lawyers would have a field day with the idea of concrete producers using hazardous materials to 

produce concrete. Competitors of the concrete industry would also use the stigma against our industry.

Response: The Agency acknowledges and appreciates the comment

Section 10.4.4 - EPA solicits suggestions on methods by which it could reduce any perceived 

stigmatic impact that might indirectly arise from RCRA Subtitle C regulation of CCRs destined for 

disposal or identification of CCRs as special wastes under Subtitle C (35156, 35187, 35222)

Total Number of Submissions: 19

Total Number of Comments: 20

Comment Number: TRANS-ARL-0027-1

Organization1:Charah Incorporated

Commenter1:Danny Gray

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

Our company is very active in the recycling of coal combustion products that are derived from coal ash. 

We have invested substantial efforts and capital in expanding the beneficial use of CCPs, and we look 

forward to continued growth in one of the most successful recycling industries that operates in the United 

States. 

A successful recycling program provides tremendous benefits for the environment and improvements to 

construction materials, which are acknowledged by the scientific community, the construction industry, 

and EPA. Charah supports EPA's efforts to implement regulations to avoid structural failures of 

impoundments and require added safeguards for design and operation of CCR receiving ponds and 

landfills. 

We believe that the protective features are appropriate under Subtitle D and will provide -- and that will 

provide for disposal of CCRs in a manner that is consistent with the nature of the CCR materials requiring 

disposal. 

We take particular note of the fact that the environmental protective features proposed under the CCR 

landfills under Subtitle C, a regulation approach, and the Subtitle D alternates are essentially the same. 

Therefore, we believe that a Subtitle D regulatory program provides the necessary protection and is the 

only choice that will avoid damage to the recycling industry. 

Maintaining the success of the CCP recycling industry is in the best interest of all members of our society. 

We do not believe that regulation of CCRs under Subtitle C can occur without damaging the recycling 

industry. We as a company have already experienced customer loss associated with the proliferation of 

news coverage inappropriately referring to coal ash as a hazardous or toxic material. Our experience with 

the stigma impacts of the proposed labeling of CCR as a special waste under Subtitle C indicates that 

recycling will decrease the valuable resources -- will decrease recycling and valuable resources will be 

disposed of instead of beneficially used to save virgin materials. EPA's assumption that Subtitle C will 

result in an increase in beneficial use is contrary to our experience. 

In summary, our company has been involved in the management of CCRs and the beneficial use of CCPs 

for many years. The proposed regulations under C and D essentially have the same protective features for 

disposal. Therefore, we believe that taking the risk to damage the CCP recycling beneficial use industry 
593

from a Subtitle C approach is not warranted. 

As for the impact of stigma, we -- I can tell you firsthand that in the loss of customers who've said they 

would love to use our material, it makes their products better, but they have to switch because of the 

hazardous labeling

Response: The Agency acknowledges and appreciates the comment

Section 10.4.5 - EPA solicits info on whether issue of “stigma” will lead states to prohibit beneficial 

uses of CCRs under their state programs (35156); EPA solicits more specifics on potential for 

procedural difficulties for state programs and measures that EPA might adopt to try to mitigate 

these effects (35222-35223)

Total Number of Submissions: 62

Total Number of Comments: 96

Comment Number: TRANS-CHI-0040-3

Organization1:Great River Energy

Commenter1:Richard Lancaster

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

GRE operates in states with well developed waste regulations and standards that parallel, or are more 

stringent than, Subtitle D. These states have beneficial use regulations or standards that would not allow 

beneficial use if CCRs were determined to be hazardous. We also feel that those states with well 

developed programs should be allowed to continue to implement their Subtitle D compliant programs

Response: The Agency acknowledges and appreciates the comment

Section 10.4.6 - For those commenters who suggest that regulating CCRs under RCRA Subtitle C 

would raise liability issues, EPA requests they describe types of liability and basis/data/info for such 

claims (35156, 35223)

Total Number of Submissions: 275

Total Number of Comments: 314

Comment Number: TRANS-ARL-0005-3

Organization1:American Forest and Paper Association

Commenter1:Amy Schaffer

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

AF&PA members are extremely concerned with EPA's belief that beneficial use of coal combustion 

residues will rise if disposal is regulated under the hazardous waste regulations. Nothing is further from 

reality. 

Our members work hard to find beneficial uses for all of our residuals. It is not a question of whether the 

use is appropriate; it's a recognition of the reality of our litigious society. AF&PA members are very 

concerned that EPA did not evaluate the economic impact of the proposed rule for the manufacturing 

sector.

Response: The Agency acknowledges and appreciates the comment
594

Comment Number: TRANS-ARL-0055-1

Organization1:SEFA Group

Commenter1:Hank Keiper

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

The EPA proposal clearly states the Agency does not want to disrupt current recycling efforts. Members 

of the Agency stated during recent webinars they believe Subtitle C will dramatically increase CCB 

recycling. If that's true, then my company and I will benefit financially. So why do I argue against my 

own personal financial interest? 

My 25 years of experience as an engineer has taught me that engineers, architects and building owners are 

more risk averse than ever in our litigious society. I live near Chesterfield County, Virginia, where a 

Home Depot store was demolished in 1996. Coal combustion products were used to structural fill and 

incorrectly blamed for the building's settlement. Fourteen years later, people still prohibit the use of fly 

ash as an additive in concrete because of the Home Depot case. 

Fly ash was also listed as a possible cause of the problems relating to the Chinese drywall, but only if you 

dig much deeper will you learn there was no fly ash in the Chinese drywall, but the damage was done by 

mere association. My customers, concrete producers, are also concerned about stigma and liability. Under 

EPA's special waste proposals, two trucks will leave the power plant, one will turn right destined for 

disposal as hazardous waste, at the same time, the second truck with the exact same material on board will 

turn left and travel to my customer's plant with no restrictions other than the normal DOT. It's very 

difficult for the public, business owners and their attorneys to reconcile this concept. As an engineer, I 

believe the Subtitle D proposal option provides rigorous protection with common sense management 

practices. Agency staff freely admit the engineering safeguards in both proposals are virtually identical, 

so one must conclude that a Subtitle C designation is primarily an attempt to influence the commercial 

commodity market.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0061-2

Organization1:Titan America

Commenter1:Robert Sells

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

One of the things that is of great concern to the thousands of Ready-Mix concrete producers in the United 

States is the possible designation of hazardous waste. We have seen this before in other areas and are very 

much concerned. You've heard statements today already where specifiers have shied away from the use of 

fly ash in specifications simply because of the potential designation of ?hazardous?. This will not increase 

the use of fly ash in concrete and force power plants to supply more to Ready-Mix producers, it will 

actually decrease it. The Ready-Mix producer will shy away from the hazardous designation of fly ash 

and will not use the product because of the potential liability.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0064-3

Organization1:Boral Material Technologies

Commenter1:John Scoggan

Commenter Type: Beneficial User
595

Classification: Substantive

Comment Excerpt Text:

If you watch TV, 60 Minutes has aired two segments on how toxic coal ash is and has questioned its 

safety in products with the clear intent to scare consumers away from using these products. Owners, 

material specifiers, engineers and concrete producers will limit its use due to future legal liability 

exposure. Several utilities that we deal with have already told us they will limit or cease to allow 

recycling of coal waste due to legal exposures.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0086-1

Organization1:Separation Technologies

Commenter1:Tom Cerullo

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

It's our position as a company, as Separation Technologies, that Subtitle C would not benefit -- the 

beneficial-use industry would not benefit from the implementation of more processing equipment to take 

what would be landfilled ash into beneficial applications. 

When I meet with utilities and I describe to them our solutions for landfilling, their responses and their 

reactions now to me are: Thanks but no thanks; we need to wait and see how this EPA thing sorts itself 

out; if this thing goes Subtitle C, we're out of the beneficial-use business; we're worried about liability; 

we're worried about liabilities finding us from the use of this product in beneficial applications. 

Furthermore, they say we're unwilling to make the investment because if the liability doesn't get us, the 

destruction of the beneficial-use market will get us and so we will now have made an investment to 

beneficiate this ash and there'll no longer be a market to sell the product. 

So, I'm here to report to you as a business development person for a company that could benefit from 

regulations done the right way that we feel that Subtitle C is not the right way to go, and I'm here 

advocating for Subtitle D. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0117-2

Organization1:Union for Jobs and the Environment

Commenter1:Bill Cunningham

Commenter Type: Union

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

We are pleased to see that EPA has expressed its commitment to continued recycling of CCRs. We 

believe however that regulation of CCRs under the Hazardous Waste Subtitle C would stigmatize the use 

of these materials in construction products even if the materials are termed special waste. There is little 

doubt that the public would respond negatively if asked if they would approve recycling materials under 

hazardous waste. With uses of CCRs increasingly conscious of product liabilities, recycling is highly 

likely to be set back by regulation under Subtitle C.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0118-1

Organization1:Synthetic Materials LLC
596

Commenter1:Michael Beck

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.2.2.2

Comment Excerpt Text:

Synthetic Materials is a small business that will directly and negatively be impacted by a Subtitle C 

determination. Our primary customer base is for our washed and dried FGD gypsum that consists of 

wallboard and cement manufacturers. In the wake of the current economic recession, our customers are 

facing an extremely difficult present and an even more challenging and unknown future. With 

construction demand at historically low levels and the housing market struggling to show signs of life, our 

customers are forced to operate their plants at levels as low as 30 percent of their capacity. The market 

situation has forced plant closures, layoffs and investment stagnation. 

The above climate alone has created a very difficult way forward for SYNMAT's marketing department, 

and with the potential for FGD gypsum to be unfairly regulated as a hazardous waste despite being 

labeled a special waste, the potential to completely lose our customer base and suppliers is very real. We 

have both customers as well as suppliers refusing to move forward with contractual and other 

commitments made to SYNMAT not because of current market conditions or any perceived stigma of 

Subtitle C determination, but because of the real liability concerns that come with an absolutely 

unnecessary hazardous waste classification for coal combustion byproducts. 

For our wallboard customers especially, the compounding of the terrible housing market, the Chinese 

wallboard problems, the still remembered asbestos issue and the addition of classifying a major raw 

material as a hazardous waste creates a perfect storm that will severely hurt market recovery and potential 

for the overall health of the U.S. economy. 

The appropriate response is the proposed Subtitle D option. The catalyst to this discussion was a failed 

coal ash retention pond and not a hazardous waste. A proportional response is necessary to maintain a 

stable market for beneficial reuse and to significantly reduce the risk of such an accident again. That 

proportional response is Subtitle D

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0128-3

Organization1:International Brotherhood of Electrical Workers

Commenter1:Bruce Burton

Commenter Type: Union

Classification: Substantive

Comment Excerpt Text:

Any lawsuit against recycling would be substantially assisted by regulating CCRs under Subtitle C. With 

the users of CCRs increasingly conscious of product liability, placing coal ash under Subtitle C will 

greatly set back, if not destroy, recycling efforts. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0009-2

Organization1:Natural Resource Technology

Commenter1:Robert Karnauskas

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

We are concerned that the proposed Subtitle C designation, if implemented, would adversely affect 
597

beneficial reuse of CCRs, particularly encapsulated applications, if the materials are perceived as having 

long- term liability risk. A similar concern was recently echoed in another editorial published in the 

Milwaukee Journal Sentinel which is referenced in our written comments. We're here to tell USEPA to 

continue to rely on sound science in making their decisions on this issue.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0024-2

Organization1:WeCare Technology Group

Commenter1:Michael Nicholson

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

WeCare is concerned about the final outcome of the proposed rules as pertains to the perception of "safety 

and liability" on the use of coal ash materials in agriculture if they are deemed or managed as hazardous 

materials (Subtitle C) in applications. WeCare is not opposed to the requirements similar to biosolids in 

management practices required under 40 CFR Part 503.

WeCare offers this thought for consideration. Public health, safety, and, perhaps most importantly, 

liability, are obviously the key concerns of EPA and the industry. WeCare, under the current regulatory 

environment (including 40 CFR Part 503), has been able to secure products liability insurance for the 

combined coal and biosolids products manufactured and sold to the farming community. The ability to 

secure such product liability has been a strong indicator to our consumers that in fact WeCare has taken 

the proactive step to insure the safety and ultimate liability in utilizing these combined materials. 

In making its final determinations regarding coal ash management, we ask that EPA consider the impacts 

of its actions as it relates to the insurance community and how the insurance community would evaluate 

the practice in providing products liability insurance.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0047-3

Organization1:American Concrete Pavement Association

Commenter1:Randell Riley

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Unfortunately, in the litigious society in which we live, any label that would reclassify fly ash as 

hazardous creates significant issues. Specifiers will refuse to use it and suppliers will refuse to supply it 

due to the hazardous designation and what would be likely to happen in the courts. The change will have 

unintended consequences, one of which will be a significant decrease in the use of fly ash in concrete.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0127-1

Organization1:CCP Utilization

Commenter1:Keith Bargaheiser

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

My issues today address the stigma associated with the proposed rule and a suggestion for compromise. I 
598

was involved in a therapeutic riding program in Ohio which aided disabled children, and on rainy damp 

days these children were unable to go riding due to the fact that it was dangerous. Coal combustion 

products, bottom ash, was looked at being utilized for the project, and at the very end the owners decided 

to not do this due to the fact of what happened in the TVA, and all the conversations about toxicity and 

being a hazardous material, they felt the liability was too high. We showed them that there's many 

materials that we utilize today such as shampoos, foods, animal foods, bibs for our children and fillings in 

our teeth that have more toxic chemicals than what bottom ash had, but it didn't matter.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0033-2

Organization1:Southern Concrete Materials

Commenter1:Jane Arnold

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

If fly ash is labeled as a hazardous material, then Southern Concrete material would discontinue its use. 

The increased costs in handling the material and the potential perceived liability that we could be facing 

would render the use of fly ash economically unfeasible. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0119-2

Organization1:SCANA Corporation

Commenter1:Tom Effinger

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Regulating CCRs as hazardous would also raise unwarranted liability concerns related to materials that 

have been incorporated into commercial and residential products such as wallboard. Who's going to want 

to fill their new house with wallboard if it contains a material that the EPA is regulating as hazardous 

waste?

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0041-3

Organization1:Texas Concrete Pipe Association

Commenter1:Bob Folser

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The present or future use of fly ash, if classified as a hazardous waste, could expose federal, state and 

local agencies, as well as the concrete industry, to significant legal liabilities if linked to safety exposures. 

In fact, because of the potential exposure and liability issues, fly ash generators may cease the beneficial 

reuse of fly ash and choose to landfill all that is generated.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0065-2

Organization1:Texas Coal Ash Utilization Group

Commenter1:Mike Silvertooth
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Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

In regards to liability, utilities are highly considering not allowing CCPs to leave the site for fear of future 

litigation. The same concern is being reserved -- observed from end users, as well. The potential of future 

litigation is too much at risk for some CCP -- CCP producers and utilizations.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0069-4

Organization1:PMI Ash Technologies

Commenter1:Kyle Crake

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

The CCR recycling industry has noted to the EPA that the Subtitle C classification will produce a stigma 

that will negatively impact the nation's best recycling story. The industry has supplied specific 

advertisements, bidding packages, delayed or deferred projects showing that the stigma does exist. EPA 

continues to ask for evidence, while all the same ignoring the evidence given. 

PMI has seen the impact of the stigma. PMI has actively pursued several potential beneficiation projects. 

We have heard from prospective customers that they will not consider a project until a final rule is out 

and it is non-hazardous, due to the potential tort liability that could be associated with the sale of fly ash 

under Subtitle C. We have also been talking with companies about raising capital for projects. While the 

companies like our CCP recycling business, they are not willing to invest with the exposure to a Subtitle 

C classification. 

EPA's own scenarios that incorporate health, environmental, and commercial factors show that the 

downside in both recycled volume and economic value is significantly greater than the upside. The upside 

scenario is an 11 percent gain in sales for $84 billion in value. The stigma scenario is an 18 percent loss in 

sales for a $233 billion decrease in economic value. 

In conclusion, the cost of Subtitle C implementation, plus the associated loss of recycling, is too great a 

tradeoff for EPA enforcement authority, especially when it can be obtained on a legislative basis.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0097-4

Organization1:NRG Energy

Commenter1:Jeffrey Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 5.5.5.1

Comment Excerpt Text:

Our coal ash users and recyclers have indicated that any hazardous waste label on coal ash could end 

beneficial use practices due to -- to liability and marketing concerns. This would result in greater volumes 

of coal ash generated at the NRG plants having to be managed and unnecessarily fill up landfill space 

rather than sold for beneficial use. In addition, the cement industry will have to make up for the loss of 

recycled coal ash resulting in a net increase of carbon dioxide emissions.

Response: The Agency acknowledges and appreciates the comment
600

Comment Number: TRANS-DEN-0003-1

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

In announcing the agency's proposed coal ash disposal rule on May 4, EPA administrator Lisa Jackson 

said, "The time has come for common-sense national protections to ensure the safe disposal of coal ash." 

Citizens for Recycling First agrees with the administrator. 

Common sense tells us that utilities will be reluctant to allow a material classified as hazardous waste on 

their own property to be distributed for recycling at literally thousands of locations all around the 

community. Common sense tells us that architects and engineers who are sworn to put human health and 

safety first will be reluctant to require the use of material that is classified as hazardous waste in another 

location. 

Common sense tells us that users of coal ash will be reluctant to take on the potential liabilities and 

additional operational requirements that may come with using material that is classified as hazardous 

waste in another location. 

And finally, common sense tells that everyday citizens will be greatly alarmed if they find out that a 

building material used in their homes, school, office, and roadways is classified as a hazardous waste in 

another location. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0010-1

Organization1:McDonald Farms Enterprises

Commenter1:David Goss

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Established in 1966, we provide a wide variety of transportation, resource recovery, waste and industrial 

processing services including ash management and beneficial-use projects for several local utilities. We're 

very concerned that changing the classification of coal ash from nonhazardous to a special waste under 

Subtitle C could have many costly impacts on our business. 

Recently during negotiations with one utility customer they proposed a new requirement for us to carry 

environmental impairment liability or contractors pollution liability insurance for every beneficial-use 

project that we wanted to do. They're asking for coverage of up to $6 million in order to protect them. 

Furthermore, they're asking for indemnification for any beneficial-use project that releases them from any 

and all claims forever whether known or unknown from the present to any date in the future. 

These new requirements will more than triple our insurance costs and hold us liable for any considerable 

claim in the future because they believe the EPA will classify coal ash as a hazardous material. Since 

beneficial use is extremely sensitive to costs, these new requirements will eliminate our ability to compete 

against commercial products or native materials, and we will be forced to cease any beneficial-use 

projects. 

Our attorneys urged us not to accept these new requirements -- these proposed conditions. However, we 

still see great benefit in being able to use or recycle coal ash into such applications as waste stabilization, 

flowable flow mixes, and road construction. It's much better to keep the ash out of landfills and instead 

place it where it can safely perform to meet engineered technical requirements. 

With more than 40 years of experience, we've never seen any evidence of adverse environmental impact 

where we have used coal ash in railroad embankments, structural fills, flowable fills, or waste and soil
601

stabilization. 

For every project, we characterize the native soils and determine local water conditions before planning 

placement of ash. We sample and analyze the ash we use to be sure there's no risk to surrounding land or 

community. We find that coal ash can be used safely presenting no more risk to the environment than 

native soils. 

In fact, most coal ash in Colorado has lower levels of heavy metals than do the native soils. In our very 

dry climate, managing storm water and snow run-on and runoff is relatively easy. However, if classified 

as a hazardous material, we will no longer use coal ash because of the potential risks that some of our 

clients feel we need to ensure or indemnify.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0022-3

Organization1:Intermountain Power Service Corporation

Commenter1:Jon Finlinson

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

We firmly believe that a Subtitle C designation will significantly reduce or halt the sale of coal 

combustion byproducts as alternatives to natural resources. Having the stigma of hazardous will catch the 

attention of toxic tort attorneys. In this litigious society, any playground, school, or other arena where 

children are present will be blamed for any ill that may arise if that facility was built with products 

containing CCR. Liability of this magnitude can far outweigh any benefit of reuse.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0023-2

Organization1:Flashfill Services

Commenter1:Doug Hernandez

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 9.2.2.2

Comment Excerpt Text:

If coal fly ash is classified as a special waste requiring disposal as a hazardous waste, I anticipate that due 

to the liability associated with such classification, it would force our suppliers and customers to 

discontinue our business relationship. 

I also anticipate that if we were able to persuade our industry to continue the usage of our product, we 

would no longer be able to provide it economically due to the significant cost associated with obtaining 

environment liability insurance. 

The stigma associated with such a classification would escalate the cost of doing business and could send 

all our potential customers in other directions. 

I truly appreciate your objective to protect the welfare of the public, and I do have financial reasons for 

my concerns. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0028-2

Organization1:Great River Energy

Commenter1:John Weeda
602

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

GRE believes that regulation of CCRs under Subtitle C would destroy the progress that's been made in 

making CCS ash a respected commodity in the marketplace. Any indication that fly ash is a hazardous 

waste under any circumstances would bring a stigma of liability concerns that most users would avoid and 

thus eliminate the use of CCS ash. 

In addition, there are liabilities associated with a product that is deemed a hazardous waste when 

disposed. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0036-2

Organization1:

Commenter1:Ed Bush

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

If EPA decides to regulate fly ash as a hazardous material, I haven't found a single construction specifier 

who will be specifying concrete that contains fly ash simply because of liability reasons. Even if EPA 

says that concrete is a beneficial use, if they're also saying that it's hazardous material, construction 

specifiers aren't willing to take on that liability. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0067-2

Organization1:Pavestone Company

Commenter1:Michael Midyett

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

While we understand the beneficial-use designation of the product as these are not considered a hazardous 

waste product, we're not certain our customers are actually -- their customers understand the difference. 

The moment that the CCP is designated as a hazardous waste is the moment the litigation will occur. With 

litigation comes the inevitable indemnification clauses and corresponding insurance costs. 

As is typical, these costs will be transferred to our consumers and eventually to the customers. So we can 

foresee future project specifications allowing CCP provided we provide the -- or we the manufacturer 

assume all liability. 

Or the other option is we choose not to use the designated waste product or what -- the product that has 

been designated as a waste product despite the benefits, and instead we order an additional 45,000 tons of 

cement product with the corresponding greenhouse gases associated with the manufacturing of the 

product. 

Cement is almost 15 to -- can be up to 15 times the cost of what our fly ash is. We'll share that concrete 

increased cost with the consumer. 

So in conclusion, we have an entire concrete products industry currently incorporating coal combustion 

products. It is a low-cost, high-benefit material, but it's not integral to manufacture a high quality product. 
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The designation of any part of CCP as a hazardous waste will only increase the probability of waste piles 

and slowly eliminate a recycling avenue that has worked successfully for years.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0073-2

Organization1:Novinda Corp.

Commenter1:Bill Byers

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

The small increase in raw material costs from using alternative materials will outweigh the peace of mind 

from avoidance of litigation from eliminating that liability.

The beneficial use of fly ash supports a multi-billion-dollar economy of small businesses, including 

Novinda, fly ash marketers, and lightweight brick manufacturers among others. That value, however, 

pales in comparison to the total return of the utility industry. The value represents less than one percent of 

the total revenues from the electric power utilities. 

If CCRs are designated a hazardous waste, the power utilities are more likely to landfill the CCRs than to 

place them into a potentially litigious marketplace. 

Regulating fly ash under Subtitle D addresses EPA's concerns and satisfies the agency's goals for CCRs 

by promoting beneficial use and increasing the economic incentives for industry to avoid landfilling by 

increasing structural requirements for landfills and impoundments. 

I strongly urge you to go with the Subtitle D route. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0106-2

Organization1:Navajo FlexCrete

Commenter1:Jonathan Robertson

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

The proposed regulations involving labeling fly ash as a hazardous waste with special handling 

requirements will certainly place a tremendous barrier on our ability to successfully market our product. 

Although the Environmental Protection Agency supports the legitimate beneficial use of coal combustion 

residuals, our product, along with the other environmental sound beneficial-use products, will clearly 

suffer from the stigma attached to labeling fly ash as a hazardous waste. 

Since the announcement of the EPA proposed regulations, we already have seen an impact of the 

proposed regulations with potential clients such as architects, engineers, and homeowners who do not 

want to specify our product on their projects for fear of the liability associated with the hazardous waste 

label. 

We urge the EPA's panel oversight -- overseeing the public hearings for coal ash to greatly consider the 

impacts to the small businesses and economies that have been created by the beneficial-use categories of 

the fly ash. Labeling fly ash as hazardous waste will certainly close the doors of this manufacturer of 

green building products. 

Response: The Agency acknowledges and appreciates the comment
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Comment Number: TRANS-KNX-0031-2

Organization1:SEFA Group

Commenter1:Jimmy Knowles

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

So they'll take coal ash, in the example one company prominent in the industry right now from the United 

Kingdom, they're processing the ash over in the United Kingdom and then importing it to the United 

States for these markets. And they recognize that the companies that have traditionally done this type of 

thing in the United States are backing off. They recognize that Subtitle C is going to hurt their opportunity 

to continue being competitive in the marketplace, mainly not due to stigma, because most people don't 

even know that coal ash is being in these products already, but because of the legal liability associated 

with it. 

Funding for that research came from U.S. Taxpayers, and it does -- also, I would mention that our 

company, our in-house R & D has atrophied to practically non-existent. But thirdly, I'd like to mention 

that some interesting research at Pacific Northwest Laboratories, which our company and another other 

U.S. companies co- funded along with DOE money and other federal money that went into the research, 

but basically what they came up with is taking ash and they got -- through carbothermal nitridation of the 

fly ash, they were able to make a slow-release fertilizer that is very environmentally-friendly relative to 

the other -- more -- more environmentally-friendly than the other fertilizers that are being used. 

Basically, the bottom line is American companies are not going to do that. However, other companies, 

Australia specifically, is trying to take that research and continue funding it with federal money from the 

United States at Pacific Northwest Laboratories to –

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0039-3

Organization1:SEFA Group

Commenter1:Burt Nunn

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

Most of the concrete produced will not have fly ash as a constituent if the material is designated as 

hazardous for disposal, even if the EPA says that beneficial use is exempt from that designation. Concrete 

producers say that the potential for lawsuits and negative press is not worth the risk of using fly ash in 

their products. Their legal counsel and insurance company have already advised against using fly ash 

because of the negative stigma and potential for litigation.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0049-1

Organization1:Blalock Ready Mix

Commenter1:Dennie Underwood

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 9.5.2

Comment Excerpt Text:

Blalock has provided approximately 225,000 cubic yards annually to the public and private sectors in our 
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service area. Of those 225,000 yards, 85% of it used fly ash as a supplemental material. Our concern is 

that if EPA decides to designate fly ash under Subtitle C of the Resource Conservation Recovery Act, it 

will hinder not -- it will hinder, if not eliminate the use of fly ash in concrete all together.

If fly ash is classified under Subtitle C, we would be forced to eliminate it from our concrete production. 

This would be due to potential litigation for using a, quote, "hazardous waste product" in our concrete. 

The designers that we use would not design concrete with fly ash because of their liability that they would 

incur if they specify. It also causes us to reclassify all our drivers if we use fly ash because they'd be 

potentially hauling a hazardous material. 

If we have to stop using fly ash as a supplemental product, then our costs would -- would increase by 

approximately half a million dollars. This 15 to 20% increase would pass on to the consumer, further 

decreasing the demand of our product due to higher costs. The higher cost would also reduce the available 

funds for road and infrastructure maintenance, loss of jobs. 

The stigma of a hazardous waste would effectively end the use of fly ash as a supplemental product in 

concrete. Better suggestion would be along the lines of -- of the Congressional Research Service has 

proposed a new Subtitle K, the federal waste law, which would give the EPA enforcement authority over 

coal waste rules without declaring the hazardous waste and to regulate the use -- reuse of coal ash.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0057-1

Organization1:Sphere One

Commenter1:Mark Bonne

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

If -- if the EPA classifies CCRs as -- as a Subtitle C hazardous waste, the majority of our customers will 

discontinue the use of these materials. 

The -- the waste that -- special waste designation is poorly written, and they have -- and they have the 

following concerns: If CCRs are classified as hazardous waste under Subtitle C, the additional cost in 

time and money to manage these materials will make them cost prohibitive to our customers. Under the 

EPA's proposal, Subtitle C waste is -- is regulated by a set of standards. There are standards for transport, 

standards for generation, standards for permitting, standards for treatment, storage and disposal. 

In Subtitle C regulations, the use of -- of wordings to classify materials as hazardous -- hazardous like 

materials derived from or mixtures leaving open a future date any products that contain CCRs to be 

classified as hazardous, no manager would expose their -- its company to the potential future liability. Our 

customers are concerned that mixtures spilled on the floor of their -- of their plants, if swept up, thrown in 

a dumpster, classify the entire dumpster as a hazardous material. 

Subtitle C is a very -- is a far better option to properly manage the disposal of these useful byproducts if 

they cannot be reused or recycled. Without hazard -- the hazardous waste stigma attached to the materials 

by Subtitle C, com -- companies like Sphere One and our customers can find beneficial reuses for CCRs. 

If the tag "hazardous waste" is attached, the products then, most likely, will be dropped from formulation. 

I believe recycling, reusing CCRs is a much better option than landfilling them.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0060-2

Organization1:Trans Ash

Commenter1:Bruce Kazich
606

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

The EPA claims a Subtitle C designation will actually increase the beneficial use of CCPs. This 

contention is certainly not supported by our customers. They have legitimate legal liability concerns. 

They've clearly stated they will stop using CCPs if they are classified in any way as a Subtitle C waste. 

In our litigious society, they're simply not willing to take the risk. Therefore, the CCPs that have been 

safely recycled for decades will now be landfilled, creating higher energy costs, higher costs for utilities, 

and therefore, higher energy costs for all citizens. Users will replace CCPs with naturally mined or 

manufactured materials utilizing more energy, including fossil fuels, natural gas and electricity further 

increasing our carbon footprint.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0073-1

Organization1:Full Circle Solutions

Commenter1:Bob Waldrop

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

My comments today concern the issue of stigma. The stigma associated with the regulation of CCPs as 

hazardous waste is real and here with us today. 

First, our clients that produce masonry block have stated that they will no longer use bottom ash if it 

becomes labeled as hazardous. They are already seeing competitors advertise that they do not use 

hazardous materials in their block. 

Our clients are concerned that any lawsuit will turn into a publical -- public spectacle. The mere mention 

of "hazardous materials" will force them to defend using what has been a safe and effective material for 

years. No one can possibly think that attorneys will not attack block manufacturers that use what has been 

labeled "hazardous." 

Second, we have lost two major construction projects due to a hazardous label. The first was a 

development in eastern Virginia that would have enhanced property values and the tax base of a small 

rural county. County officials stated that they liked the project and want to approve without the use of 

CCPs; however, if CCPs were used, they would deny approval because they did not want to get involved 

with a hazardous project. 

The second project, an industrial park, also in eastern Virginia, would have provided land ready for an 

industry to build upon, even though we proved the environmental safety of a properly- constructed 

geotechnical fill, the owners backed away because, in their words, EPA thinks this may be hazardous. 

More recently, standard ways of conducting any business have changed for the CCP industry. This is the 

result of the negative stigma from EPA's proposal to regulate CCPs as a hazardous waste. 

One of our business loans was up for renewal, and the loan was collateralized with the industrial and 

commercial properties developed with CCPs. As part of the refinance, the bank ordered Phase I 

Environmental Assessments. These properties have had several Phase I assessments performed in the 

past. They have always been clean. 

However, this time, due to the presence of CCPs, the environmental consultant directed the bank to have a 

Phase II study done. When challenged with the facts, including years of groundwater and surface water 

monitoring data which proved these sites are clean, the con -- consultant could only say that since EPA is 

considering these -- regulating the CCPs as hazardous, then it must be bad. 
607

The bank has decided they will not renew the loan. If they call that loan, good people are going to lose 

their jobs. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0098-1

Organization1:SEFA Group

Commenter1:Mark Casey

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

My concern is that if E -- if EPA decides to designated fly ash under Subtitle C for the Resource 

Conservation Recovery Act, it will hinder, if not eliminate, the use of fly ash in concrete altogether. My 

customers, the ready mix concrete producers, have indicated to me that if fly ash is listed under the haz --

under the hazardous waste Subtitle C of -- of the RCRA, they will be forced to eliminate it from their 

concrete mix designs altogether for fear of litigation.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0098-2

Organization1:SEFA Group

Commenter1:Mark Casey

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

I understand that the EPA has clearly stated that it does not want to disrupt current recycling efforts, and 

that they believe that designating coal combustion products as a special waste under the Subtitle C 

category will actually increase CT -- CCPs use. If the EPA's assumption is correct, then my company and 

I may benefit financially. So then why am I here today arguing against my own personal financial 

interests? Obviously, I disagree with EPA's assumption. 

Under EPA's special waste proposal, two trucks leave a power plant loaded with coal combustion 

products. One truck will turn left destined for disposal as hazardous waste, while, at the same time, the 

second truck with the same exact material on board will turn right and travel to my customer's plant with 

absolutely no restrictions outside those imposed by normal DOT. It is very difficult business. It is difficult 

for business owners and their attorneys to reconcile this concept. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0116-2

Organization1:Kentucky Chamber of Commerce

Commenter1:Chad Harpole

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

We strongly feel, under Subtitle C, could end the beneficial use of recycling coal ash into products like 

cement and drywall. Regulation under Subtitle C will harm one of best and oldest recycling industries, 

and drive up costs for the construction and home-building industries, industries that are already struggling 

in the current economic climate. 
608

We also are concerned with the amount of potential litigation that could be created due to products 

manufactured or constructed in the past if coal ash is retroactively ruled as Class C hazardous waste.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0146-1

Organization1:

Commenter1:Ben Franklin

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

To be frank, I, too, am worried about the tons of ash stored on these plant sites, but I am also worried 

greatly about the EPA ruling in favor of Subtitle C. Why? Because if the EPA rules in favor of Subtitle C, 

the ruling will inadvertently cause more ash to be stored on site. The reason is simple. The passing of 

Subtitle C will create liability and stigma for the industry; it creates liability for the power plant that we 

contract with to market these materials; and it creates liability for companies such as mine when we sell 

the materials to the end-user; Ready Mix concrete, shingle, tile companies, et cetera. 

I've personally spoken with a number of these companies and they all tell me they will not continue to use 

these CCRs in production of their products if we go with Subtitle C. Further, I've been told by a large 

majority of the power companies that they will not allow companies such as mine to market the ash. So 

that in and of itself creates more and larger ponds of CCRs in the future, which is counterintuitive to what 

both my industry, the EPA, and the citizens of this country are trying to accomplish.

Let's be clear, even though we all love wind, solar and hydroelectricity, coal-fired power -- power plants 

are not going away for another 20 years in my opinion, which means that there will be CCRs left over. 

We do not have the land to bury it all. And when faced with liability, the EPA cannot make the building 

industry use the CCRs, and the EPA cannot make the power companies sell these CCRs. 

For proof of stigma, I have attached a copy of an invoice from a company that produces concrete block 

and is warranting their block to be free of coal ash, as coal ash is currently under investigation by the EPA 

to be classified as a hazardous waste, as they've placed on their invoice. And if that's not stigma, I don't 

Response: The Agency acknowledges and appreciates the comment know what is. 

Comment Number: TRANS-KNX-0195-2

Organization1:SEFA Group

Commenter1:John Castleman

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

Of critical concern is that listing and regulating fly ash under Subtitle C will reduce the amount of fly ash 

that can be beneficially used. If the EPA lists coal fly ash as a "special waste" under Subtitle C, then it 

will be considered a hazardous waste by the general public. The potential for litigation is enormous. The 

failure of any concrete structure will be blamed on the hazardous waste used in the construction, even 

though the failure was not do to the fly ash in the concrete. Just the threat of such litigation will pres --

prevent any fly ash use on an industrial project. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0007-1

Organization1:Gibbco, Inc.
609

Commenter1:Bruce Kazich

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

And yes, the stigma is real. Our customers have serious, legal liability concerns. We speak with them on a 

weekly basis and they've clearly stated they will stop the use of boiler slag should CCPs be classified, in 

any way, as a subtitle C waste. In our litigious society, they are simply not willing to take the risk, despite 

having successfully and safely use boiler slag for decades. 

Additionally, I have provided a copy of my written testimony of an Internet advertising by a supplier of 

an alternative material. Their website features videos and links that clearly attack boiler slag and CCPs. 

Many of the links have, frankly, nothing to do with either boiler slag or blasting abrasives. This is truly 

fear-based advertising, attempting to further stigmatize the beneficial use of CCPs.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0059-2

Organization1:Pearce Ready Mix Concrete Company

Commenter1:Brian Harper

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

I am concerned about the negative impacts that this public debate may have on the perception of using of 

fly ash in any form. I urge you to make decisions concerning whether to label fly ash as a hazardous 

material based on sound, scientific data and discussion and not on emotion. 

Labeling fly ash as a hazardous material will stop most of the use of this product in any type of capacity 

due to perceived liability issues, and will currently add an additional 30 million tons of fly ash to existing 

or new landfills, thus compounding problems with storage that already exist. 

I support the protection of human health and the environment. I also sup -- support responsible recycling 

of fly ash without creating undue burdens or concerns in the user marketplace. If the EPA designates fly 

ash as a special waste or a hazardous material under Subsitle -- Subtitle C, this would bring an uncertainty 

or stigma to the product that will be detrimental to any and all recycling efforts.

My company has used fly ash in ready mix concrete for over 25 years. But if it were re-labeled as a 

hazardous material, we would be forced to no longer use this time-proven beneficial material ingredient 

due to a simple change of wording. Coal fly ash should not be labeled hazardous if it can be controlled by 

non-hazardous regulations. Thank you for allowing me to express my opinion.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0110-1

Organization1:University of Kentucky Center for Applied Energy Research

Commenter1:Tom Robl

Commenter Type: Academia

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

The US EPA, however, claims that classification of coal ash as a -- a C material under the dual system of 

management will actually increase the beneficial reuse of coal combustion products. This is simply not 
610

borne out by experience with other materials, nor from the response from the producers themselves, other 

consumers, or regulators. To quote Mr. Paul Thompson, vice president for Energy Services of E.On-US, 

who -- who stated if ash is -- who states, "If ash is classified as a hazardous material, I would consider it 

irresponsible on our part to allow it be disposed of in any other way than in a properly certified hazardous 

material repository." 

Of -- of -- the agency has been warned on the consumer side by expert organizations, such as ASTM, 

ACI, and the National Ready Mix Association, that prohibitions, the utilizations, will occur as long-term 

liability uncertainties, insurance, and handling restrictions become important.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0012-2

Organization1:Separation Technologies LLC

Commenter1:David Brader

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

We must look at facts, facts such as at Separation Technologies, LLC, we have over 10 years of operation 

with scores of employees working day in and day out with fly ash without a lost time accident or 

incidence of industrial disease related to exposure to fly ash. We must be careful that in dealing with 

isolated incidents of specific bad apples, we do not discard the entire bushel, or in this case potentially cut 

down the entire orchard. 

Stigma, is not my concern, it goes much deeper. My 5th grade son asked me during preparation for this 

speech why fly ash was going to be labeled hazardous. 

I explained that there is discussion of labeling it hazardous if it is for landfill at point of generation but not 

for beneficial use. He looked at me oddly and asked point blank, but if its hazardous, its hazardous, I 

mean, it's something about that material that makes it hazardous, right? How can it be hazardous and not 

hazardous at the same time? And there he hit the nail on the head. 

This cognitive dissonance will lead to scores of lawsuits seeking clarification, a pull back of generators 

who would rather not deal with potential issues and a disappearing customer base who will be concerned 

they can't sell their products if they have fly ash in it. 

The impact will be real, the orchard cut down. What does it look like when this happens? Impacts to the 

environment from an ST LLC perspective alone would be the loss of over 600K tons of CO2 emissions 

YTD. Additionally we will experience on a national level greatly increased landfill usage, increased CO2 

emissions, scores of families unemployed at risk of becoming 99'ers in this economy, and increased 

power rates which will disproportionately hit the poor. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0025-2

Organization1:Alcoa

Commenter1:Tony Schoedel

Commenter Type: Other Company

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

Two, the use of CCRs and the beneficial uses, that you've heard many times here in the previous public 

comments, will be harmed by the designation, we believe, under Subtitle C designation. Already in public 

comments as I mentioned, calling for further regulation of CCRs usually capsulated, capsulated forms at 
611

the end of life. The potential for litigation will harm the use of these materials and, as you've heard also, 

applying this stigma to the long use material will have the impact of stifling this use and will have more 

of an impact to the landfills not less and just exacerbating the existing problems.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0031-1

Organization1:Separation Technologies

Commenter1:Thomas Collins

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.1.1 10.4.3

Comment Excerpt Text:

Separation Technologies process and markets fly ash are up in the Northeast in the Eastern United State 

and is utilized by the concrete industry. Because of ST's proprietary technology, this fly ash would 

previously be bound for a landfill and now it can be used and recycled for concrete products.

This year, and you've heard this before, 15 million tons of fly ash will be recycled in concrete. I visit with 

concrete producers each and every day and a vast majority of them fear the negative impact that Subtitle 

C would have on their industry, specifically to the hazardous designation. Even with the beneficial use 

included, they still fear that. 

As a gentleman said before, let me assure the negative stigma surrounding or hazardous designation of 

Subtitle C is real. Many of my producers say they will stop using it just on the liability standpoint. I really 

feel you should consider that for finalizing the regulations. 

Secondly, concrete producers utilize fly ash for a number of reasons, specifically, to reduce cost and to 

improve overall performance. Also, fly ash is a vital construction material. It will not only increase 

construction costs, but will impact the durability of our infrastructure. Thank you and please know that I 

am opposed to Subtitle C. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0048-1

Organization1:Separation Technologies

Commenter1:Tom Cerullo

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1 10.4.3

Comment Excerpt Text:

Subtitle C regulations, even with the exemption for beneficial use, will create two conditions that will 

have a deep, negative impact on the recycling industry. 

One, many power companies will not want to put ash into beneficial uses because they cannot and will 

not tolerate the liability of having ash make a left turn out of their property and be designated a hazardous 

material, while that same hazardous material is making a right turn out of their property is being placed in 

concrete sidewalks, home basements and driveways. The risk at this point is too close for comfort, and 

power companies will take the safe route and dispose of all their ash. 

Two, users of concrete with recycled fly ash will be unwilling to draw a distinction between the 

nonhazardous material that they are receiving and the exact same material that is going to the hazardous 

landfill. In the consumer's mind, it's all hazardous and they will not buy the fly ash product. 

My company works with power companies every day. We sell recycled fly ash to concrete producers 

every day. We know this industry. We want to grow our business, but Subtitle C regulations as proposed 

by EPA will create a stigma, profoundly damage the use of fly ash in concrete and drive power companies 

away from recycling. I urge you to reject Subtitle C and give every consideration to Subtitle D.
612

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0085-2

Organization1:Separation Technologies

Commenter1:Jim Bittner

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

In 2008, ST was planning to invest another 35 to 40 million dollars in ash recycling plants creating 

another 25 to 30 well-paying jobs. However, since March 2009 when the EPA reopened the issue of 

regulating ash as a hazardous waste, my company and our utility partners have stopped all investments in 

ash recycling. 

Our utility partners will not risk the potential liabilities of their ash being used in concrete if ash is 

regulated under the Subtitle C hazardous option. 

Our concrete producer customers are becoming wary of ash because our competitors who are selling 

imported slag are warning of the potential liabilities associated with using ash. Thus, this proposed 

regulation has already become a job killer at a time when the US economy is in dire need of good jobs.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0086-1

Organization1:

Commenter1:Stephen Gasiorowski

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

The proposed regulation of fly ash and other coal combustion residues under RCRA Subtitle C seriously 

jeopardizes this success. While the proposed regulations exempt beneficially used fly ash from Subtitle C 

regulation, it will result in one pile of ash will require handling as hazardous while another pile from the 

same source will not. Faced with this apparent self-contradictory designation, most producers, specifiers 

and users of fly ash, will choose to stop dealing with beneficial use of the material to avoid any potential 

liability. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0091-1

Organization1:Separation Technologies

Commenter1:Jonathan Cahill

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

The perception and stigma that would follow this labeling would likely have far reaching effects on the 

use of fly ash in concrete. The average person won't take the time to understand how fly ash could be 

hazardous waste if it is away in a landfill some place, but it is perfectly safe when it is made in concrete in 

the basement where their children play. Many architects and builders do not want to risk to perceive the 

potential liability of specifying fly ash into the concrete. The EPA has long held based on extensive 
613

testing, the safest place for fly ash is in concrete, so the travesty for fly ash to cease to be used in that 

application. All of the regulations, which are so needed, can be achieved through RCRA Subtitle D 

without the great negative impact on our environment that would come through Subtitle C classification. 

My job is a source of great pride to me because of the impact I can have on the environment. I ask that in 

order to ensure the positive environmental impact of fly ash will continue, I ask that you decide not to 

regulate fly ash under Subtitle C.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0092-2

Organization1:Separation Technologies

Commenter1:Kyle Flynn

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Unfortunately, EPA's proposed Subtitle C hazardous waste designation would hamper efforts to 

sustainable recycle fly ash into concrete. Utility companies, fearful of future litigation, will not allow 

anything bearing the title of hazardous waste to be moved off the facility for beneficial use.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0110-4

Organization1:Consol Energy

Commenter1:Steven Winberg

Commenter Type: Other Company

Classification: Substantive

Other Sections: 10.1.1

Comment Excerpt Text:

Our fourth and final concern relates to the 44 percent of CCRs recycled into beneficial uses including 

road construction material, replacement for Portland cement and construction grade wallboard. These 

beneficial use industries employ about 4,000 people. Also, it's worth noting that for every ton of Portland

cement avoided by using CCR, one ton of CO2 is also avoided. If CCRs become regulated as hazardous 

waste under RCRA Subtitle C, even if CCRs for beneficial use are excluded, the use of CCRs will drop 

dramatically because of the long-term potential liability. The consequence of this will include loss of 

employment, increased cost of electricity due to higher disposal costs, more hazardous waste site 

development and an overall greater drain on natural resources needed to replace these CCRs.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0111-1

Organization1:Pennsylvania Aggregates and Concrete Association

Commenter1:Bruce Cody

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 9.3.7

Comment Excerpt Text:

We oppose Subtitle C designation for the following reasons: An increase of production costs and the cost 

of construction. Recently, our governor tried the common law asking for our support for additional 

transportation funding for our failing infrastructure. Adding additional costs to the construction projects is 

not what was asked of us. We need to keep the cost as low as possible to replace the hundreds of the 

structurally sufficient roads and bridges across the state. The increase on potential liability for concrete 
614

producers. We have a concern there will only be litigation targeting existing structures built with fly ash.

Potentially stricter state laws. We feel this will snowball into more state laws, such as the one proposed in 

Maryland regarding the disposal of any product containing fly ash must be done in a special facility. Our 

industry has done its part to recycle and reuse our product. Our producers have gone to great expense 

installing recycling equipment in their facilities. This could be all for nothing should Subtitle C lead into 

additional laws regulating the disposal of products containing fly ash.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0115-2

Organization1:American Concrete Pavement Association

Commenter1:Mark Snyder

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

The American Concrete Pavement Association is greatly concerned about a potential EPA reclassification 

of fly ash as a hazardous waste under RCRA Subtitle C. We believe that such reclassification would have 

significant unintended negative consequences -- even if exclusions were provided for certain uses. The 

stigma and potential legal exposure of incorporating a hazardous waste into concrete would have a 

crippling effect on its use, and might even make problematic the future disposal and repair of existing 

concrete containing fly ash. This reclassification has the potential to undo decades of advancement in 

pavement performance and would also result in a significant decrease in the sustainability of concrete 

materials for all applications, pavements, buildings, foundations, et cetera.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0117-2

Organization1:Ohio Ready Mixed Concrete Association

Commenter1:Gregory Colvin

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

The problem is that although it may well be exempted from regulation, it would still have the negative 

stigma of a hazardous waste. 

In discussing this issue with our membership, I found that most members would refrain from using fly ash 

in concrete, from fear of the liability factor of using a hazardous material in the production of their 

products. They do not agree with the EPA's assertion that the exemption would provide all the protection 

needed. Lawyers would have a field day with the idea of concrete producers using hazardous materials to 

produce concrete. Competitors of the concrete industry would also use the stigma against our industry.

Response: The Agency acknowledges and appreciates the comment

Section 10.4.7 - Other stigma and beneficial use comments

Total Number of Submissions: 50

Total Number of Comments: 72

Comment Number: TRANS-ARL-0090-1

Organization1:

Commenter1:Richard Fortuna

Commenter Type: Private Citizen

Classification: Substantive
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Other Sections: 10.4.1

Comment Excerpt Text:

There's three points I'd like to make this afternoon. One, recycling is alive and thriving under RCRA. 

There are many thriving recycling markets under RCRA for materials which have been designated as 

hazardous waste. In addition, there are several consumer-based hazardous wastes for which recycling 

markets are doing extremely well. This will be expanded upon in the report that'll be submitted later. 

Number two, as the level of regulatory control increases, so does the level of recycling. One example of 

this is KO61, electric arc furnace dust. I conducted a study for EPA back in 1994 which showed several 

interesting things. One is prior to RCRA regulation, relatively little EAF dust was recycled. Once the regs 

in place were in 1980 and the land disposal bans took effect in 1986 through 1990, the level of EAF dust 

recycling accelerated as did the diversity of recycling technologies available. Now, confirmation of this 

trend came later that decade when I conducted a private market study of opportunities for recycling in 

Canada. A survey of those steel industries in Ontario showed little interest -- little to no interest in 

recycling because, as they said, we still have our back 40, why would we want to recycle? 

And number three and finally, claims of stigma are little more than a shtick. For those of you who may 

have forgotten your college Yiddish, a shtick is a contrived and overused bit, and a shtick aptly describes 

what is -- how stigma is being used in the context of this rulemaking. Every potentially regulated recycler 

since 1979 has claimed stigma if you regulate their recycling of their waste. This includes the cement 

industry, the chemical industry, the (inaudible) recycling industry, the fuel blending industry, the oil 

industry, the steel industry, to name but a few. All this will be detailed in the report that'll be submitted 

for this rulemaking. Not once have these claims ever been realized. 

I would also point out that Congress explicitly addressed the competing goals of resource recovery and 

protection of public health and the environment in the 1984 HSWA amendments. In 1984, Congress 

specifically stated with regard to used oil recycling as follows: It was never Congress' intent that 

protection of public health and the environment be subordinated to the continuation of used-oil recycling 

practices. 

And one last detail, which I can finish in the last 30 seconds, stigma is also illegal. Pursuant to a ruling of 

the D.C. Circuit in the used-oil recycling regulation, the Court deemed that if it's not in the statute, you 

can't use it. 

One last point I'll make since I have 15 seconds left is that I think we have to be mindful in this regulation 

that many so-called recycling practices are little more than disposal and drag. That's particularly true for 

the nonencapsulated uses such as land reclamation and agricultural uses

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0124-1

Organization1:

Commenter1:Robert Bergman

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I would like to discuss the assertion made during the August 12th EPA webinar that since the European 

Union and Japan are able to beneficially use 89 to 95 percent of coal combustion materials, that the 

United States would be able to increase beneficial use of coal combustion materials even with the label of 

special waste that is regulated under Subtitle C of RCRA, and that no stigma would be attached causing a 

decrease in the amount of CCRs that can become reused instead of being disposed in Subtitle C landfills. 

Does the EPA realize that in Europe, the 89 percent beneficial use of CCRS is based solely on bituminous 

coal combustion materials reused? The other materials from brown coal, or lignite, are not included in 

their calculations, even though Brown coal is burned 4 times as much as bituminous coal. The American 
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Coal Ash Association represents beneficial use of all combustion materials produced regardless of source, 

of material combusted, or the form the material results in. 

Further analysis of the coal ash utilization charts provided by European Coal Association and Japan Coal 

Energy Association shows that by removing the utilization categories, which would not be covered under 

the Bevill exemption, the amount of beneficial use in Europe would only be 19 percent for encapsulated 

concrete and asphalt products. In Japan it would only be four percent. This reduction in use is due to the 

majority of their materials being used in applications which is not clear if they would be allowed under 

the proposed regulation, including cement production, reclaiming coal mines, and un-encapsulated uses. 

Neither Europe nor Japan is beneficially using coal ash as successfully as the United States in concrete 

and asphalt products. If the U.S. EPA is to take away un-encapsulated uses and list CCRs under Subtitle 

C regulations, the amount of coal ash that will be landfilled will far eclipse any amount that will be 

beneficially used. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0135-1

Organization1:League of Women Voters of Columbia, South Carolina

Commenter1:Suzanne Rhodes

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

And I've heard a lot of information today about leaking leachate, and I'm surprised I haven't heard anyone 

criticize, in harm's way, the data from the Environmental Integrity Project that cited -- I can't remember --

a couple hundred cases of toxic leaks from coal ash plants. Fly ash may be different. I've been 

disappointed with a fact-free kind of a campaign that -- we've talked a lot about jobs and recycling. And 

I've been introduced to stigma. I don't know of John Reaky. I've never heard of N.C. Warran, but I think 

he nailed it. Stigma is not a regulatory issue; it's an educational issue and we can certainly solve it.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0135-2

Organization1:Physicians for Social Responsibility, Colorado Chapter

Commenter1:Roberta Richardson

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

And just one more brief comment. I know that one of the major complaints from the industry who wants 

Subtitle D instead of Subtitle C is that if you designate coal ash as a hazardous waste that that will put a 

stigma on coal ash and interfere with the ability of the industry to sell and to reuse in so-called beneficial 

uses. 

Well, I'd just like you to think about the stigma attached to coal ash when people are sick and dying. That 

seems a little more stigmatizing to me. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0132-2

Organization1:Greenpeace

Commenter1:Robert Gardiner

Commenter Type: Advocacy Group

Classification: Substantive
617

Comment Excerpt Text:

That said, I do want to talk a little bit about the dreaded stigma effect. And it is ultimately a red herring to 

continue to burn coal unabated. The EPA's inspector general faulted the Coal Combustion Products 

Partnership with -- for ethics violations, including not containing general risk information concerning 

large-scale fill operations, including materials giving the appearance that you endorse the commercial 

coal ash products. C2P2 is made up almost entirely of industry and must be dissolved absent any 

meaningful scientific or environmental presence. 

The stigma tech is -- the stigma effect is speculative at best, while the health effects of spreading coal are 

real, verifiable and are being witnessed throughout our country. I've spoken with people around the 

country with arsenic poisoning, cancer and asthma that are directly attributable to coal ash. We need a 

comprehensive reexamination of how these products are being utilized to make sure there are no 

environmental threats to health or welfare of society.

Response: The Agency acknowledges and appreciates the comment

Section 10.5.1 - EPA solicits comment on whether certain uses of CCRs (e.g., unencapsulated uses 

of CCRs) warrant tighter control and why such tighter control is necessary (35148, 35222); EPA 

solicits info/data on new studies/research of risks associated with different uses of CCRs, and 

studies of performance of CCR-derived material (35160)

Total Number of Submissions: 24

Total Number of Comments: 30

Comment Number: TRANS-LVL-0075-1

Organization1:University of Kentucky Center for Applied Energy Research

Commenter1:Jack Groppo

Commenter Type: Academia

Classification: Substantive

Other Sections: 10.1.1

Comment Excerpt Text:

My name's Dr. Jack Groppo, and I'm a senior engineer at the University of Kentucky Center for Applied 

Energy Research in Lexington, Kentucky. I've invested the past 15 years of my career on research and 

development projects focused on increasing the amount of coal combustion byproducts recycled in 

construction and consumer products. 

As a result of these efforts, I'm the proud recipient of two coal combustion partnership achievement 

awards by EPA given for innovation and education. This program was initiated by EPA to recognize 

achievement for advancing the environmental, economic, and performance benefits of reusing and 

recycling coal combustion products. Unfortunately, this program has been suspended pending the 

outcome of the current classification review. 

It's my honest opinion as both a concerned citizen and informed scientist that change in the classification 

of fly ash from non-hazardous -- to hazardous would cause irreparable harm to the years of progress made 

by one of the most successful recycling programs in the world. The loss of utilization markets would be 

devastating to the ash utilization industry, resulting in the loss of hundreds of skilled jobs. 

Additionally, the cost of concrete will undoubtedly rise, and more expensive sources of raw material will 

need to be used since the concrete industry has already stated that it simply will not use a material labeled 

as hazardous. 

Labeling coal combustion products as hazardous would require EPA to reverse not one but two previous 

informed decisions made in 1993 and 2000 after exhaustive technical evaluations. It's all documented, 

that the chemical constituents of coal ash are commonly found in many everyday products and naturally 

occurring soils. As such, reclassification as hazardous would be a decision not based on any cri -- credible 

scientific evidence whatsoever. 

If coal ash was actually hazardous, why would numerous countries throughout Europe and the Middle 
618

East actually import thousands of tons annually? 

Tens of millions of dollars have already been invested in commercial ash beneficiation processes that 

transform ash into a variety of high-quality -- quality recycled products for which markets have already 

been developed. Numerous other process installations are ready to be initiated, but commercial --

commercialization activities have been tabled awaiting a final decision by EPA. 

I urge you to consider the facts before rendering a decision. Coal ash is a useful and necessary material 

that is vital to sustainable construction. And yes, it is -- I certainly use it in my vegetable garden. The 

facts clearly show that coal ash is not hazardous, and changing the classification is not going to change 

the facts. 

Response: The Agency acknowledges and appreciates the comment

Section 10.5.1.1 - Small-scale fill operations (not large-scale fill operations or sand/gravel 

pits/quarries and not mines/minefills)

Total Number of Submissions: 8

Total Number of Comments: 10

Comment Number: TRANS-LVL-0152-2

Organization1:

Commenter1:Steve Wilkins

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I ask the agency not only to adopt Subtitle C but to make it stronger. Any handling of coal combustion 

residuals that risks leaching into groundwater should be prohibited. Use of coal combustion residues for, 

quote, "structural fill" should be forbidden unless composite lining is first put in place. Dumping of coal 

ash into service -- surface and deep mines should, also, be prohibited since control of leachates cannot be 

assured. 

Response: The Agency acknowledges and appreciates the comment

Section 10.5.1.2 - Agricultural applications, including FGD gypsum

Total Number of Submissions: 20

Total Number of Comments: 26

Comment Number: TRANS-DAL-0122-2

Organization1:

Commenter1:Whitney Pearson

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Industry has promoted the idea that dumping fly ash on the ground is beneficial use. They claim that 

farmers can use it as a soil amendment. This is the same industry that determined you can safely dump it 

in a pit in Oologah and didn't even monitor the groundwater for 30 years. 

We've seen that coal ash pollutants can build up in plants and animals and these pollutants can cause 

deformities and mutations and thus possibly enter the human food chain.

Response: The Agency acknowledges and appreciates the comment
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Section 10.5.1.3 - Road embankments

Total Number of Submissions: 8

Total Number of Comments: 11

Comment Number: TRANS-ARL-0032-1

Organization1:

Commenter1:Roger Diedrich

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

I would urge you to regulate coal ash under Subtitle C, that is as a toxic substance, because that will 

provide the framework to cover several important issues. These include adequate requirements for liners, 

groundwater monitoring, testing, and post-closure care. I was engaged when we had the debate over how 

you would regulate incinerator ash. And ultimately, it came down to what a proven testing regime would 

show. In some cases that meant that ash had to be handled as a hazardous material. 

The regulation should be science-based, and I am confident the science will show that the coal ash 

contains many highly toxic substances at levels that are a danger to human health and the environment. 

I'm also concerned about the prospect of defining beneficial uses which the regulations might allow. In 

particular, one use that seems attractive for coal generators is to dispose them in roadbeds. This is a 

sought-after use because, number one, a lot of ash can be disposed that way. And, number two, a part of 

the process, that is the cover, would be covered under another budget. 

Unfortunately, we know that lately many states are broke, and so they cannot maintain roads and perhaps 

in rural areas are removing the paving when it deteriorates. What if such a road had been built with the 

coal ash and now the toxic substances were to disperse into the general environment? 

We have seen too many examples recently where a lax regulatory environment has had serious 

consequences, and so I urge you to be conservative, which means to impose restrictive controls on coal 

ash disposal. 

Response: The Agency acknowledges and appreciates the comment

Section 10.5.1.4 - Abrasives

Total Number of Submissions: 19

Total Number of Comments: 21

Comment Number: TRANS-ARL-0009-4

Organization1:Boiler Slag Consortium

Commenter1:Sean Todd

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Fourth and final point, as a public policy goal, EPA should predictably maintain the maximum beneficial 

reuse of boiler slag. This will require further clarification from EPA with regard to fill and encapsulation 

definitions. The use of boiler slag as an industrial abrasive grit is protective of the health of U.S. workers. 

Naturally occurring abrasives contain crystalline silica, which causes a severely debilitating lung 

condition known as silicosis. Because it is vitrified glassy material, boiler slag is a safer and economical 

alterative to natural abrasives, eliminating worker exposure to crystalline silica and silicosis. For these 

reasons the use of slag as an abrasive should be clarified by EPA as a beneficial use. 

Response: The Agency acknowledges and appreciates the comment
620

Comment Number: TRANS-ARL-0096-1

Organization1:Novetas Solutions

Commenter1:Paul Mellon

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

This is actually the second time I've come before the EPA to discuss the coal combustion waste proposal. 

The first time was in January, where we made a presentation to the EPA in Washington, D.C., where we 

tried to show the EPA that, in fact, it already had the information in its own records that conclusively 

proved that coal slag, when used as an abrasive, does not, in fact, warrant the beneficial-use designation 

and, in fact, has been misused by the coal slag abrasive industry for a number of years. 

Specifically, we showed that when you blast with coal slag abrasives, the glassy matrix, which was 

referred to earlier by Harsco Corporation, is, in fact, shattered and what you get is a toxic dust. That's not 

me saying that; that's the EPA. Because in 1997, the EPA said that Black Beauty -- slags -- had been 

documented to release hazardous airborne pollutants. And so, when those hazardous airborne pollutants 

fall to the ground or on wood or on people, they are, in fact, unencapsulated and they are a danger and a 

threat to the environment and to human health. And, in fact, most of this product, when it is scooped up, 

is, in fact, sent to a landfill anyway. All of these are violations of the past beneficial-use program. 

And so we wholeheartedly supported Director Jackson when she said that they were going to look at 

regulating potentially coal slag or all coal combustion residuals going forward. And the May 4th 

declaration from Director Jackson was I think something that should be applauded because she basically 

came out and said that we're going to finally apply a commonsense approach to the regulation of coal 

combustion waste. Basically, she hit the reset button on this very important problem. 

In June of 2010, the EPA released the proposed regulations. It's a 138-page rule, which we have studied 

intently. And again, I'm happy to see that the EPA, perhaps finally looking at all of the information at 

hand regarding coal slag abrasives, has not, in fact, listed coal slag abrasives as a beneficial-use product in 

the new regulations. And this makes sense. When you look at the information that is out, it is clear that 

this product is, in fact, a toxic product. I find it an interesting fact that on page 35212 the EPA announces 

that the ACAA's definition of "beneficial use" does not align with that of the EPA. 

The bottom line, to be brief here, is that -- just to give you some local flavor -- about three hours south of 

here is the Norfolk Shipyards at the mouth of the Chesapeake Bay. It is estimated that 30,000 to 50,000 

tons of coal slag are used every year in the Norfolk area to the Virginia Beach area. That's a million tons 

of coal slag that is unencapsulated, dumped into regular landfills, and spread throughout that area since 

the 1970s. Hopefully, the EPA's new regulations will give owner-operators and contractors an opportunity 

to make different choices

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0111-1

Organization1:New Age Fastening Systems

Commenter1:Stephen Swartz

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

Approximately six years ago, my company started to explore the uses of recycled crushed bottle glass for 

grit blasting, which in large part was prompted by our desire to find a better and safer product over slag 

abrasives like coal slag. We have a small plant in Sewell, New Jersey, that has partnered with local towns 

to reduce piles of recycled glass that were destined for landfills. We have over eight employees working 
621

at the plant and could easily double that amount in the future. Our decision to enter the abrasive 

manufacturing business was ironically fueled by studies done by the EPA, NIOSH, and OSHA that 

proved how toxic slag abrasives like coal and copper are compared to other abrasives like garnet and 

crushed glass. 

The reason is that after being blasted the particles are shattered, and the unencapsulated dust is a major 

human health and environmental concern. When we discovered that 13 million tons of glass is dumped 

into landfills, we felt there was an opportunity to provide a competitive product that was safer than slags. 

Today there are many other small businesses like ours that are also trying to sell crushed glass and other 

abrasives that are nontoxic and inert. 

I thought it was important that I gave you this background information, but the real reason I'm here is not 

to discuss crushed glass, but as a voice of a small business owner who feels that we have been placed in 

an unfair competitive position by the past decision of the EPA in 2000 to classify boiler slag abrasives as 

part of the beneficial-use program. 

Since that time, there have been many well-documented studies by EPA, OSHA, and NIOSH that confirm 

that coal slag when used as an abrasive is harmful to human health and the environment. This is a clear 

violation of the new beneficial-use criteria announced on May 4th by Director Jackson, and the EPA 

should finalize its decision in their new CCR proposed rule to drop slag abrasives from the program. We 

wholeheartedly agree that Director Jackson -- that there needs to be a new commonsense approach to 

allowing a CCR product into the beneficial use program. The EPA's beneficial use approval for slag 

abrasives has, therefore, amounted to a federal subsidy of coal slag. 

The past actions by the EPA for slag abrasives have directly impaired small companies trying to compete 

against coal slag by denying us a level playing field. This has meant less jobs and less ability to open new 

plants to crush glass. Most of our glass actually comes from people who drank beverages in it. Coal slag 

waste comes directly from coal-fired power plants. 

Thank you very much for allowing me this time to not only represent New Age, but a growing small 

business segment with similar interests on the issue. We trust that the EPA will make the proper ruling in 

this matter that takes into full account all the human safety and environmental concerns that have been 

well documented

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0030-1

Organization1:Novetas Solutions

Commenter1:Paul Mellon

Commenter Type: Other Company

Classification: Substantive

Other Sections: 10.5.2.6

Comment Excerpt Text:

First of all, let me just start by handing a couple of samples over. This is coal slag abrasives. This is what 

it looks like when you buy it. I think earlier there was a gentleman from Harsco that brought up a boulder 

size rock and was hitting it on the podium here. That's not coal slag abrasives. This is what it looks like in 

its virgin state. And when you use the product as intended, you're blasting it against metal substrates at 

about 150 psi creating tons of airborne dust. In 1997, the EPA declared that this dust in black beauty coal 

slag abrasives manufactured by Harsco is a hazardous airborne pollutant. 

One of the things that I want to talk about in regards to coal slag abrasives is that when this product is 

used after it's blasted, it falls on the ground, falls on wherever you're blasting but then it also winds up in 

the landfill. The landfill test, to allow it to get there, is called the TCLP, we've heard it talked about today 

a few times, the Toxicity Characteristic Leaching Procedure. It's a test that mimics what happens when 

you put products like that into a landfill and whether they leach into the groundwater. However, as I said, 

most times a lot of this product never makes it to a landfill. It falls on the ground, it falls in the air, falls 
622

on people's clothes. 

The EPA has recognized this as an issue. Page 35150 of your federal proposed rule, "EPA also notes in 

this regard that recent research indicates that traditional leach procedures (e.g., TCLP and SPLP) may 

underestimate the actual leach rates of toxic constituents from CCRs under different field conditions." 

That's what I want to talk about today, a different field condition. Last night when I got into Chicago, I 

stayed about 25 miles south of here in Elmwood, Illinois. I had a chance to do a little shopping. I went to 

the local Menards and had an opportunity to buy a 50-pound bag of coal slag abrasives for $8 a bag. 

So, what we have is a situation here, thanks to the Beneficial Use Program of 2000 which thankfully 

looks like that's going to change because I notice that abrasives are not in your current rule, but we have a 

situation where Menards, one of the largest retail chains in the United States with over 1,000 stores are 

selling coal slag abrasives to the general public, the people of Chicago who are buying this everyday. I 

would submit to you that the TCLP is not an appropriate test when children are playing in their backyard 

after Dad's gone blasting maybe the fence or his, you know, antique car. This is the effect that, you know, 

it's got to be stopped. 

So, again, I would applaud the EPA for removing coal slag abrasives from the proposed rule. I would ask 

that you also seriously look at lowering the TCLP limits

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0098-1

Organization1:Harsco Minerals

Commenter1:Shane Strelsky

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

We produce mainly abrasives and granules for roofing shingles from boiler slag. Boiler slag is one of the 

listed coal combustion byproducts included in this proposed regulation. 

Harsco takes employees' health safety very seriously. We have participated in industrial hygiene surveys, 

we conduct -- we conduct regular safety meetings. And safety is an important part of how we do our 

business every day. Environmental permit compliance is also an important part of the way we conduct our 

business. In 20 years of operations, I do not know of any environmental issues caused by the boiler slag 

process by my facilities. 

I am in support of regulating boiler slag under Subtitle D. Some facts that demonstrate that there is no 

reasonable basis for subjecting boiler slag to regulation under Subtitle C are as follows: When extremely 

hot molten coal ash is quenched with cold water, the coal ash is vitrified and becomes a solid glassy 

matrix known boiler slag. Because boiler slag is vitrified, it is a very durable and environmentally stable 

material that effectively immobilizes its chemical constituents. 

Historically, boiler slag has always passed the TLC -- TCLP testing and has never exhibited any 

hazardous waste characteristics. I am not aware of any environmental issues brought forth by any of my 

customers. Any and all TCLP testing requested by any of my customers has never indicated any issues. 

Boiler slag makes up only 2 percent of total coal combustion byproducts, and 98 percent of it is recycled 

into valuable reusable products. Boiler slag has been beneficially used since the 1930's as an abrasive. 

Boiler slag is not commonly stored in surface impoundments. Harsco does not store any of our products, 

raw or processed, in any surface impoundments. 

Regulating boiler slag destined for disposal as a special waste under Subtitle C would unfairly stigmatize 

beneficially reused boiler slag that I have been processing for many years. My customers will be confused 

and concerned about purchasing products that are seen to be essentially the same as Subtitle C waste. 

I recognize the need for proper and environmentally sound standards for regulating the 2 percent of boiler 
623

slag that is discarded rather than beneficially reuse. However, I feel that the associated stigma that will be 

associated with Subtitle C will adversely impact my business. I am for Subtitle D

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0005-1

Organization1:Novetas Solutions

Commenter1:Paul Mellon

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

This is the fourth time I've had the opportunity to come to these EPA hearings, in addition to a meeting 

that I had in January in Washington D.C. And much of my comments have centered around the beneficial 

use program and specifically that the beneficial use program, while it has many merits, unfortunately 

contains products that, in fact, do not meet the criteria of the EPA and should not be included in the 

program. I've tried to lay -- lay out a factual documented case as to why that is. 

In coming to this meeting today, I intended to recap Novetas' position on the beneficial use program and 

why coal slag abrasives should not be in it. But ironically, two weeks ago today the Office of Inspector 

General of the EPA issued an early warning report which in many ways mirrors almost exactly our 

arguments about the beneficial use program and how it has been misused by certain companies with their 

products in the program. 

Specifically, the OIG found two major issues with the C2P website, which is the partnership program 

between the coal industry and the EPA to come up with the beneficial use program. The report basically 

states that the website contained an incomplete picture regarding potential damage as a result of 

unencapsulated coal slag prod -- coal -- coal products. 

And secondly, that you cannot use the logo or the seal of the EPA to promote commercial products. 

Specifically you see on Page 3 of the report the OIG talks about the -- the hazards of unencapsulated uses 

and how these unencapsulated uses can leach contaminants into the groundwater, drinking water, and 

obviously are not good for human health or the environment. 

Well, if you look at the next page, you can see that Harsco Corporation is currently, as of this Monday, on 

their website sending chain e-mails, or they're asking people to click on e-mails to send to the EPA. And 

then one of the e-mails makes a very curious statement. It says that the EPA has confirmed in 2000 and 

2009 no change in the science -- that there is no change in the science that would require boiler slag 

regulation, no scientific data exists. Well, the fact is that the EPA in 1997 has already labeled Black 

Beauty Abrasives as a hazardous airborne pollutant. There are several studies by OSHA and NIOSH that 

all say that these products are in fact hazardous. 

Second major issue is the EPA logo. Again, I'll quickly kind of get through this. Specifically it says the 

EPA logo is prohibited to be used to sell commercial products. Well, again, on the same Harsco website 

that you can click on today, you can see that they have the prominently seal of the EPA next to Black 

Beauty Abrasives and they're basically allowing people to think that the EPA is, in fact, promoting Black 

Beauty Abrasives. 

I guess the question is: If the EPA cannot stop Harsco Corporation after the OIG told you that you can't 

allow companies to use the logo to sell products, what kind of faith are people going to have in the 

beneficial use program when you finally issue your -- your -- your public ruling? Do the right thing. Tell 

companies that they can't use your logo to -- to sell products. And I appreciate the opportunity to talk to 

you today

Response: The Agency acknowledges and appreciates the comment
624

Comment Number: TRANS-KNX-0070-1

Organization1:New Age Fastening Systems

Commenter1:Steve Swartz

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

Earlier, my colleague spoke about what we felt was the misuse of the EPA logo, and today I'd like to talk 

about the beneficial-use program, as -- as well as what we feel is a misuse of the EPA endorsement. 

Now, everybody in this room, for the most part, has heard of the Creature from the Black Lagoon. Today, 

what I bring to you, courtesy of the Harsco Corporation, is what we call beauty from the black lagoon. 

What you have here is an ad. Black beauty abrasives speaks about passing the TCLP test. Obviously, you 

have a woman that's immersed in what only appears to be a black lagoon, and -- it's ads like this that we 

feel are very misleading. We feel like -- that the EPA has -- is in the position to do something about an ad 

like this. 

You know, when it comes to the -- the beneficial uses for coal combustion waste, we feel like -- that this 

is not a beneficial use, and this -- this ad is very misleading. It -- continue to -- to tie their ads to the 

TCLP, which we feel is a futile attempt at linking the TCLP standards to those drinking water standards. 

You know, if -- you know, in layman's terms, we just feel like this -- this ad is almost like the beneficialuse program gone wild. It's -- you know, a -- a picture speaks a thousand words, and we just feel like --

that -- that this -- this just speaks of misuse of coal combustion waste. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0011-2

Organization1:Novetas Solutions

Commenter1:Paul Mellon

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

Harsco Corporation has repeatedly stated the following at these very CCR public hearings and also on 

their own website that: EPA confirmed in 2000 and again in 2009 that there is no change in the science 

that requires the regulation of boiler slag therefore no scientific data exists to support reclassification of 

boiler slag as a listed hazardous waste. 

Again this is a complete fabrication designed to confuse and mislead. Harsco also apparently does not 

think that scientific studies done by the EPA and OSHA are credible or accurate. Novetas has repeatedly 

cited several very recent scientific studies from both OSHA and the EPA that conclusively prove that coal 

slag abrasives, after blasting, are hazardous to human health and the environment. The blatant ongoing 

slag industry disregard for the facts about coal slag abrasives demand that the EPA should immediately 

and publically announce that coal slag abrasives are no longer part of the new beneficial use program. 

This would prevent the coal slag industry from their almost fanatical portrayal of coal slag abrasives as 

still supported by the EPA and OSHA. Companies like the JPCL would then not feel 

obligated/intimidated to run misleading ads and blasting companies can make educated decisions on 

which abrasives to purchase based on the real facts

Response: The Agency acknowledges and appreciates the comment

Section 10.5.1.5 - Other unencapsulated uses
625

Total Number of Submissions: 26

Total Number of Comments: 32

Comment Number: TRANS-ARL-0103-3

Organization1:Environmental Defense Fund

Commenter1:Bill Petty

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

As for unencapsulated beneficial uses, these pose direct risk to the environment and human health and, 

when allowed, should be regulated under Subtitle C. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0141-2

Organization1:Save the Dunes Council

Commenter1:Larry Davis

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 10.2.2.1

Comment Excerpt Text:

The USEPA must also consider RCRA Subtitle C regulation on many other toxic Bevill exempt wastes 

disposed in a similar fashion in sensitive locations. For example, the millions of tons of steel mill waste 

along the shores of Lake Michigan that similarly threaten additional contamination of our fresh water 

supply with dissolved solids and heavy metals. And heavy metals are elements, they are neither created 

nor destroyed and they bio- accumulate.

In Indiana, the deleterious impacts of toxic coal combustion waste may readily be found anywhere anyone 

seriously investigates the dumping of these exempted wastes. From residential yards, town roads and 

landfills in Pines, Indiana to the coal mines themselves in Southern Indiana, toxic coal combustion waste 

disposal sites exist in some of the worst situations you can find concerning human health in our 

environment. Toxic coal combustion wastes have been discarded, disposed of and dumped in bridge 

embankments, impoundments, lagoons, landfills, mines both active and abandoned, roads, piles, ponds, et 

cetera, and locations that have little or no monitoring and poor containment for the toxic elements and 

radioactive constituents present in these wastes. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0009-1

Organization1:CROP PLUS

Commenter1:Diane Hoffner

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 6.1.1

Comment Excerpt Text:

Concerned Residents of Portland, New York, and People like us, or CROP PLUS, is a volunteer 

grassroots group established to protect our environment and waterways. We're working to end the use of 

coal combustion bottom ash as a deicer and traction agent on our roads. This ash is not encapsulated, sir, 

and it is a very serious concern. 

Our ditches are not lined. We believe this use is merely unmonitored dumping rather than reuse. What we 
626

have are a series of roads, pictures, during the winter months. The snow is pure white in these pictures, 

but the road is black. And then when the plows come back and push it to the side, it's a very slushy, black, 

soot-y type mess. It is bottom ash. 

My town mixes 10 part of bottom ash to three parts of sand, to one part of salt. And massive amounts can 

build up in the ditches. Our ditches, again, are not lined. 

New York State allowed this with a BUD of beneficial use, but that BUD issued in 1992 said it required 

that it be tested twice a year to guarantee the safety to our waterways and environment. However, in 1993 

New York introduced a new regulation which, again, is part of our problem. In this regulation, 360-1.15 

has four parts. Part A said any BUDs issued before should stay in effect with all of their conditions if they 

were issued previous to this. Part B lists 16 predetermined BUDs, where people don't even have to apply 

to use it. If you agree to use it this way, just go ahead and use it and you don't even have to apply. 

Absolutely no testing. 

Part D, though, again where we were told that our BUD 122 was incorporated into this, I felt, well, if they 

ignored it in part A and that said we should keep the rules under the BUD, it must have gone into part D. 

Part D has several regulations, on paper only, that call for testing and a plan, that the user and the 

producers provide a plan. None of these plans exist. It suggested that the ash not be stockpiled for more 

than 90 days before use. I have pictures here of huge piles from two towns: Portland and Pomfret. And 

what it shows is that these piles are right next to a creek. 

When I sent for FOIA information, absolutely no tests were available. I was granted a grant by 

Freshwater Future out of Michigan, and we tested two samples of coal ash, five streams and surface 

waters, and three domestic wells. We have those test results. And again, we repeatedly ask that this come 

up. At Correll Creek, which is behind my stockpile, when we were upstream, aluminum, arsenic, barium, 

chromium, iron, manganese, lead, and selenium were all very close to zero. However, slightly 

downstream, these numbers raised. And again, if anybody is interested in seeing this we will show the 

slide today in room 141 at noon, two, and 6:00 p.m. 

After we had tested the ash and the five waters -- my son will again show you some graphs. One of the 

streams goes right through two landfills. One of the landfills is designated (inaudible) case damage case. 

Don Cramer trucking, it is in the 2007 records, and that second one is presently being used. 

One of the streams that, with the ash sludge that we got from the ditch, came from the entrance to this 

landfill. It is unmarked. There is absolutely nobody around the area who knows exactly that this is a 

landfill. The closed one has 700,000 cubic yards of ash. It was closed by court order in 1988. It is still 

under 30 years of supposed testing and the records, in checking, is very poor. Absolutely no one is 

notified. 

The ditch sludge, the aluminum was over 16,000, arsenic at 11.8, barium at 846, chromium at 17, iron 

that 20,100 parts per million. Manganese, 464. Lead, 14.5, and selenium did not show. 

But what we have to do is guarantee. This ditch goes through two residential areas on the bay of Lake 

Erie, and then directly into Lake Erie. The three wells that were tested had quite a bit of waste on them, 

and one well has been in the DEC records since 1984 but that homeowner has not had any satisfaction 

from sludge at the bottom of the well. 

A second one was also very high, with the -- this particular thing shows all of our tests. And what we're 

asking is that the EPA grant us a meeting to review these three domestic wells, the five surface waters, 

and the sludge in the ash. Because this is proven to be very dangerous. 

Mr. Chuck Norse from Colorado reviewed our data and said that Correll Creek was a sure sign of 

contamination from water that is safe to drink to one that is beyond

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0054-3

Organization1:Environmental Defense Fund

Commenter1:Sam Prersall
627

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 10.5.1.6

Comment Excerpt Text:

A cradle-to-grave regulatory approach is absent from EPA's proposal for beneficial uses. For any 

proposed encapsulated beneficial use to be considered safe as far as consideration of all the risks or the 

full life cycle of a material, including risks from production, use, recycling and reuse, and the ultimate 

disposal of CCRs and any products or materials containing them. 

High temperature processes, opportunities to off-gas, and exposures to water all represent avenues 

whereby toxic components of CCRs can leave the beneficial use chain and directly enter the environment. 

Evaluating the safety of all phases of the life-cycle of the proposed use requires extensive information 

about the CCR constituents, including total metal content, chemical and physical form, fate and 

transformational potential, solubility and other factors related to the capacity of contaminants to become 

bio-available under a broad range of real-world conditions. 

Safety also requires the ability to track and monitor any such use over its full life-cycle to ensure that no 

appreciable risk could physically arise under worst-case scenarios such as use or reuse in homes or 

hospitals or schools. 

Plainly put, only some encapsulated beneficial uses can be considered truly encapsulated over their entire 

life cycles. Those that they can be, of course, are okay. Non-encapsulated beneficial uses such as a soil 

amendments, road beds or ice control pose such direct risks to the environment and human health that 

they should not be allowed

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0144-1

Organization1:CROP PLUS

Commenter1:Libby Chentfant

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Concerned residents of Portland, New York and People Like Us, Crop Plus, is a volunteer, grassroots 

group established to protect our environment and waterways. We are working to end the use of coal 

combustion and bottom ash as a deicer and traction agent on our roads. The ash is not encapsulated. Our 

ditches are not lined. We believe this use is merely unmonitored dumping rather than reuse. 

No required periodic ash analyses were found in our FOIL requested State records. Therefore, Crop Plus 

commissioned the professional sampling and testing of bottom ash, five surface waters, ditch sludge and 

three domestic wells. These samples were collected in the towns of Portland and Pomfret, New York. 

A creek which runs adjacent to Portland's stockpiled ash was the most severely contaminated. Chuck 

Norris of Geo-Hydro in Colorado reviewed the results and said, "This is a substantial piece of evidence 

that the Portland stockpile of coal bottom ash is contributing to water degradation scientifically and from 

the position of taking water that is safe to drink, to water that is unsafe." 

A residential well on a road that has received ash for decades was found to have very high levels of iron 

and manganese. The combined total for iron and manganese was 13.2 parts per million. The 

recommended New York state secondary drinking water standard is 0.5 parts per million. 

Agencies must re-evaluate manganese. When manganese was declared a secondary standard, little was 

known about its health effects. Today, manganese is known to affect the nervous system and is associated 

with muscle and mental problems. 

Furthermore, there is a pond at this residence. When the homeowner tries to stock the pond, fish do not 

live for more than 24 hours. Wildlife has been hunted on the property. Often the landowner finds diseased 
628

animals with tumors. The residents deserve to have their questions heard and answered. 

A sludge sample was collected from a roadside ditch. The water and the sludge from this ditch travels 

through two lakeside residential areas and into Lake Erie. This roadside ditch is at the entrance to two 

coal ash landfills. The cement entrance is washed with water that drains directly into the ditch. All test 

data will be submitted with written and electronic testimony. 

New York State DEC has recently closed hearings on a draft solid waste plan titled, "Beyond Waste." The 

proposed plan called for less testing requirements

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0082-1

Organization1:Citizens For Environmental Clean-Up in Fairfield, Texas

Commenter1:Charles Morgan

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Reuse of CCR waste must be such that these wastes are totally encapsulated. If that's used in concrete, 

fine. But use on roadways, even onsite, must not be allowed because there is so much coal traffic carrying 

the coal from the site, the mining site, to the plant that these wastes become airborne and they 

contaminate areas all around the mining area, plus the water streams, like Fairfield Lake and the Trinity 

River. These CCRs must not be allowed to be buried under or with the reclamation materials during the 

land reclamation processes after the coal removal, and then all of the outfalls in coal ash ponds must have 

elements specified for testing in that outfall effluent. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0030-2

Organization1:Colorado Interfaith Power and Light

Commenter1:Joy Jamison

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Comment Excerpt Text:

Another concern is unencapsulated beneficial uses happening right now, such as using coal ash particles 

as fill for golf courses, playgrounds, and for fertilizer. Playgrounds where children will be playing in coal 

ash? Fertilizer, wind will blow it everywhere.

According to EPA statistics, excess cancer risk for children drinking water contaminated with arsenic is 

as high as 1 in 50. Yet we're still storing coal ash with arsenic in unlined ponds. There must be similar 

risks in using coal ash for playgrounds and fertilizer.

Response: The Agency acknowledges and appreciates the comment

Section 10.5.1.6 - Encapsulated uses, including cement, concrete, bricks, other concrete products, 

wallboard, roofing materials

Total Number of Submissions: 59

Total Number of Comments: 73

Comment Number: TRANS-ARL-0010-2

Organization1:National Ready Mixed Concrete Association
629

Commenter1:Karthik Obla

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

As a matter of scale, Ready-Mix concrete consumes percent of all Portland cement used in this country. 

We represent over 1,500 concrete manufacturers and 50 state-affiliated organizations. Concrete is the 

most widely used construction material in the world, and it's produced and consumed in every 

congressional district of our country. With regard to fly ash, a major portion of coal combustion residuals, 

the Ready-Mix concrete industry is the largest beneficial user. 

Surveys of Ready-Mix concrete producers show that over 55 percent of all Ready-Mix concrete contains 

fly ash. Fly ash is used in commercial Portland cement to impart the following important benefits to 

concrete: Increased durability and service life; reduction of wastes into landfills; reductions in raw 

materials extracted; energy for production and air emissions, including CO2; and lower concrete materials 

costs. 

While the concrete industry currently uses about 15 million tons of fly ash annually, it is estimated that 

the concrete industry could increase its current use to more than 30 million tons per year by 2020, 

resulting in less fly ash going to landfills and reducing the concrete industry's carbon footprint by 20 

percent, which is the President's goal as well

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0077-1

Organization1:Harsco Minerals

Commenter1:Tom Shaw

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

For more than 70 years we have been a green recycler of boiler slag, producing mainly abrasives under 

the Black Beauty trade name and roofing granules for roofing shingles. Harsco Minerals employs 

approximately 500 employees and generates much needed revenue in many rural areas. Almost all of our 

business is built on the beneficial reuse of coal slag. 

The facts demonstrate that there is no reasonable basis for subjecting boiler slag to regulations under 

RCRA Subtitle C, not even as a special waste. When extremely hot, molten coal ash is quenched with 

cold water and the coal ash immediately becomes vitrified into an amorphous, solid and glassy matrix 

known as boiler slag. Because boiler slag is vitrified, it is very durable and an environmentally stable 

material that permanently immobilizes the chemical constituents into a glassy amorphous structure. Boiler 

slag makes up only 2 percent of coal combustion byproducts and the vast majority of it is recycled into 

valuable reusable products. Because it is beneficially reused, boiler slag is not commonly stored in 

surface impoundments. Historically, our boiler slag has always passed the TCLP and has never exhibited 

any hazardous-waste characteristics. Our testing of pre- and post-blast boiler slag using the EPA standard 

TCLP has confirmed that the resulting leachate meets drinking water standards. The scientific information 

about boiler slag and its physical properties have not changed since we began our operations 70 years ago. 

Regulating boiler slag destined for disposal is a special waste under Subtitle C would unfairly stigmatized 

beneficially reused boiler slag. 

Already, competitors have been using EPA's proposal to attack our products and try and take business 

away from us, not based on performance or value for the customer, but merely on stigma. Customers and 

consumers will continue to be confused and concerned about purchasing and using products that seem to 

be essentially the same as a Subtitle C waste. We have seen no evidence that boiler slag meets any 
630

threshold for regulation under Subtitle C. We are not aware of any environmental problems linked to our 

products. Boiler slag has been used since the 1930s as an abrasive in lieu of sand which is an abrasive that 

presents serious work or health concerns. We recognize the need for proper and environmentally sound 

standards for regulating the small percentage of boiler slag that is discarded rather than beneficially 

reused. Accordingly, consistent with the announced views of nearly 30 states and EPA's own two 

previous determinations evaluating proper management of CCRs, we support appropriate and reasonable 

disposal standards for any waste boiler slag under Subtitle D of RCRA

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0100-1

Organization1:Headwaters Resources

Commenter1:Bill Gehrmann

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

As the Administrator has said, it's time for a commonsense approach. Coal ash does not qualify as a 

hazardous waste based on its toxicity. In fact, the EPA's proposed engineering standards are essentially 

the same under both the Subtitle C hazardous waste and Subtitle D nonhazardous waste approaches. 

The other piece to addressing disposal of coal ash is recycling. Over 40 percent of coal ash is beneficially 

used. As the EPA has pointed out, using fly ash as a partial cement replacement for Portland cement in 

concrete reduces greenhouse gas emissions. This use of coal ash also provides significant engineering 

benefits. These engineering benefits result in substantial increases in the life cycles of the products they're 

used in. Roads last longer -- twice as long -- stretching the dollars that we as taxpayers spend on building 

and maintaining our infrastructure. 

The stigma of hazardous waste that is already being attached to coal ash due to the potential of a Subtitle 

C designation will result in more coal ash being landfilled, more greenhouse gas emissions, and more tax 

dollars being required to improve our infrastructure. This stigma has already led to the specifiers moving 

coal ash from their specifications. Competitive product suppliers are using the negativity of the Subtitle C 

hazardous waste designation in their advertising. End users of coal ash have already begun to assess their 

liabilities under a Subtitle C designation with their lawyers and insurance carriers. Efforts to push these 

liabilities down the supply chain have already begun impacting many small businesses that have been 

built around products and service based on the recycling of coal ash. These businesses are facing tough 

decisions, and many will likely be forced out of business by a hazardous waste designation. 

As for the incentives of Subtitle C, I've been in the industry for 25 years. When recycling first started, it 

was often subsidized or the material was given away. It wasn't until the waste stigmas of the use of the 

project had been addressed that any efforts to substantially increase recycling started to take place. This 

also came through the EPA's support of recycling through its coal combustion products partnership. That 

support has helped promote the beneficial use of coal ash and has helped increase recycling by almost 50 

percent. 

Don't turn around and start sending all of that coal ash that could be beneficially used into landfills 

instead. The stigma associated with Subtitle C has already begun to do this. If the desire of the EPA is to 

have federal jurisdiction, find another way. Don't do it under Subtitle C. Don't send more coal ash to the 

landfill

Response: The Agency acknowledges and appreciates the comment
631

Comment Number: TRANS-ARL-0103-2

Organization1:Environmental Defense Fund

Commenter1:Bill Petty

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

EDF supports safe beneficial uses of CCRS. However, for any proposed encapsulated beneficial use to be 

considered safe would require consideration of the risks over the full life cycle, including risks from 

production, use, recycling, and reuse, and ultimate disposal of both CCRs and any products or materials 

containing them with proper attention given to the type of CCR proposed to be used. 

Evaluating safety at all phases of the life cycle of a proposed use requires extensive information about the 

CCR constituents, including total metal content, chemical and physical form, fate and transformation 

potential, leachability, and other factors related to the capacity of contaminants to become bioavailable 

under a broad range of real-world conditions. Safety also requires an ability either to track and monitor 

any such use over its full life cycle or to ensure that no appreciable risk would arise under worst-case 

scenarios.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0019-1

Organization1:Harsco Minerals

Commenter1:Steve Stanislawczyk

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

Boiler slag is beneficially used into abrasives and roofing granules and it has been since the 1930's. Over 

one million tons of boiler slag is processed each year by Harsco alone. 

I am in support of regulating boiler slag under RCRA Subtitle D. *Boiler slag is one of the four Coal 

Combustion Byproducts (CCB) listed in the proposed rule. *Boiler slag only makes up 2 percent of the 

total volume and is commonly overlooked, and the vast majority (over 90 percent) of boiler slag is 

beneficially used and recycled. *Boiler slag is only processed with special types of combustion boilers 

where the molten material is quenched with water creating a vitrified amorphous nonporous solid mass 

where any metals are made into inert metal silicates. Breaking the material into smaller sizes does not 

alter the properties of the materials in any way, and this is a large example of it. It is a solid rock, a boiler 

slag. 

Some other facts that demonstrate why boiler slag should be regulated under D would be: *Historically, 

boiler slag has always passed the TCLP testing and has never exhibited any hazardous waste 

characteristics. *Harsco also contracted an accredited lab to subject boiler slag to the NEW leaching test 

method referenced in the proposed rule based on research conducted at Vanderbilt University; the 

resultant boiler slag leachate passed all leaching scenarios, digested at a high pH of 12, low pH of 2, 

introduction of strong chelating agents, and extended digestion times of over eight days. It just fairly 

reinforces that as a solid mass. *Harsco is not aware of any referenced damage cases in the proposed rule 

that was the result of mismanagement of boiler slag. *Boiler slag is not stored in surface impoundments 

and Harsco does not store any of our products (raw or processed) in any surface impoundments. 

*Regulating boiler slag destined for disposal as a special waste under Subtitle C would unfairly stigmatize 

beneficially used products such as boiler slag. 

And then, in summary, placing an unneeded stigma on an inert product beneficially used since the 1930's 

will add millions of EXTRA tons of non-hazardous waste into our hazardous waste landfills and 
632

significantly increase the demand for virgin mined material to replace boiler slag which has a far greater 

carbon footprint to replace the recycled boiler slag

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0037-1

Organization1:Headwaters Resources (spoke as employee)

Commenter1:David Marshall

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

In 1974 we began using fly ash based on previous positive experience with the product use in pipe and 

block. By the end of 1977 we were using fly ash in all our concrete production. 

As I learned about the technical aspects of concrete and of the use of fly ash, I became aware of the 

benefits to the end user in the area of durability and enhanced strength performance provided when a 

pozzolan is used in concrete. I also became aware of the federal buying recommendations and provisions 

to allow the use of fly ash in concrete when comparable mix design performance could be provided. By 

then, the Florida Department of Transportation was allowing fly ash in all concrete and was beginning to 

consider requiring fly ash in concrete in certain exposure conditions such as sea water. 

For over twelve years I served as the chair of the technical committee for Florida Concrete and Products 

Association, a state trade association and for ten years I was a board member of the Construction 

Materials Engineering Council, a group dedicated to quality concrete production and product testing. I 

became well recognized for my knowledge of concrete technology, testing, materials evaluation and 

performance guidance. And the more I learned, the more valuable fly ash came to be seen as a benefit for 

all parties. 

All along the way in the evaluation of fly ash use and its incorporation into our daily concrete production, 

we were very aware of the EPA and Federal government recommendations to allow the use of fly ash in 

concrete to the point where the Federal purchasing guidelines provided buying preferences for products 

using recovered materials to the greatest extent possible. The EPA was also very supportive of increased 

utilization and encouraged, supported and participated in ongoing research at many levels that encouraged 

and supported fly ash use. The 1980 Beville Amendment, 1983 procurement guidelines, 1988 revisions 

increasing the emphasis to use recovered materials to the greatest extent possible; all items indicating that 

fly ash was to the benefit of the producer, the consumer and the buying public. 

Power plants throughout the state and country were being asked to step up their ability to supply this 

increasingly valuable commodity and the establishment of sourcing terminals and distribution networks 

with appropriate backhauls was encouraged by the concrete industry. The FDOT has changed their 

predicted structural life from 30 years to 70 years when fly ash is incorporated in their mix designs, so 

they required its use in extremely aggressive environments. Not only were we encouraged to use fly ash 

to improve concrete performance, but we were encouraged to use fly ash to extend the supply of Portland 

cement, the most expensive item included in the production of ready-mix concrete and a material that is 

occasionally in short supply. And we were encouraged to use this recovered material to minimize landfill 

use in power plants. We were recycling long before it became popular at curbside

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0054-3

Organization1:Environmental Defense Fund

Commenter1:Sam Prersall
633

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 10.5.1.5

Comment Excerpt Text:

A cradle-to-grave regulatory approach is absent from EPA's proposal for beneficial uses. For any 

proposed encapsulated beneficial use to be considered safe as far as consideration of all the risks or the 

full life cycle of a material, including risks from production, use, recycling and reuse, and the ultimate 

disposal of CCRs and any products or materials containing them. 

High temperature processes, opportunities to off-gas, and exposures to water all represent avenues 

whereby toxic components of CCRs can leave the beneficial use chain and directly enter the environment.

Evaluating the safety of all phases of the life-cycle of the proposed use requires extensive information 

about the CCR constituents, including total metal content, chemical and physical form, fate and 

transformational potential, solubility and other factors related to the capacity of contaminants to become 

bio-available under a broad range of real-world conditions. 

Safety also requires the ability to track and monitor any such use over its full life-cycle to ensure that no 

appreciable risk could physically arise under worst-case scenarios such as use or reuse in homes or 

hospitals or schools. 

Plainly put, only some encapsulated beneficial uses can be considered truly encapsulated over their entire 

life cycles. Those that they can be, of course, are okay. Non-encapsulated beneficial uses such as a soil 

amendments, road beds or ice control pose such direct risks to the environment and human health that 

they should not be allowed

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0063-1

Organization1:National Ready Mixed Concrete Association

Commenter1:Gary Mullings

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

As a matter of scale, ready mix concrete consumes 75 percent of all Portland cement used in this country. 

Concrete is the most widely used construction material in the world and is produced and consumed in 

every congressional district of our country. With regard to fly ash, a major portion of coal combustion 

residuals, the ready mix concrete industry is the largest beneficial user. 

Surveys of ready mix concrete producers show that over 55 percent of all ready mix concrete contains fly 

ash. Fly ash is used in combination with Portland cement to impart the following benefits to concrete: 

Number one, it increases the durability and service life of structures. Number two, there's a reduction in 

waste sent to landfills. Three, there's a reduction in raw materials extracted and reduction in energy for 

production and air emissions, including CO2. And it lowers concrete costs for the consumers. 

While the concrete industry currently uses about 15 million tons of fly ash annually, it is estimated that 

the concrete industry could increase its current use to more than 30 million tons per year by 2020 

resulting in less fly ash going into landfills and reducing the concrete industry's carbon footprint by some 

20 percent.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0181-1

Organization1:Burgess-Brogden Concrete
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Commenter1:Gene Weston

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

Burgess-Brogden concrete is in the business of manufacturing ready-mix concrete. For over 40 years 

we've used fly ash as an additive in ready-mix concrete for the DOT, for institutional use, on municipal 

water supplies, and any number of different functions you could think of. As everyone is probably aware, 

it's probably about the most widely used construction material in the world. We've used concrete with fly 

ash in it during this time and have never had an issue with anyone ever getting ill from use of our 

concrete. 

Though the proposed reclassification won't disallow use of fly ash in concrete it's unlikely that folks in 

my industry, ready-mix concrete, will continue to consume fly ash at the rate -- by way of 15 million tons 

a year, for use in concrete. So that 15 million tons a year that we're using in concrete in your bridges and 

in your roads and slabs on grading foundations will go away and that's now going to be landfilled. That's 

the thing we don't want to happen. 

Burgess-Brogden Building Supply uses bottom ash in the manufacture of lightweight concrete block. This 

takes the place of other lightweight aggregates, which are pretty much in this area manufactured by 

expansion in a rotary kiln process, which requires heat, which requires energy, which gives off a CO2 

emissions. And these have already been subject to CO2 emissions in the production of power. 

We've never had, again, a problem with anyone getting ill with the millions of block that we have made 

using bottom ash. Likewise, bottom ash has been used as a road material and in a number of different 

tests done by our power companies in South Carolina, neither the stormwater runoff nor the wells 

(inaudible) these roads have shown any sign, and I mean any sign, of detrimental effects from the bottom 

ash that has been used in this construction. 

My partner in CastLite Sales has partnered with power companies in South Carolina to use bottom ash 

beneficially. Unfortunately, if classified as a hazardous material, we will not continue to use bottom ash. 

That company will go away. So folks like us quit using it, what we're going to see is 100 pounds of coal is 

going to produce about 10 pounds of residue that right now is heading toward an ash pond, a dump on the 

power plant side. Of that 10 pounds about seven and a half pounds are being used as fly ash and bottom 

ash beneficially in a given good economic time. That's going to go away. 

The bad news is the landfill at the power plant is going to grow that fast. That stuff is then going to be put 

in dumps and on trains and trucked to hazardous waste landfills off-site. So it's still going to still be on the 

road, still be on our right of ways and still take landfill space. The coal plants aren't going to go away 

because you and I as Americans like to have this light come on with a flip switch. 

Finally, reclassification will have an unintended consequence in increasing CO2 emissions, drive up the 

cost of power and construction for all of us, put pressure on our other natural resources, and impede 

American competitiveness and achieve very little return for the costs incurred

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0009-1

Organization1:Harsco Corporation

Commenter1:Tom Shaw

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

Since the 1930s we have been a green recycler of boiler slag. Boiler slag is formed when extremely hot 

molten coal ash is quenched with cold water, and the coal ash immediately becomes a vitrified, 
635

amorphous solid, glassy matrix known as boiler slag. 

Vitrification renders the material inert. In a chemical process using heat, it transforms the mixture into a 

soluble liquid which solidifies when cooling. Because slag is vitrified, it is very durable and an 

environmentally stable material that permanently immobilizes its chemical constituents in a glassy 

amorphous which remains stable, even when broken in small fragments during abrasive blasting, as 

evidenced by x-ray diffraction and TCLP data. 

Because it is beneficially reused, boiler slag is not commonly stored in surface impoundments. We 

regularly test our boiler slag and it has always passed TCLP testing and has never exhibited any 

hazardous waste characteristics. Our testing of pre- and post-blast boiler slag, an EPA standard TCLP test, 

has confirmed that the resulting leachate meets drinking water standards. 

The scientific information about boiler slag and its physical properties have not changed since we began 

our operations more than 70 years ago. Regulating boiler slag destined for disposal as a special waste 

under Subtitle C would unfairly stigmatize beneficially reused boiler slag, as is already evident by 

competitor actions. We have seen no evidence that boiler slag meets any threshold or regulation under 

Subtitle C, and we are not aware of any environmental problems linked to our products. 

As an abrasive, we are the primary alternative to silica sand, an abrasive that presents serious worker 

health concerns. We recognize the need for proper environmentally sound standards regulating the small 

percentage of boiler slag that is discarded rather than beneficially reused. 

Accordingly, consistent with the amounts used of nearly 30 states and EPA's two previous determinations 

evaluating proper management of coal combustion by-products, we support appropriate and reasonable 

disposal standards for any waste boiler slag under Subtitle D of RCRA

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0012-1

Organization1:National Ready Mixed Concrete Association

Commenter1:Kevin Walgenbach

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

As a matter of scale, ready mixed concrete consumes 75 percent of all portland cement used in this 

country. We represent over 1,500 concrete producers and 50 state-affiliated organizations. Concrete is the 

most widely used construction material in the world and is produced and consumed in every 

congressional district in our country. 

With regard to fly ash, a major portion of coal combustion residuals, the ready mixed concrete industry is

the largest beneficial user. Surveys of ready mixed concrete producers show that over 55 percent of all 

ready mixed concrete contains fly ash. 

Fly ash is used in combination with portland cement to impart the following benefits to concrete: 

Increased durability and service life of structures; reduction in waste sent to landfills; reduction in raw 

materials extracted, energy for production, and air emissions, including CO2; and lower concrete material 

cost. 

While the concrete industry currently uses about 15 million tons of fly ash annually, it is estimated that 

the concrete industry can increase its current use to more than 30 million tons per year by 2020, resulting 

in less fly ash going to landfills, and reducing the concrete industry's carbon footprint by 20 percent

Response: The Agency acknowledges and appreciates the comment
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Comment Number: TRANS-DAL-0021-1

Organization1:Acme Brick Company

Commenter1:Ed Watson

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

Acme has successfully incorporated bottom ash and fly ash as a substitute for other raw materials in the 

body of our finished product for over 25 years. In the case of clay brick manufacturing, we've utilized 

bottom ash produced at four different coal-fired generation plants, as a substitute for raw clay at six of our 

24 brick plants. Bottom ash is an excellent body additive that helps to stabilize the shrinkage of the brick 

body and assist in the -- in the drying and firing stages of the brick manufacturing process. And it helps to 

lower the consumption of fuel used to fire the brick. 

One of our largest plants, which employs close to 100 employees, has successfully -- was unsuccessful in 

making a durable fired brick until we incorporated bottom ash in 1986. If bottom ash were not available, 

we'd be required to mine additional raw clay and fire it in a rotary kiln to produce a calcined material for 

use. Over the course of the past 24 years, a single Acme plant has produced over 2 billion face brick; 

thereby -- and has consumed approximately 640,000 cubic yards of bottom ash; thereby conserving that 

same volume of virgin raw materials and millions of cubic feet of natural gas. Our utilization of this raw 

material also means that the power company is not required to dispose of the same volume in a landfill. 

In addition to the preceding example, Acme consumes significant volumes of bottom ash and fly ash at 

our seven concrete block plants. Bottom ash can be used as a replacement for other virgin raw materials, 

such as sand, gravel, or exposed -- or expanded lightweight aggregate. And fly ash can be substituted for 

a high percentage of portland cement used in manufacturing of CMUs. During the -- the process, CCRs 

are incapsulated in the body of the product. We're not aware of any issues with brick or block containing 

CCRs having any hazardous characteristics. This means that there are no known hazards associated with 

the use of products which have been manufactured using CCR. 

We're supportive of the adoption of Subtitle D for this regulation. If industry were able to utilize CCRs 

and overcome potential marketimpacts associated with using waste designated under Subtitle C, would 

likely require consumers to implement stringent controls, governing disposal, transportation, and so forth 

of this material. The actual planning and direct implementation of solid waste programs under Subtitle D 

remains a state and local function. This approach allows states to devise programs to deal with sitespecific conditions and needs. Acme believes this arrangement is preferred over stronger federally 

controlled programs that cannot effectively deal with the matters specific to state and local conditions

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0028-1

Organization1:Headwaters Resources

Commenter1:Ben Franklin

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

The use of fly ash is prevalent in most all state and federal infrastructure projects. It's used because it 

enhances the durability and lowers the initial cost of the highway paving, bridge decks, and all other 

concrete structures. The use of fly ash significantly impacts the life cycle cost of the infrastructure in the 

U.S. 

TxDOT has a significant problem with making concrete that will last, due to the poor stone and sands 

available. These aggregates may be expansive when exposed to highly alkaline cements and sulfated soils 
637

or groundwater. The best way to mitigate this issue at the lowest cost is by using fly ash. Without the fly 

ash in the state concrete mixes, the cost to the state taxpayer to pave a mile of roadway or build any 

concrete structure will likely double or triple

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0032-1

Organization1:Boral Material Technologies

Commenter1:Gary Shelton

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1 10.4.3

Comment Excerpt Text:

Our company's principle business is coal combustion products marketing and management. We have been 

involved with these activities for over 50 years. And certainly, we are supportive of the effort to protect 

the environment and human health. There's no doubt about that. We believe that this goal can be 

accomplished by regulating coal combustion products under a Subtitle D classification and that a Subtitle 

C classification will be harmful to the continued and ongoing use of these products. 

The event at Kingston and any other events are disposal and material management issues. They were not 

caused by the material itself and certainly not a hazardous material problem. 

Currently, one of the largest and most successful uses of coal combustion products is the use of fly ash in 

the production of concrete, which you've heard here today. This type of use has a proven 50-year record 

of successful use that is safe and productive. Increased use of all of these types of recovered resources in 

safe and appropriate markets is also occurring in other segments such as the uses as a mineral filler. 

These developments are accomplished in a judicious manner after extensive evaluations of material 

performance, safety and environmental impacts, and the economics of the intended use. Any type of 

hazardous classification will negatively impact usage. 

The -- the reality is the stigma issue is real. I have firsthand experience with concrete producers, the 

engineering community, and various agencies who report that a hazardous classification will at a very 

minimum cause these users -- these CCP users to reevaluate their practices. A Subtitle C regulation will 

only harm the beneficial use of CCPs. The overall effect will be -- will result in increase of virgin mine 

raw materials. CCPs have a proven -- have proven to be a valuable recovered resource that has been long 

recognized by the EPA for its benefits to the environment and society for many years. 

Coal combustion products should be handled, managed, and stored according to sound engineering 

procedures. This should be accomplished at the plant sites where these materials are produced in the 

correct manner. This goal can be -- can be accomplished without the risk of decreasing the ongoing and 

growing application of these products in a constructive method. 

I encourage the people -- the EPA to use sound scientific evidence as it makes the final determination on 

classification. Such evidence does strongly suggest that the correct material classification is Subtitle D. 

We oppose the regulation of CCPs as a Subtitle -- Subtitle C or any hybrid classification

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0034-2

Organization1:Boral Material Technologies

Commenter1:David Ditta

Commenter Type: Beneficial User

Classification: Substantive
638

Comment Excerpt Text:

Accordingly -- according to EPA, when fly ash is used in concrete, it significantly reduces the amount of 

greenhouse gases produced. The Electric Power Research Institute estimates that through beneficial uses 

coal combustion byproducts reduce CO2 production by 11 million tons annually. They also estimate that 

by using these products, we save over 51 million cubic yards of landfill space in the U.S. The U.S. Green 

Building Council recognizes that fly ash in concrete contributes to the recycled materials content in the 

lead rating system at the same time as being kept from disposal and landfills. 

Finally, we support recycling coal ash as a safe, environmentally preferable alternative to disposal. 

Therefore, we recommend the EPA regulate coal combustion byproducts under the Resource 

Conservation and Recovery Act Subtitle D and avoid any reference to these byproducts as a hazardous 

waste

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0035-1

Organization1:

Commenter1:Rel Corbin

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Substituting fly ash for portland cement creates concrete that is -- has pretty good compressive strength, 

but it does not have good tensile strength to support a load like over a span. So our highways start 

crumbling within 15 or 20 years, and that's releasing the dust right then. 

Now, properly -- the properly built retaining walls may last a long time like beside the -- where the 

freeways going through town. Cinder blocks, you can use fly ash for cinders in -- in concrete blocks. And 

they're okay if they're -- if the design is right and properly reinforced. But the construction industry has 

been using fly ash in cinders all along, decades -- at least decades. And I don't think they need that much 

more

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0100-1

Organization1:Black Diamond Granules

Commenter1:Bruce Haslerud

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

Our company processes boiler slag granules into roofing granules and abrasives. As an owner of a 

profitable, surviving Minnesota business, I came here to ask EPA to consider scientific data, as well as the 

practical implications of regulating boiler slag as a Subtitle C hazardous waste. 

I believe that as a matter of sound science and avoiding a potentially devastating economic impact that 

EPA determine coal slag to be regulated as a Subtitle D material. Although we are a small company, we 

have recycled over 3 point million -- 3.1 million tons of boiler slag granules into useable products during 

our existence. 

At EPA's Arlington, Virginia public meeting on August 30th, there were several allegations made by a 

competitor selling a competing product that unencapsulated boiler slag is a danger and threat to human 

health. It was also alleged that coal slag abrasives release hazardous airborne pollutants. 
639

I am compelled to share with you and for the public record the results of an independent, third-party 

laboratory analysis on my slag fines. The study was conducted by Pace Analytical, and it analyzed 

particulate fines from my plant, which are even finer than the slag granule residue from an abrasive 

blasting job. The data show that any metals in the slag granules maintain their encapsulated status and are 

not harmful. The data show that the particulate fines are similar in nature to soil in your backyard. I 

strongly encourage EPA to review this laboratory study and technical data. 

As you may know, 80 percent of all shingles contain boiler slag. If EPA declares boiler slag to be a 

special waste under Subtitle C because -- besides the cost of roof repairs going up, homeowner's 

insurance would also increase. This is because of the stigma of Subtitle C classification. 

Finally, the State of Minnesota currently encourages recycling of old shingles by allowing asphalt for 

state roadways to include a percentage of recycled shingles, but Minnesota does not permit hazardous 

waste to be recycled. If boiler slag is declared a special waste under Subtitle C, EPA will be gutting a 

program that allows for 100 percent recycling, undercutting its own mission to reduce, reuse, recycle

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0001-1

Organization1:National Ready Mixed Concrete Association

Commenter1:Dan Huffman

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Material that is ready mixed concrete consumes 75 of all portland cement used in this country. In my 

organization, NRMCA, we represent more than 1,500 concrete manufacturing companies and 50 stateaffiliated nonprofit organizations. 

Concrete is the most widely used construction material in the world and is produced and consumed in 

every congressional district in the United States. 

As it relates to fly ash, the ready mixed concrete industry is the largest beneficial user, and over 55 

percent of all ready mixed concrete contained fly ash, and fly ash is used in concrete with portland cement 

to impart the following benefits to concrete: Increased durability and service life of structures of all types; 

a reduction waste sent to landfills; a reduction in raw material extracted; a reduction in energy for 

production; a reduction in air emissions, including carbon dioxide; and fly ash lowers concrete materials 

costs. 

The concrete industry very beneficially consumed about 15 million tons of fly ash annually, but it is 

estimated that we could consume more than 30 million tons by 2020 resulting in less fly ash going into 

landfills and other places of concern and reducing the concrete industry's carbon footprint by 20 percent

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0100-1

Organization1:Boral Material Technologies

Commenter1:David Neel

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

We certainly support the EPA's effort to protect human health and the environment. However, we do not 

want the EPA to overreact by labeling fly ash as hazardous through Subtitle C regulation. 
640

A Subtitle C regulation will negatively impact our industry and result in significant damage to our 

environment, our employees, our customers, and other fly ash marketing firms. Also negatively impacted 

will be area-consumable electricity due to increased costs. 

The EPA should recognize the successful history of fly ash utilization in the U.S. and avoid taking actions 

that negatively affect the future successful use of these materials within the construction industry. 

The combination of improved economics and superior engineering properties have resulted in the use of 

fly ash being accepted as a routine material used in the daily production of ready mixed concrete and 

concrete products. It should be noted, there is no substitute produce for fly ash that produced similar 

results at similar costs. 

Scientific data is clear. In 1993 and again in 2000, EPA found coal ash did not warrant management as a 

hazardous waste. Material has not changed, and no new studies have revealed some unknown harmful 

traits. 

EPA is suggesting that regulating fly ash disposal under Subtitle C, a hazardous waste, with a

nonhazardous label for coal ash recycled for beneficial use, they don't believe a hazardous label will have 

a negative impact on recycling of these materials. We believe the EPA is not correct in this assumption. 

The stigma impact is real and already affected the beneficial reuse of fly ash. 

Owners, material specifiers, and engineers will refuse to allow fly ash in their projects due to concerns 

about future legal liability exposure. 

As an advocate for fly ash -- beneficial use of fly ash, I request that the EPA only regulate fly ash under 

Subtitle D to avoid any reference to fly ash as a hazardous waste. 

By the EPA's own admission, Subtitle D nonhazardous waste rule will provide an equal degree of 

protection to public health and the environment. The U.S. environment will best be served by continuing 

the fly ash success story of beneficial use and recycling

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0007-2

Organization1:Boral Material Technologies

Commenter1:John Scoggan

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Fly ash has been used in concrete since the 1920s. The federal government and the EPA have encouraged 

and supported the use of fly ash in concrete for over two decades. The environmental benefits of using fly 

ash in concrete have been detailed by others at previous hearings and include: the reduction of CO2 

estimated to be 11 million tons annually; the reduction of waste placed in landfills estimated to be 51 

million cubic yards of landfill space saved annually; the red -- reduce requirement for excavation or 

quarrying of an equal amount of virgin raw material. Other benefits include substantial water and energy 

savings. 

The recycling of coal combustion products is a suc -- is a success story with utilization growing from 

30% in the year 2000 to 44% in 2008, representing the use of over 60 million tons of material annually. 

The EPA's strategic plan calls for a further increase of beneficial use of coal combustion products up to 

50% by the year 2015

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0013-1

Organization1:Headwaters Resources (spoke as employee)
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Commenter1:Doug Rhodes

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

And I wanted to take the time allotted me to discuss the positive effects of fly ash as a replacement for 

Portland cement in concrete. The beneficial use will be negatively impacted, as you've been informed by 

the stigma already occurring. The belief that fly ash can have a dual designation as hazardous for disposal 

and non- hazardous for beneficial use is absolutely untrue. Years of work has gone into establishing the 

technical data, relationships, distribution and product development that validates beneficial use. 

The stigma of hazardous designation would simply destroy the marketability of the environmental, 

financial and technical use of fly ash in concrete. The positive technical attributes of fly ash in concrete 

construction are very well documented by private industry, universities, as well as local and federal 

agencies. 

The beneficial use of fly ash in concrete construction has been used in the United States since the early 

30s. The use of fly ash as a cement replacement in concrete has benefit to both the fresh and hardened 

properties. The fly ash affects the fresh properties of concrete by improving workability, reducing water 

demand, reducing segregation and bleeding, and lowering heat of hydration. 

Fly ash increases strength -- excuse me. Fly ash in -- fly ash increases strength, reduces permeability, 

reduces corrosion of reinforcing steel, increases sulfate resistance, and reduces alkali aggregate reaction. 

The only solution for the concrete producer will be to increase the use of cement and chemical add 

mixtures to fill the beneficial void that -- which will be left by the absence of fly ash. 

Not only does fly ash improve the performance and quality of concrete, it offers environmental 

advantages. Just the use of 1 ton of fly ash in concrete conserves enough landfill space for 455 days of 

solid waste for the average American, reduces a -- reduction of CO2 emissions is equal two months of 

emissions from an automobile, energy savings is enough to provide electricity to the average American 

home for 24 days. 

The stigma placed on fly ash by hazardous designation will negate the use and this benefit will be lost. I 

will take this opportunity to remind you of the negative impacts on marketing, technical, financial, and 

the legal implications for the beneficial use of fly ash. 

So, in closing, I urge you to maintain the past technical findings that CCR regulation under Subtitle C is 

unnecessary and unwarranted

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0050-2

Organization1:Tennessee Riverkeeper

Commenter1:Mark Martin

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

But it -- really the -- its use even in concrete and drywell hasn't been properly studied. At least, in a 

landfill you know where the stuff is, you know where it's going to be. Now, drywall and concrete 

eventually will be in a C and D landfill. Currently -- that's the current practice. They're unlined. 

Now, does the material leach out of drywall and concrete into the ground, into groundwater? Are we just 

taking a problem that we have today and putting it off on our children and our grandchildren? We really 

don't know. The studies haven't been done. They should be done. It should have been an ongoing study

Response: The Agency acknowledges and appreciates the comment
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Comment Number: TRANS-KNX-0063-1

Organization1:Harsco Corporation

Commenter1:Tom Shaw

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

Since the 1930s, we have been a green recycler of boiler slag, one of the four major types of coal 

combustion byproducts. Boiler slag is formed when extremely hot molten coal ash is quenched with cold 

water and the coal ash immediately becomes a vitrified amorphous solid, glassy matrix soil known as 

boiler slag. Vitrification renders a material inert in a chemical process using heat. It transforms a mixture 

into a soluble liquid which solidifies on cooling, essentially encapsulation by nature. 

Because boiler slag is vitrified, it is a very durable and environmentally stable material that permanently 

immobilizes its chemical constituents in a glassy amorphous structure which remains stable even when 

broken into small fragments during abrasive blasting as evident by x-ray diffraction and TCLP data. 

Because it is beneficially reused, boiler slag is not commonly stored in surface impoundments. We 

regularly test our boiler slag, and it has always passed the TCLP testing and has never exhibited any 

hazardous waste characteristics. This includes both pre and post blast abrasive grit. 

The scientific information about boiler slag and its physical properties have not changed since we began 

our operations over 70 years ago. We have also tested our material using the recently developed 

Vanderbilt leaching procedure which is designed to reflect real world conditions, and the results confirm 

the absence of any hazardous waste characteristics. 

Regulating boiler slag destined for disposal as a special waste under Subtitle C would unfairly stigmatize 

beneficially reused boiler slag, as is already evident by competitive actions. We have seen no evidence 

that boiler slag meets any threshold for regulation under Subtitle C. We are not aware of any 

environmental problems linked to our products. 

As an abrasive, we are the primary alternative to silica sand, an abrasive that presents serious worker 

health concerns. We recognize the need for proper and environmentally sound standards for regulating the 

small percentage of boiler slag that is discarded rather than beneficially reused. 

Accordingly, consistent with the announced views of nearly 30 states and EPA's 2 previous 

determinations evaluating proper management of coal combustion byproducts, we support appropriate 

and reasonable disposal standards for any waste boiler slag under Subtitle D of RCRA

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0014-1

Organization1:Harsco Minerals

Commenter1:Leonard Ford

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

Harsco takes employee health and safety very seriously. We have participated in industrial hygiene 

surveys, conducted regular safety meetings, and safety is an important part of the way we conduct 

business every day. 

Environmental permit compliance is also an important part of the way we conduct our business. In 30 

years of operation I do not know of any environmental issues caused by the boiler slag processing by our 

facilities. 

I am in support of regulating boiler slag under RCRA Subtitle D. 
643

Some facts that -- that demonstrate that there are no reasonable basis for subjecting boiler slag to 

regulation under the RCRA Subtitle C are as follows: When extremely hot, molten slag ash is quenched 

with cold water, the coal ash is vitrified and becomes a solid, glassy matrix known as "boiler slag." 

Because the boiler slag is vitrified, it is very durable and environmentally stable material that effectively 

immobilizes its chemical constituents. 

Historically, boiler slag has always passed TCLP testing and has never exhibited any hazardous waste 

characteristics. 

I'm not aware of any environmental issues brought forth by any of my con -- customers, and all the TCLP 

testing requested by any of the -- my customers has never indicated any issues. 

Boiler slag makes up only 2% of the coal combustion by-products and 98% is recycled into valuable re --

reusable products. Boiler slag has been beneficially used since the 1930s as an abrasive. Beneficially used 

boiler slag replaces material mined from virgin material. Beneficial use of boiler slag reduces the carbon 

footprint of mining and processing of virgin materials. Boiler slag is not commonly stored in surface 

impoundments. Harsco does not store any of its products in any surface impoundments. 

Regulating boiler slag destined for disposal has -- as a special waste under Subtitle C would be unfairly 

stigmatized beneficial us -- reused boiler slag that I have been processing for many years. My customers 

will be confused and concerned about the purchasing products that are seen to be essentially the same as 

Subtitle C waste

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0030-1

Organization1:National Ready Mixed Concrete Association

Commenter1:Kerri Leininger

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

As a matter of scale, ready-mixed concrete consumes 75% of all Portland cement used in this country. We 

represent over 1,500 concrete manufacturers and 50 state-affiliated organizations, including the Kentucky 

Ready Mixed Concrete Association. 

Concrete is the most widely used construction material in the world and is produced and consumed in 

every congressional district of our country. 

With regard to fly ash, a major portion of coal combustion residuals, the ready-mixed concrete industry is 

the largest beneficial user. Surveys of ready-mixed concrete producers show that over 55% of readymixed concrete contains fly ash. Fly ash is used in combination with Portland cement to impart the 

following beneficial qualities to concrete: Increased durability and service sli -- service life of structures, 

reduction in waste sent to landfills, reduction in raw materials extracted, energy for production, and air 

emissions, including COT -- CO2, and lower concrete material costs. 

While the concrete industry currently uses about 15 million tons of fly ash annually, it is estimated that 

the concrete industry could increase that current usage to more than 30 percent -- I'm sorry, 30 million 

tons per year by 2020, resulting in less fly ash going to landfills, and reducing the concrete industry's 

carbon footprint by 20%.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0038-2

Organization1:Boral Material Technologies

Commenter1:John Scoggan
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Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

The environmental benefits of using fly ash in concrete include: Reduction of CO2 by replacing cement in 

concrete. EPRI ep -- EPRI estimates reduction of 11 million tons of CO2 annually; a reduction in landfill 

space, EPRI estimates a savings equal to 51 million cubic yards of space annual. Recycling reduces the 

requirements for excavation and -- or quarrying of equal amounts of raw virgin material. Other benefits 

include substantial water and energy savings as well. 

Recycling coal combustion products has also been supported by other government agencies, the 

Department Ag -- of Agriculture, Department of Energy, the Federal Highway Administration and state 

DOTs. Others supporting this recycling include trade and professional associations, the American Coal 

Ash Association, the National Ready Mixed Concrete Association, the American Society for Testing and 

Materials, and the American Concrete Institute. 

The results of all this work, recycling coal combustion products, has grown from 30% in the year 2000 to 

44% in 2008, 60 million tons. None of these groups believes that -- that hazardous waste regulations are 

warranted for coal combustion residues

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0048-1

Organization1:Sphere One

Commenter1:Ryan Brownhill

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

We have marketed cenospheres since -- since 1981 from our Chattanooga plant. We have thoroughly 

tested our products through the years and the heavy metals encapsulated within cenospheres do not leach 

out. In no way do cenospheres meet the criteria of a RCRA Subtitle C waste and do not deserve to be sig -

- stigmatized by that designation. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0038-1

Organization1:Portland Cement Association

Commenter1:Ken Justice

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

I'm going to go in a different direction here to make my point real quick. I want to state a few facts about 

pavements. There's only two realistic materials that we use for highways and roads, asphalt or concrete. 

They're both made the same. It's rock, sand and glue. It's the difference in the glue that separates the 

asphalt from the concrete. Asphalt is made by using basically refined oil and what's left at the bottom of 

the barrel, so to speak, is that sticky black stuff what we know as liquid asphalt. Concrete is made by 

taking powdered cement and we also add cementitious products called pozzolans, such as fly ash. By 

using fly ash, not only are we recycling the material, but we are also -- fly ash has actually been used 

since the Ancient Romans -- fly ash and concrete is what gives it that superior strength, to be used for 

bridge piers or columns, to give us roadways that meet the PSI, pounds per square inch, requirements that 

we ask for in our roads to keep them more durable, make them safe and make them more resistant to 
645

chemical attacks. 

The beneficial use of fly ash means instead of putting in a landfill, we are using it to better our society. In 

addition to that, by using the concrete with fly ash in it, we are in effect using resources that we're 

generating here in America as opposed to oil, and we all know about what oil can do, and also our 

dependence on foreign oil, which our current administration is trying to get away from. In effect, what 

we're saying is the more we can help use concrete, the more we can actually stay away continuing to 

depend on oil the way we did in the past. I urge you to consider these points when you're considering this 

new regulation

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0099-2

Organization1:Black Diamond Granules

Commenter1:Bruce Halerrud

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Boiler slag is one of the byproducts of burning coal to produce electricity. Coal is burned at high 

temperatures producing a molten coal ash that is quenched with water for cooling. The quench transforms 

the molten ash into a vitrified mass with limited permeability. Any and all heavy metals of the boiler slag 

are locked up in the vitrified matrix. Vitrification is a successful waste treatment process while supported 

by the EPA. 

The data show that any metal in the slag granules maintain their encapsulated status are not harmful and, 

in fact, are similar in nature to the soil in your backyard. We have previously supplied EPA with 

independent testing data of our Finance Vitrification Granules that support this conclusion. This data 

reconfirms EPA's own studies previously conducted declared boiler slag to be unharmful. As you know, 

80 percent of all shingles contain boiler slag. If EPA declares boiler slag to be a special waste under 

Subtitle C, homeowners all across the USA would see the cost of roofing repairs going up to 30 to 50 

percent, and homeowner's insurance rates increasing by 20 to 30 percent because of the stigma of the 

Subtitle C classification. That is not a situation that you need to be the homeowners of this country in. 

It does not seem logical that a nonhazardous material should be regulated under Subtitle C because there 

are low levels of metals present in the boiler slag to begin with and the metals that aren't present are 

locked up in a vitrified matrix that has very low permeability

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0100-2

Organization1:Abrasives Incorporated

Commenter1:Russell Raad

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

At EPA's Arlington, Virginia public meeting on August 30th, there were several allegations made by a 

competitor selling a competing product that unencapsulated boiler slag is a danger and threat to human 

health. It was also alleged that coal slag abrasives release hazardous airborne pollutants. 

I'm compelled to share with you today and for the public, the results of an independent, third party 

laboratory analysis of my slag fines. This study was conducted by Minnesota Valley Testing Laboratories 
646

of Bismarck, North Dakota and it analyzed particulate fines from my plant, which are even finer than slag 

residue from an abrasive blasting job. The data shows that any metals in the slag granules maintain their 

encapsulated state and are not harmful or hazardous. The data also indicates that the material is in its 

worst case is less than one tenth of the action levels that would classify the material as a hazardous 

substance. These results refute the speakers in Arlington, Virginia and Charlotte, South Carolina, who 

spoke of erroneous claims that boiler slag abrasives release hazardous waste pollutant and dangerous 

when used as abrasives. The data confirms EPA's previous studies that declared boiler slag to be inert, 

unharmful and nonhazardous. 

Finally, we ask that the EPA continue unrestricted recycling of boiler slag as it does not meet the 

definition of a hazardous material or waste. To continue associating boiler slag as a hazardous waste

increases the negative stigma among the public, industry and inviting competition to jump on the negative 

bandwagon although scientifically proven within the specs of a safe material. I support Subtitle D

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0104-2

Organization1:Sphere One

Commenter1:Mark Bonne

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.3 4.1.1

Comment Excerpt Text:

I support the EPA's need to protect the American public from heavy metal contamination, which were 

improperly stored. The heavy metals found in Cenospheres are fused into aluminum silicate shell offer no 

health risk. These materials are then encapsulated in cement or a polymeric matrix, which makes them 

biologically insoluble. If the EPA designates CCRs as hazardous waste when being disposed of, the 

American public will consider it hazardous materials in all cases and won't let their use in their homes. 

Subtitle D regulations with strong enforcement will allow American industries find suitable extended 

service life applications for fly ash products. This is a much better option than landfilling them under 

Subtitle C. 

It isn't economically advantageous to landfill all these products and it's just transfers the problem from the 

power plant to the landfill. I agree that the proposed legislation creates an incentive coal power to find 

applications for fly ash, but unfortunately, it make the materials unusable by private industry. If the EPA's 

intent is to assure that these materials be rendered environmentally inert, then Subtitle D is the best 

regulation. 

Response: The Agency acknowledges and appreciates the comment

Section 10.5.2.3 - EPA requests info/data on where states have, or are developing, increasingly 

effective beneficial use programs (35162, 35222); EPA solicits info/data on continuing development 

of state “beneficial use” regulatory programs under state SW authorities (35160)

Total Number of Submissions: 109

Total Number of Comments: 196

Comment Number: TRANS-ARL-0001-2

Organization1:American Road and Transportation Builders Association

Commenter1:Nick Goldstein

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:
647

Specific details on the beneficial use of coal ash in transportation improvements has been reported from a 

variety of states, including Colorado, where the use of coal ash resulted in GHG emissions reductions of 

19,500 tons; Indiana, where transportation was able to use an average of 42 percent of the recycled coal 

ash in the state; North Carolina, where the use of coal ash is saving 5- to 10 million annually on 

transportation projects; Texas, where those savings are estimated at 16 million annually; and perhaps 

most recognizably in Minnesota, where coal ash was used in the concrete for the new I-35 bridge 

replacement.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0058-1

Organization1:PPL Corporation

Commenter1:Craig Shamory

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

CCRs from our Pennsylvania plants have been effectively regulated since 1992 as a nonhazardous waste 

under Pennsylvania's residual waste regulations. Furthermore, Pennsylvania and Montana recognize that 

properly implemented beneficial uses are an environmentally responsible option for managing these 

materials. 

Response: The Agency acknowledges and appreciates the comment

Comment Response: The Agency acknowledges and appreciates the comment Number: TRANSCHI-0017-1

Organization1:We Energies

Commenter1:Art Covi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

We have attempted to illustrate to EPA the many environmental and economic advantages of our own 

beneficial use program, and we share a deep concern for maintaining the positive integrity of our 

programs in Michigan and Wisconsin under the very successful Department of Natural Resources NR 538 

program. The program is a clear example of how state agencies can control CCPs and has been 

recognized by EPA as an excellent template for developing strong regulations which provide 

environmental protection. These regulations were developed in Wisconsin with the participation of 

industry, government and environmental groups over ten years ago with the goal of minimizing waste and 

reducing landfilling. It has been enormously successful, and our own We Energies documented utilization 

rate was 99 percent in 2009. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0094-2

Organization1:Wisconsin Department of Natural Resources

Commenter1:Ann Coakley

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:
648

Beneficial use. Wisconsin's successful, nationally recognized and renowned program has resulted in 

Wisconsin utilities beneficially reusing up to 85 percent of coal ash each year. Some examples. FGD 

materials are used in wallboards, cement manufacturing, and in concrete products. Coal bottom ash is 

successfully used as geotechnical fill material in road construction. Approximately 10 million cubic yards 

of CCR materials have been beneficially used since our Beneficial Use Program was created in 1997, the 

equivalent of three to four landfills. The high level of reuse in Wisconsin greatly decrease the need for 

disposal, saves on landfill space, reduces need for virgin products, and reduces greenhouse gas production 

while protecting public health and the environment.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0001-2

Organization1:Texas Coal Combustion Products Coalition

Commenter1:Mike Nasi

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 10.4.3

Comment Excerpt Text:

I'll spend the time that I have today imploring EPA to remember and look beyond the PR campaign, the 

negative PR campaign of the day, and remember that coal ash recycling is, in fact, one of the great 

American environmental success stories, a success story and gains that all could be lost if the wrong 

approach is taken with this rule making. 

Back in the early 1990s, Texas had the regulatory foresight to develop a framework that responsibly 

managed the disposal of CCBs while at the same time expanding the markets for CCP recycling. That 

leadership led to an increased recycle rate of 15 percent in 1992, all the way to 70 percent in 2005, 

successes that were recognized by EPA when it commissioned a study in 2005 to identify and describe 

Texas as a model state. 

In that report, I quote, this report said: "Other states with less successful CCP utilization can learn from 

what Texas has done right and implement similar activities in their own states." 

That report identified as a direct threat to continued successful recycling the stigma that would result from 

Subtitle C regulation. There are many that would suggest that stigma is not real. We would submit to you 

that that 2005 report establishes that it's real. The federal agencies that have commented to EPA already 

on the rule establishes that it's real. You will hear from many today who spent the large part of their adult 

lives successfully recycling CCPs, who believe and are convinced that the stigma is real.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0004-1

Organization1:Texas Commission on Environmental Quality

Commenter1:Earl Lott

Commenter Type: State Government

Classification: Substantive

Other Sections: 7.1

Comment Excerpt Text:

Texas has one of the highest number of coal facilities in the United States and consequently the largest 

producer of coal combustion residuals in the nation. We believe that Texas has adequate and effective 

regulations to safely manage coal combustion residuals. Texas has promulgated effective legislation and 

has been at the forefront of recycling initiatives for the use of coal combustion by-products in the 

industry. Coal combustion recycling rates in Texas are as high as 60 to 70 percent. 

EPA has acknowledged that Texas has been a model state on this issue, and that was recognized in the 

early '90s. Recycling rates have dramatically improved in Texas, from around 20 to 25 percent in the 
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early '90s to the rate of 60 to 70 percent today. We've done this -- achieved this through progressive 

legislation, by diligent work with -- cooperating with state agencies like the Texas Department of 

Transportation, as well as working with industry groups and utilities on building these markets. Also, 

Texas coal-fired facilities generally produce high-quality coal combustion residuals that are appropriate 

for a number of beneficial use applications in highway construction building products and infrastructure 

building materials. In most areas of the state, Texas has developed a fly-ash-based concrete market 

producing high-quality products.

We believe that the EPA's proposed options to regulate coal combustion residuals under the Subtitle C of 

RCRA threatens the great strides that Texas has made in dramatically improving the coal combustion 

recycling rates in Texas. The TCEQ has effective regulations in place to safely manage coal combustion 

residuals. Even though permits are currently not required, we do require registrations and monitoring of 

the material, which also provides safeguards in preventing the impacts to health and the environment. 

Texas regulations require the characterization, classification, and submittal of that notification of the 

waste prior to disposal. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0040-2

Organization1:Association of Electric Companies of Texas

Commenter1:Walt Baum

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 7.1 3.1.2

Comment Excerpt Text:

The Texas Commission on Environmental Quality oversees the design, construction, monitoring, 

reporting, and final closure of all CCR disposal facilities. TCEQ's robust state regulatory program ensures 

the disposal and reuse of CCRs are conducted in a manner that is protective of human health and the 

environment.

In summary, AECT strongly opposes the regulation of CCRs as a hazardous material and believes that 

Texas has a protective program that does not need a new federal program.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0092-3

Organization1:Office of the Texas Comptroller of Public Accounts

Commenter1:David Schanbacher

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

A review of Texas regulations, standards, and practices related to the use of coal ash conducted for the 

EPA by the Energy and Environment Research Center concluded that Texas has a successful program to 

encourage the beneficial use of coal ash. One of the keys to Texas' success is the flexibility TCEQ has to 

allow beneficial use of coal ash while retaining the regulatory option to correct any problems that arise. 

Further, the report says that one of the threats that could hinder recycling in the future is the very action 

that EPA is proposing with these rules. 

Response: The Agency acknowledges and appreciates the comment
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Comment Number: TRANS-DEN-0059-2

Organization1:Kansas City Power & Light

Commenter1:Fred Gustin

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Further, the states of Missouri and Kansas have strong utility byproduct management programs, and we 

encourage EPA to look closely at them. 

Response: The Agency acknowledges and appreciates the comment

Section 10.5.2.4 - EPA solicits info/data on extent to which states request and evaluate CCR 

characterization data prior to beneficial use of unencapsulated CCRs (35165, 35222)

Total Number of Submissions: 22

Total Number of Comments: 30

Comment Number: TRANS-DEN-0060-1

Organization1:Wyoming Department of Environmental Quality (DEQ)

Commenter1:Bob Doctor

Commenter Type: State Government

Classification: Substantive

Other Sections: 7.1

Comment Excerpt Text:

I manage Wyoming's solid waste permitting and corrective action program and Wyoming DEQ. I'm here 

with a written statement, so I'll try and be quick here. 

We regulate -- and I'm sorry. We use the W word in Wyoming still -- coal combustion waste, which is 

regulated as a Subtitle D waste under rules that mirror EPA's Subtitle D requirements for municipal solid 

waste. We regulate it under three separate programs in the DEQ in Wyoming. Surface impoundments are 

regulated both by our water quality division as wastewater ponds and under our state engineer's office 

under dam regulations for the construction of dams and dikes in the state engineer's office. 

These two programs both require permitting for all these impoundments. They have various degrees of 

monitoring, engineer certification, inspections a minimum once every five years of these impoundments. 

I can speak more to solid waste since that's the program I manage. We permit these things almost like we 

do municipal solid waste landfills with virtually the same type of requirements for public participation, 

liners, other engineered containment systems such as caps, leachate management. 

We also require characterization of the waste. We encourage especially that. We require that for any 

beneficial use. We try to encourage beneficial use through our solid waste rules and regulations. 

We also have requirements for monitoring corrective action. Again, another public requirement for 

participation if facilities must go into public corrective action mode. 

We also require closure and long-term post-closure care for these facilities that amounts to about the same 

30 years of post-closure care that you would give to a municipal landfill. 

We believe that states are in a better position to regulate coal combustion waste than the EPA is. Most of 

these decisions, many are site-specific conditions that require site-specific knowledge of soils, 

groundwater, waste type, that stuff. We've heard that not all CCW is the same. 

Response: The Agency acknowledges and appreciates the comment

Section 10.5.2.5 - EPA seeks comment/data on what type of characterization is most appropriate to 

protect HHE, if materials characterization is required; If CCRs exceed the toxicity characteristic at 
651

pH levels different from TCLP, should they be excluded from beneficial use? When are total levels 

relevant? (35165, 35222)

Total Number of Submissions: 34

Total Number of Comments: 50

Comment Number: TRANS-LVL-0184-3

Organization1:Kentucky Resources Council

Commenter1:Tom Fitzgerald

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Second, appropriate testing methods must be employed that will demonstrate that under the use or 

disposal scenario, human health and the environment will not be harmed. The widespread misuse of 

TCLP toxicity to characterize coal combustion wastes intended to be beneficially reused, or disposed of in 

other than mixed municipal waste landfills, results in cases where the long-term leaching of metals is 

underestimated. The EPA's Science Advisory Board has criticized the TCLP protocol on the basis of 

several technical considerations, including the test's consideration of leaching kinetics, liquid-to-solid 

ratio, pH, potential for colloid formation, particle size reduction, aging, volatile losses, and co-mingling of 

the tested material with other wastes (i.e., co-disposal). 

The literature suggests that TCLP testing is generally insufficient to predict short- and long- term leaching 

characteristics of coal combustion fly and bottom ash. Because of the limitations of TCLP testing, 

management decisions are being made that may expose generators, transporters, and re-users or disposers 

of the CCW to residual liabilities.

Response: The Agency acknowledges and appreciates the comment

Section 10.5.2.6 - EPA solicits info/data on how new research indicating TCLP may not accurately 

represent performance of various types of CCRs under variable field conditions, and how CCR 

beneficial uses may be affected by this development (35160)

Total Number of Submissions: 20

Total Number of Comments: 26

Comment Number: TRANS-ARL-0002-2

Organization1:Environmental Integrity Project

Commenter1:Eric Shaffer

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

We hear a lot of talk about coal ash not being hazardous based on the so-called toxicity characteristic 

leaching procedure used for chemical waste. But I think EPA's known for more than four years now -- the 

National Research Council warned you -- that this was not the right test for coal ash because it doesn't 

accurately predict leaching rates from that material. And, of course, we have now groundwater 

contamination at more than 100 sites. 

So are you going to act on the NRC's recommendations or are you going to continue to allow people to 

use a test that I think you know to be inaccurate? 

Response: The Agency acknowledges and appreciates the comment
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Comment Number: TRANS-CHI-0030-1

Organization1:Novetas Solutions

Commenter1:Paul Mellon

Commenter Type: Other Company

Classification: Substantive

Other Sections: 10.5.1.4

Comment Excerpt Text:

First of all, let me just start by handing a couple of samples over. This is coal slag abrasives. This is what 

it looks like when you buy it. I think earlier there was a gentleman from Harsco that brought up a boulder 

size rock and was hitting it on the podium here. That's not coal slag abrasives. This is what it looks like in 

its virgin state. And when you use the product as intended, you're blasting it against metal substrates at 

about 150 psi creating tons of airborne dust. In 1997, the EPA declared that this dust in black beauty coal 

slag abrasives manufactured by Harsco is a hazardous airborne pollutant. 

One of the things that I want to talk about in regards to coal slag abrasives is that when this product is 

used after it's blasted, it falls on the ground, falls on wherever you're blasting but then it also winds up in 

the landfill. The landfill test, to allow it to get there, is called the TCLP, we've heard it talked about today 

a few times, the Toxicity Characteristic Leaching Procedure. It's a test that mimics what happens when 

you put products like that into a landfill and whether they leach into the groundwater. However, as I said, 

most times a lot of this product never makes it to a landfill. It falls on the ground, it falls in the air, falls 

on people's clothes. 

The EPA has recognized this as an issue. Page 35150 of your federal proposed rule, "EPA also notes in 

this regard that recent research indicates that traditional leach procedures (e.g., TCLP and SPLP) may 

underestimate the actual leach rates of toxic constituents from CCRs under different field conditions." 

That's what I want to talk about today, a different field condition. Last night when I got into Chicago, I 

stayed about 25 miles south of here in Elmwood, Illinois. I had a chance to do a little shopping. I went to 

the local Menards and had an opportunity to buy a 50-pound bag of coal slag abrasives for $8 a bag. 

So, what we have is a situation here, thanks to the Beneficial Use Program of 2000 which thankfully 

looks like that's going to change because I notice that abrasives are not in your current rule, but we have a 

situation where Menards, one of the largest retail chains in the United States with over 1,000 stores are 

selling coal slag abrasives to the general public, the people of Chicago who are buying this everyday. I 

would submit to you that the TCLP is not an appropriate test when children are playing in their backyard 

after Dad's gone blasting maybe the fence or his, you know, antique car. This is the effect that, you know, 

it's got to be stopped. 

So, again, I would applaud the EPA for removing coal slag abrasives from the proposed rule. I would ask 

that you also seriously look at lowering the TCLP limits

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0120-2

Organization1:

Commenter1:John Foreman

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

The industry bases its claim that coal ash is safe on a test called the Toxicity Characteristic Leaching 

Procedure, or TCLP. Yet the EPA's advisory board and the National Academy of Sciences has determined 

that the TCLP does not accurately predict the toxicity in coal ash. 

When tested with EPA's new, more accurate test, the coal ash leached up to 18,000 parts per billion, 
653

which is 1,800 times the federal drinking water standard. Selenium leached from one pond at up to 29,000 

parts billion, which is 580 times the drinking water standard

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0011-1

Organization1:Novetas Solutions

Commenter1:Paul Mellon

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

In addition, the EPA must change the use of the Toxicity Characteristic Leaching Procedure. The test is 

fundamentally flawed for the proper measurement of toxic compounds contained in unencapsulated slag 

abrasives when they are used on the land as blasting grit. 

This is the definition of the TCLP according to the EPA: The Toxicity Characteristic Leaching Procedure, 

TCLP, is a test developed by the EPA in 1990 to monitor whether certain wastes when disposed of in a 

solid waste landfill would leach certain toxic metals into ground water. The TCLP metal detection levels 

were therefore set at a level assuming the waste was actually located in a landfill. 

Page 35150 Federal Register CCR Proposed Rule: EPA also notes in this regard that recent research 

indicates that traditional leach procedures may underestimate the actual leach rates of toxic constituents 

from CCRs under different field conditions. 

Recent events also have demonstrated that, if not properly controlled, these wastes have caused greater 

damage to human health and the environment than EPA originally estimated in its risk assessments. 

I want to share with the EPA and the public here in attendance the real threat to human health and the 

environment that is happening because of the actions of some major slag abrasive companies that are 

using the EPA as a marketing tool to mislead the surface preparation industry and the American public 

about the safety of coal slag abrasives. I am submitting today a copy of the Ad that Harsco Corporation 

ran in the Journal of Protective Coatings and linings, JPCL, which is headquartered right here in 

Pittsburgh, PA. This publication sells itself as the Voice of the Society of Protective Coatings and has 

wide influence within the industry. The Harsco March Ad in the JPCL claimed that Black Beauty 

Abrasives pass the EPA drinking water test TCLP. The Ad has a large glass of drinking water and ends 

with the tag line cheers to your health. This is a totally misleading and irresponsible Ad by a 4 billion 

dollar company that claims it is one of the world's leading recyclers. 

The TCLP has nothing to do with the EPA drinking water test levels for toxic contaminants. In fact, the 

TCLP levels for some metals like Arsenic are 500 times higher for the TCLP versus the EPA standard for 

drinking water. How a company with Environmental Engineers on staff could run this type of Ad is 

astonishing. The fact the EPA and the JPCL blatantly allowed the Ad to be run all summer in print and on 

websites is just as amazing. 

Here is the actual comparison of the two tests. As you can see the levels of exposure are vastly different. 

The difference on the arsenic, cadmium and lead levels is extreme. In the case of the highly toxic 

Beryllium, the TCLP abrasive metal test does not even include it. 

When this ad ran in March JPCL, I sent a copy of the ad to the editors of the JPCL and the EPA to ask 

how Harsco could possibly be allowed to run an ad which so flagrantly misleads the public about the 

hazards of blasting with coal slag, especially given the documented studies by the EPA and OSHA 

concerning the high levels of toxic metals in the coal slag dust which is unencapsulated after blasting. 

I received no written response from the EPA or from the JPCL. The JPCL did verbally tell me that Harsco 

admitted the ad in March was misleading and would not run it again. 

In May 2010, a mere 2 issues after the March ad, Harsco again was allowed to run the exact same full 

page ad in the JPCL comparing the TCLP to the EPA's Water Drinking Standards. 
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The efforts to deny the facts do not stop with these misleading magazine or web ads

Response: The Agency acknowledges and appreciates the comment

Section 10.5.2.8 - Other characterization and beneficial use comments

Total Number of Submissions: 12

Total Number of Comments: 16

Comment Number: TRANS-ARL-0008-2

Organization1:

Commenter1:John Robertson

Commenter Type: Law Firm

Classification: Substantive

Comment Excerpt Text:

I have had some interesting conversations with individuals in this room before coming here, some of 

whom are engineers and scientists. They would have me urge you look at the science and the data. I 

agree, but I think that you should go further. I think that you need to revisit the standards by which you 

evaluate the impacts of this waste. The simple fact that it is not leaching now will not guarantee that the 

hazardous metals, which the EPA will agree are bad for human health, will eventually leach into 

groundwater if they are put over groundwater. They will eventually permeate through these sites which 

are unlined, which are currently classified as beneficially use. 

Response: The Agency acknowledges and appreciates the comment

Section 10.5.3.1 - EPA solicits comment on whether EPA should establish standards for CCRs 

destined for land placement, such as maximum/minimum thresholds, or rely on implementing 

states to impose CCR-/site-specific limits based on front-end characterization that ensures 

individual beneficial uses remain protective (35165, 35222)

Total Number of Submissions: 27

Total Number of Comments: 40

Comment Number: TRANS-LVL-0184-2

Organization1:Kentucky Resources Council

Commenter1:Tom Fitzgerald

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

First is that adoption of a program of uniform, comprehensive and appropriate minimum standards for the 

characterization and management of coal combustion wastes for reuse and disposal is the best way to 

improve the beneficial utilization of CCW and to assure protection of public health and the environment. 

Adoption of meaningful requirements for management and disposal will likely increase reliance on 

questionable and sham beneficial uses.' It is essential that you create a gatekeeper function that requires a 

demonstration that a proposed beneficial reuse is not a sham reuse that is in the nature of disposal, and 

that the waste streams be fully characterized using appropriate tests to determine the fate and transport 

mechanisms that might be associated with the end use or disposal scenario. Without a gatekeeper 

function, sham beneficial reuse that causes environmental damage will likely occur as it has here in 

Kentucky, where we grant "permits by rule" to beneficial reuses and require little or no advanced 

characterization.

Response: The Agency acknowledges and appreciates the comment
655

Section 10.5.3.5 - Other standards/regulations and beneficial use comments

Total Number of Submissions: 14

Total Number of Comments: 18

Comment Number: TRANS-DEN-0089-1

Organization1:

Commenter1:Mark Squillace

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

I want to make a point that I think is often lost in this debate about the reuse of these CCR materials. The 

problem seems to me one of market failure; that is, we have these materials that are valuable for use in 

concrete and cement and other materials that are usable in wallboard, and yet more than half of these 

materials are now simply disposed of in landfill or in impoundment. 

That's a fundamental problem, and I think that results from two things. One is that we currently don't 

impose any controls in many states on the disposal of these things, and so the externalities associated with 

that disposal are not captured by the marketplace. Hopefully these rules will fix that problem. 

But there's another really important aspect that EPA really needs to consider here, and that is the cost 

associated with mining virgin limestone materials that will be used essentially to substitute for concrete 

and for gypsum to the extent that those materials will have to be mined because they're replacing 

materials that otherwise could have been used for this purpose. 

I'd really like to suggest that -- since my time is short, that EPA, think about working with the Department 

of Transportation about coming up with some minimum content standards for federal-aid highways for fly 

ash. 

It strikes me that there's a national market that could easily be tapped and would greatly increase demand 

for fly ash in a way that would make it unnecessary to dispose of many of these materials, and I think that 

would be sort of a win-win for everybody. 

I think something similar could be done with gypsum in the context of federal construction projects 

around the nation. 

Just one last point about the -- because I don't have much time -- about the standards that you have now. I 

hope you'll look at the study that was done several years ago. I was on a national academies committee, a 

study called "Managing Coal Combustion Residue in Mines." 

There's are a couple things in that study, recommendations about how to manage CCRs, that are not 

included in the EPA recommendations, including site characterization and waste characterization. Those 

are important issues that I hope you'll consider.

Response: The Agency acknowledges and appreciates the comment

Section 10.5.4 - EPA solicits info/data on agricultural use of FGD gypsum, including use of 

historical data, impact of pH on leaching potential of metals, scope of management scenarios, 

variable and changing nature of CCRs, and variable site conditions (35165, 35222); EPA solicits 

comment relating to EPA/USDA’s agricultural use of FGD gypsum assessments/studies (35165)

Total Number of Submissions: 41

Total Number of Comments: 54

Comment Number: TRANS-CHI-0016-1

Organization1:Beneficial Reuse Management

Commenter1:Robert Spoerri

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2
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Comment Excerpt Text:

Over the last 12 years, my company has implemented hundreds of beneficial use projects and programs 

involving millions of tons of materials including byproduct from coal combustion and emission scrubbing 

systems. We've successfully implemented every one of these programs under strict standards and controls 

without risk or damage to human health and then environment. We're a green company dedicated to 

serving our customers while improving the environment. That's the reason why our employees chose to 

work here and the reason why we all feel so strongly that any actions by the EPA that will discourage 

beneficial use is a mistake. 

Beneficial use conserves the natural resources, preserves scarce landfill space, reduces CO2 emissions, 

strengthens local economies. In the case of FGD gypsum, the use in agriculture has been demonstrated to 

be an important tool to reduce nutrient runoff into sensitive watersheds making its beneficial use a 

homerun for the environment. 

We initially built our business in Wisconsin where strong effective regulations help define standards and 

procedures for safe beneficial use of byproduct materials. We follow these high standards in all the states 

where we now do business and believe such standards should be in place everywhere. We believe this can 

be done without labeling byproducts from coal combustion and emission scrubbing as hazardous or 

special waste under RCRA Subtitle C. 

From our contact with all of the participants in the beneficial use process, we know for a fact that if EPA 

determines that these materials are hazardous or special waste under Subtitle C, it will spell the end of 

beneficial use and of our company. Under a Subtitle C outcome, utilities will not provide the materials to 

us for beneficial use programs; state and local regulators will not permit us to use them; and it will be 

impossible to find project partners or customers willing to accept the materials regardless of how much 

EPA stresses their support for beneficial use. As a result, millions of tons of byproduct materials will 

unnecessarily end up in landfills, and the multiple benefits to the environment and the economy will be 

lost. 

In this debate, we have engaged repeatedly with environmental groups and others concerned about the 

risks of coal ash. We have conducted two educational workshops for environmental groups on beneficial 

use and gained an appreciation for their perspective. From this dialogue, we believe there can be a 

successful outcome from this rulemaking process, gaining strict new controls over coal ash disposal while 

preserving and encouraging beneficial use. This can be done under RCRA Subtitle D with federal 

enforcement powers or under some other auspices. 

We strongly encourage you to consider these alternatives to Subtitle C hazardous designation for the sake 

of our company, of our employees and of the environment

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0034-1

Organization1:Gypsoil

Commenter1:Ron Chamberlain

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.4.2

Comment Excerpt Text:

Gypsoil provides FGD gypsum to the agriculture industry in order to improve the quality of American 

farmland. FGD gypsum improves soil structure and balance by providing valuable calcium and sulfur 

which are both becoming deficient in many of our soils. 

Much of our agricultural land is compacted, resulting in: *erosion of our soils and nutrients, and *lower 

crop production efficiency. 

To solve the compaction problem, I have been applying gypsum to thousands of acres of Midwest 

farmland for the past nine years, and during that time I have observed an array of benefits for our farmers, 
657

their businesses and the environment. For example: 1. Our compacted soils have become garden mellow, 

rich and balanced as the natural biology flourishes and provides everything their crops need to grow and 

produce high quality, safe food. 2. As a result, we have reduced applications of chemical or petroleum 

based fertilizers by up to 90 percent. 3. Water from heavy rainfall no longer ponds or erods off the fields; 

rather it is absorbed into the sponge-like subsoil and then gently released into our waterways without 

inflicting water damage to our neighbors downstream. 4. Our watersheds are cleaner as evidenced by a 

recent study conducted by the Center for Earth and Environmental Science, a joint project of Purdue and 

Indiana Universities and others, where long-term use of FGD gypsum has influenced a significant 

reduction in phosphorus and nitrate loading into the Eagle Creek watershed which supplies the water for 

the City of Indianapolis. Adoption of FGD gypsum as a best management practice in sensitive watersheds 

across the country could clean up our waterways suffering from runoff pollution, provide us with clean 

water and make this a better world. 

State level regulations require me to analyze FGD gypsums regularly, and years of results prove to me 

that it contains no ash or other coal byproducts and is one of the cleanest and safest of all materials 

applied to our soils. 

Responsibly applied to agricultural soils, FGD gypsum contributes significantly to: * Improved, 

sustainable agriculture, and an improved environment. 

The hazardous designation of gypsum would stop this beneficial use in American agriculture, and thereby 

take away the opportunity to help the environment in so many ways. 

I ask you, please, avoid labeling FGD gypsum as hazardous waste and avoid regulating it under Subtitle C 

of RCRA

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0056-1

Organization1:Beneficial Reuse Management

Commenter1:Jeff Ulrey

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1 10.4.2

Comment Excerpt Text:

Under both proposed alternatives, impoundment ponds will go away, something which can be 

accomplished and begin almost immediately under Subtitle D of RCRA. There is no reason to make a 

hazardous waste determination to accomplish this same goal. We can get it done in approximately three 

years rather than the ten years it would take at the minimum with hazardous waste permitting delays. 

Enforcement seems to be a stumbling block that makes some folks call for a hazardous determination. 

With legislation, we should grant the power at the state or federal level to enforcement capabilities 

without a hazardous designation. 

Shutting down beneficial reuse of coal ash by adopting hazardous disposal regulations is not the way to 

jumpstart the renewable energy policy in this country and phase out coal power generation. Let's take the 

good old American ingenuity and be smarter, more creative, and more efficient than the rest of the world. 

Don't weaken this country. A hazardous waste determination will only hurt the rate payer and drive up the 

cost of goods and services if he has to use virgin materials. 

By definition, CCPs are not hazardous by the criteria that the EPA has used for decades: corrosivity, 

ignitability, reactivity and toxicity. The definition of those four categories can be found under 40 CFR 

261 Subpart C. CCPs do not qualify as a hazardous material by all the same standard scientific practices 

used for years to determine whether a material is hazardous or not. So, we have to move on from this talk. 

But whatever happens, don't let FGD gypsum use in agriculture be swept away over the fears about coal 

ash. Gypsum applications used to improve soil structure and soil porosity could quite possibly be the 

single greatest contribution for improving water quality in this country. It would be a great legacy for 
658

your children's children that your generation had the most impact on improving the quality of their water 

resources. 

And as I end, imagine the positive impact to our water quality and the condition of our water resources if 

gypsum can be allowed to be used and further research can be expanded. That can't happen if included in 

a hazardous determination. Don't let it happen!

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0057-1

Organization1:

Commenter1:Dave Myers

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

We've had a little bit different understanding of soils than most out there. We believe that the soil is a 

living system, and in that soil is microorganisms whose sole responsibility is to release nutrients to the 

crop. And with that, we definitely get increased efficiencies from applied fertilizer and other things. 

These microorganisms have to have an environment where they can thrive. And just like you and I, if that 

environment is not there, then they're going to have some problems on doing their job that they're 

supposed to. And that job is releasing nutrients to the plant. 

We have seen up to 90 percent decreases in applied fertilizer just from the use of FGD gypsum and this 

system. Gypsum helps to change soil structure, helps to change soil chemistry. We see increased water 

infiltration rates, increased oxygen rates flowing into those soils, giving those biology the oxygen they 

need in order to survive. 

As you can see, gypsum is a major part of our nutrient program. And if that is not in place, we do see 

increased amounts of applied nutrients which then ultimately will mean more filled nutrients running off 

into our watersheds and into the Gulf of Mexico. As growers of our nation's food supply, we really can't 

afford to rely on heavy amounts of applied fertilizer, and if we can get better use of our parent materials 

that are in our soil, the better off that we are as a country and we can feed our country as well as the 

world. 

So, I ask you today to not consider FGD gypsum as a hazardous substance but as a very usable tool not 

only for agriculture but also for the environment

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0105-1

Organization1:Ohio State University

Commenter1:Warren Dick

Commenter Type: Academia

Classification: Substantive

Comment Excerpt Text:

However, today I want to speak specifically about the more extensive research I have conducted on the 

beneficial agricultural uses of flue gas desulfurization gypsum that is produced when coal is burned and 

the sulfur dioxide is removed from the flue gases. During this process, a very high quality gypsum is 

produced. Sulfur is a major nutrient and a component of proteins and other molecules of life. It is an 

essential element for good crop production. With removal of sulfur from our atmosphere due to scrubbing 

of flue gases, our crops are increasing becoming deficient in sulfur that must be added back to the soil. 
659

There is no such thing as a free lunch. If we remove sulfur from the soil via harvested plant products, this 

sulfur must be replaced. We have found FGD gypsum an excellent source of sulfur for improving crop 

production. 

FGD gypsum has many benefits for soil and crops. In fact, our early country fathers, George Washington 

and Benjamin Franklin, were strong proponents of the use of gypsum in agriculture. Some benefits of 

gypsum for agriculture include: 1. Improving soils negatively impacted by sodium 2. Overcoming 

problems associated with subsoil acidity; 3. Improving aeration of soils needed for good root growth; 4. 

Improving water infiltration which is important as our Midwest climate is often deficient in rainfall 

during the months of July and August; 5. Improving the efficiency of nitrogen fertilizers for crop 

production, thus reducing nitrogen fertilizer inputs and nitrate leaching into our water bodies; 6. 

Increasing the amount of land that can be farmed using no-tillage practices, thus reducing the farmer's use 

of fossil fuels and increasing the amount of carbon that is sequestered in soil; and 7. Decreasing the runoff 

concentrations of nitrate and phosphorus. 

It is important that FGD gypsum not be labeled a hazardous material. It has been extensively studied and 

it can make a contribution to improving agricultural productivities in the United States. And it is 

important that this increased productivity continue to feed the increasing world population

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0135-1

Organization1:

Commenter1:Brooks Shanklin

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

A systems approach is important. For years, I've been using FGD gypsum as a component of this system. 

It has helped improve my profitability and improve and amend my soils. 

FGD gypsum is a wonderful byproduct of the coal industry. It is not a waste, nor should it be classified as 

such. It is a nutrient soil amendment that has a broad spectrum of positive benefits when applied in 

agricultural use to the soils. 

My growing crop needs both calcium and sulfur, and this product helps supply those two key nutrients. It 

is not toxic to my soil. It is actually improving my soil's ability to grow healthier plants for food by 

supplying nutrients and helping manage air and water movement within the soil profile. 

A measurable result I also have seen is much less water runoff on my fields as compared to my neighbors, 

even after a one to two inches of rain in a given shower. When water moves off of my field from surface 

drainage, what goes with it? Nitrogen, phosphorus, soil organic material and other nutrients. 

By applying FGD gypsum to my fields, the runoff is greatly reduced, and so is the misplacement of 

nutrient material and soil particles. It is my belief that this is good for the environment. Less soil and 

nutrient erosion aids in improving water quality downstream. 

So, the hazardous designation of gypsum would stop its beneficial use in American agriculture and 

thereby take away the opportunity to help the environment in so many ways. 

I ask you to: * Avoid labeling FGD gypsum as hazardous waste, and * Avoid regulating it under Subtitle 

C of RCRA

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0067-1

Organization1:American Coal Ash Association
660

Commenter1:Thomas Adams

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

In the EPA proposal of June 22nd, the agency raises concerns over the use of flue gas desulfurization 

gypsum, also known as FGD gypsum, for agricultural applications. FGD gypsum is not an ash. Rather, 

the material is a synthetic form of gypsum that is produced by scrubbers that are installed on coal-fired 

plants to control SOX and NOX air emissions. This form of gypsum is slightly more pure than mined 

gypsum. 

Research by the U.S. Department of Agriculture in numerous academic institutions has shown that FGD 

gypsum is safe and beneficial for use on farms which grow our food. The USDA is in the middle of an 

extensive risk assessment scheduled for completion in 2012. None of the research to date has given the 

USDA, academic institutions of the agricultural community cause for concern. 

The EPA itself has been a supporter of the use of FGD gypsum up to now. As recently as November of 

2009, the EPA has supported workshops to help promote the use of FGD gypsum by farmers. Farmers 

have found this material to be a valuable resource in chall -- in the challenges of no-till farming, soil 

erosion, and -- and water runoff, and enhancing crop growth and maturity. 

However, the June 21 proposal cast doubt on the future of the use of FGD gypsum on our farms due to 

concern over, quote, excessive quantities; that is, field applications of FGD gypsum in amounts that 

exceeds scientifically supported quantities required for enhancing soil properties and/or crop yields, end 

quote. The source of this concern is somewhat curious. What farmer is going to apply excessive amounts 

of any material that would poison the soil and crops that provide his livelihood. Such action would be 

akin to committing financial suicide. 

Reports from those who market FGD gypsum indicate the stigma of any kind of hazardous waste 

regulation for disposal of CCRs under Subtitle C would result in a rapid declivity in the use of FGD 

gypsum. Farmers are careful to use materials that are effective economically and most importantly safe. 

Markets purchasing the crops must be satisfied that those crops are not tainted in any way. Continued use 

of a product that may be considered a hazardous waste under certain circumstances is totally unacceptable 

to farmers. 

In addition, there's a great concern among those currently using FGD gypsum, that their property may 

become tainted by a hazard waste -- hazardous waste stigma, which may render that acreage of little or no 

value in resale. Farmers will not take time or make the effort to peel back the intentions or EPA 

exceptions of the new regulations. Hazardous means hazardous. And the stigma is real. 

The EPA has made a commitment to work with the Office of Surface Mines on the use of CCRs for mine 

fill applications. We applaud and encourage this effort. And we urge the EPA to take a similar approach 

with the use of FGD gypsum, and set aside this beneficial use for a joint effort with the U.S. Department 

of Agriculture. USDA has the science. We urge you to turn to the experts in your sister agency and use 

their work in consideration of the beneficial use of FGD gypsum on the farms of America. However, first 

and foremost, you must avoid a Subtitle C regulation of any kind to keep the stain of a hazardous waste 

rule off of the food we eat

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0074-1

Organization1:Full Circle Solutions

Commenter1:Tyler Farrar

Commenter Type: Beneficial User

Classification: Substantive
661

Comment Excerpt Text:

It is my job to educate farmers on all the wonderful benefits of CCRs, specifically with FGD gypsum. 

Some of the benefits are increased crop yields, improved soil quality, control of erosion from soil runoff, 

and the limited movement of fertilizers and chemicals into nearby streams. 

The chemical constituents of CCRs are commonly found in many everyday products and natural 

materials, such as soil, rock, and other parts of the earth's crust. Agriculture represents the largest 

untapped potential market for beneficial uses of this valuable resource. 

I have two specific issues I would like to address. The first one is the extensive research that the USDA, 

EPA, and state universities have done with CCRs and FGD gypsum. Decades -- decades of research has 

been done to show the functional benefits of FGD gypsum. 

FGD gypsum substitutes for the use of virgin materials. It is applied at appropriate agronomic rates, and 

the use of which meets applicable standards. 

Designating CCRs as hazardous or toxic is counter to scientific evidence, and would seriously limit the 

current use of these materials. EPA and other governing bodies have determined that they are

nonhazardous, and regulation under Subtitle C is unwarranted. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0118-1

Organization1:Environmental Integrity Project

Commenter1:Jeff Stant

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

We want there to be much more recycling of coal ash in America, which is precisely why we want the 

regulation of coal ash to occur under Subtitle C of RCRA, and urge the EPA to take that action. 

I'm -- I'm here to talk -- to respond to some -- a number of claims made previously about the beneficial 

impacts and the lack of any adverse impacts from the use of one component of coal combustion waste, 

flue gas desulfurization gypsum, a small component now, but it's a burgeoning part of the -- of the CCW 

waste stream we expect in the future. 

We've heard no data presented in any of these statements or even sum -- or summarized in the Chicago 

hearing, where most of them were made, to support these contentions, and have yet to see a single set of 

data that credibly demonstrates no adverse impacts to surface waters from the use of gypsum in 

agriculture, and are unaware of any that EPA has been reviewing. 

We're aware of recent leaching test data on 20 FGD gypsums, on the other hand, evaluated by US EPA's 

Office of Research and Development in it -- in its report, where a -- a -- test method that -- with greatly 

improved capability to predict the leaching behavior of gypsum in the -- in the environment was -- was 

used on them. 

When it was, these FGD gypsums were found to leach selenium at up to 1600 micrograms per liter. That's 

16 times over the threshold for hazardous waste. They leached thallium at 1100 micrograms per liter. 

That's 550 times higher than the primary drinking water standard; cadmium at 375 micrograms per liter, 

74 times higher than the primary drinking water standard; arsenic at up to 1200 micrograms per liter, 120 

times higher than the primary drinking water standard; and antimony at up to 330 micrograms per liter, 55 

times higher than the primary drinking water standard. 

They also leached molybdenum and boron at 45 times over their -- their federal health advisories for -- for 

those substances in drinking water. 

The potential for FGD gypsum is to leach high concentrations of metals and other constituents at disposal 

sites ap -- is appearing to be also borne out by leachate and monitoring data at several CCW sites and the 

reports that we've presented to EPA this year. 

Ground water under the gypsum storage area at the Big Ben plant in Tampa, Florida has had boron 
662

concentrations 40 times the state's standard; iron, 66 times the standard; manganese, 11 times; sulfate, 4 

times; and TDS, 5 times. Arsenic and thallium under other FGD disposal units at that site are at 11 and 8 

times higher than -- than their drinking water standards. 

The Caledonia landfill in southeast Wisconsin has had molybdenum at levels up to 375 times over the 

federal health advisory. You have drinking water wells contaminated there with molybdenum, as well. 

Therefore, with this kind of evidence -- there's also two Kentucky sites that have gypsum that have 

arsenic problems. 

We would urge EPA not to -- to -- to take gypsum out of this regulation and to designate it as a -- a -- a 

special waste or a hazardous waste under Subtitle C of RCRA

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0037-1

Organization1:Gypsoil

Commenter1:Ron Chamberlain

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

I would like to address FGD Gypsum. I've been working with crops and soils for 39 years, and I've been 

working for the last nine years with FGD Gypsum from power plants across the midwest that produce the 

materials for exempting specifications for use in agriculture. 

I'm a certified crop advisor and currently hold the position of director of economy for the Gypsoil 

Company, a small midwest business with a goal of providing sustainable solutions to American 

agriculture. Gypsoil provides FGD Gypsum to the agriculture industry in order to improve quality 

American farmland. FGD Gypsum improves soil structure and balance by providing valuable calcium and 

sulfur, which are both becoming insufficient in our current farm soils. 

Much of our agricultural land is compacted resulting in erosion of our soils, nutrients and lower the 

production of efficiency. To solve the compaction problem, I've been applying Gypsum to thousands of 

acres of negligence farmland for the past nine years, and during that time, I have observed an array of 

benefits for our farmers, their businesses and the environment. For example, our compacted soil can 

become very garden, mellow, rich and balanced as a natural soil biology flourishes, and provides 

everything that crops need to grow and produce high quality safe food. As a result, we have reduced 

applications of chemicals and petroleum-based fertilizers by up to 90 percent. Water from heavy rainfall 

no longer ponds or erodes off of the fields, rather it is absorbed into the spongelike subsoil and then 

gently released into our waterways without inflecting water damage to our neighbors downstream. Our 

Gypsum farmer customers are enjoying more efficiency from their land laboring inputs. Our watersheds 

are clearer as evidenced by the recent study conducted by Center for Earth and Environmental Science, a 

joint project from Purdue University and Indiana University, where long term use of FGD Gypsum has 

influenced a significant reduction in phosphorus and nitrate coating to the Eagle Creek Watershed, which 

supplies water to the City of Indianapolis, Indiana. Adoption of FGD Gypsum is the best management 

practice in sensitive watersheds across the country to clean up our waterways suffering from runoff 

pollution provides us with clean water and make this a better world

Response: The Agency acknowledges and appreciates the comment

Section 10.5.5 - Other safety and beneficial use comments

Total Number of Submissions: 53

Total Number of Comments: 67
663

Comment Number: TRANS-KNX-0042-2

Organization1:

Commenter1:William Wilson

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

And finally, regarding the beneficial use part of the Subtitle C, there should be a comprehensive

investigation of how coal ash is being reused. People can say it's safe all day long, but we do not know the 

potential long-term effects of leaching from wallboard and concrete, bricks. These uses that are 

environmentally benign should continue. Those that pose a threat should be reviewed to determine any 

and all potential risks to our health.

Response: The Agency acknowledges and appreciates the comment

Section 10.6.1 - EPA solicits comment on whether incentives could be provided that would increase 

amount of CCRs beneficially used and comment on specific incentives EPA could adopt that would 

further encourage beneficial use of CCRs (35222)

Total Number of Submissions: 16

Total Number of Comments: 16

Comment Number: TRANS-CLT-0006-2

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 10.6.2

Comment Excerpt Text:

As for the position that higher disposal costs will automatically lead to greater recycling rates, please 

consider history. In 2000, the recycling rate for coal ash was 30 percent. In 2008, it had increased to 44 

percent; a 50 percent increase in less than a decade. Did the cost of disposal increase during that time? 

No. So what was responsible for the dramatic increase in recycling rates? 

The answer is, in 2000 the Environmental Protection Agency issued its final regulatory determination that 

concluded coal ash does not warrant regulation as a hazardous waste. That sent a clear signal to 

producers, marketers and users of ash who began to invest more in the infrastructure necessary to support 

recycling. In 2002, the Environmental Protection Agency accelerated this effort by creating the Coal 

Combustion Products Partnership, or C2P2 program, to actively promote recycling as a preferred 

alternative to disposal. 

Sadly, EPA has now reversed this trend by creating a new era of regulatory uncertainty and by stepping 

back from its visible support for recycling. 

The EPA should enact tougher coal ash disposal regulations. But it should do so without unnecessarily 

stigmatizing coal ash as a hazardous waste.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0018-1

Organization1:

Commenter1:Rafic Minkara

Commenter Type: Private Citizen
664

Classification: Substantive

Comment Excerpt Text:

Many are planning dry conversation projects and to do away with ponds. The EPA should work with the 

utilities and the beneficial use industry to increase utilization. 

C2P2 was a good start. EPA and the federal government can do more, a lot more to increase beneficial 

use. For example, power plants air regulation should minimize the impact on CCP quality. Another 

example, Congress can provide tax and other financial incentives for resource conservation and recovery. 

Carrots are more effective than sticks.

Response: The Agency acknowledges and appreciates the comment

Section 10.6.2 - EPA seeks comment on other suggestions on how EPA might promote beneficial use 

of CCRs (35187)

Total Number of Submissions: 13

Total Number of Comments: 14

Comment Number: TRANS-CLT-0006-2

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 10.6.1

Comment Excerpt Text:

As for the position that higher disposal costs will automatically lead to greater recycling rates, please 

consider history. In 2000, the recycling rate for coal ash was 30 percent. In 2008, it had increased to 44 

percent; a 50 percent increase in less than a decade. Did the cost of disposal increase during that time? 

No. So what was responsible for the dramatic increase in recycling rates? 

The answer is, in 2000 the Environmental Protection Agency issued its final regulatory determination that 

concluded coal ash does not warrant regulation as a hazardous waste. That sent a clear signal to 

producers, marketers and users of ash who began to invest more in the infrastructure necessary to support 

recycling. In 2002, the Environmental Protection Agency accelerated this effort by creating the Coal 

Combustion Products Partnership, or C2P2 program, to actively promote recycling as a preferred 

alternative to disposal. 

Sadly, EPA has now reversed this trend by creating a new era of regulatory uncertainty and by stepping 

back from its visible support for recycling. 

The EPA should enact tougher coal ash disposal regulations. But it should do so without unnecessarily 

stigmatizing coal ash as a hazardous waste.

Response: The Agency acknowledges and appreciates the comment

Section 10.6.3 - EPA solicits data/info on GHG benefits from existing and potential new beneficial 

uses of CCRs (35160, 35222)

Total Number of Submissions: 31

Total Number of Comments: 31

Comment Number: TRANS-CHI-0218 -1

Organization1:National Ready Mixed Concrete Association

Commenter1:Richard DeBoer

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:
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With regard to fly ash, the ready mixed concrete industry is the largest beneficial user. Surveys of ready 

mixed concrete producers show that over 55 percent of all ready mixed concrete contains fly ash.

Fly ash is used in combination with Portland cement to impart the following benefits to concrete: 1. 

Increased durability and service life of structures; 2. Reduction in waste sent to landfills' 3. Reduction in 

raw materials extracted, energy for production, and air emissions including CO2; and 4. Lower concrete 

material costs.

While the concrete industry currently uses about million tons of fly ash annually, it is estimated that the 

concrete industry could increase its current use to more than 30 million tons per year by 2020, resulting in 

less fly ash going to landfills and reducing the concrete industry's carbon footprint by 20 percent.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0110-2

Organization1:University of Kentucky Center for Applied Energy Research

Commenter1:Tom Robl

Commenter Type: Academia

Classification: Substantive

Comment Excerpt Text:

The critical part of this is that the reduction of the CO2 from Portland Cement, which is responsible for 

5% of all manmade emission, is one of the great environmental challenges our time. Coal combustion 

products are critical for their ability to displace Portland Cement in -- in -- in concrete. This is of 

particular importance, as I know of no other material that can do that. The US EPA has now assumed 

authority over regulating CO2 as a primary pollutant. Adopting result -- adopting rules that result in 

increased CO2 production which would make the agency a -- a primary polluter. 

Response: The Agency acknowledges and appreciates the comment

Section 11.1 - EPA solicits comment on whether regulatory approaches should be established 

individually for the four Bevill CCR wastes (fly ash, bottom ash, boiler slag, and FGD sludges) 

when destined for disposal (35221) and/or whether regulatory oversight should be equally applied 

to each of main four CCR types when destined for disposal given differences in mobility of 

hazardous metals between types (35139)

Total Number of Submissions: 49

Total Number of Comments: 68

Comment Number: TRANS-CLT-0007-1

Organization1:Carolina Stalite and Johnson Concrete

Commenter1:Jerry Liner

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 5.3.2

Comment Excerpt Text:

The coal ash different byproducts must call for different regulations based on the material itself and the 

end use. The real issue at hand for this group of professionals and manufacturers is the bottom ash 

material, having the potential of being a health and safety concern when used in the manufactured 

cement- type products. 

The bottom ash material does not have construction standards such as ASTM like fly ash. While fly ash is 

contained in the cement paste when used, bottom ash is not contained when used as an aggregate to 
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manufacture concrete block and other manufactured cement products, leaving the waste material exposed 

on the surface for leaching. Please review the pictures submitted. 

Unlike fly ash that is used at a very small amount by percentage of the cement weight, the bottom ash is 

used at 65 percent-plus of total weight of mix of manufacturing concrete block, making a product that we 

believe will release the hazardous materials. 

As EPA reviews all of the collected information, we would like to encourage the additional regulations 

that sets controlled standards on the reuse and non-use of the reused materials based on the type of waste 

material and how it may be used. We all remember the Asbestos issues and how long it took to show its 

ugly head. Let's not allow the bottom ash waste material to gain ground in construction products and 

spread and repeat this type of history.

A commonsense approach to the big picture of the coal ash byproducts regulations could be considered as 

submitted with this statement: One, regulate the pits. Regulate the use of fly ash. Regulate bottom ash as a 

hazardous material that cannot be used in concrete block, and regulate the transportation of all the 

materials.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0051-1

Organization1:Boiler Slag Consortium

Commenter1:Sean Todd

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

My name is Sean Todd and I'm here on behalf of the Coal Boiler Slag Consortium. And we are here to 

advocate a principle that previous speaker just referred to as well as I think many Sierra Club members 

could also agree to and Interfaith Power and Light members can also agree to, and that's to let science 

drive the policy. If a byproduct of material meets the technical criteria of hazardous waste then classify it 

and regulate it as such. If that byproduct or material does not meet that technical definition, then don't 

classify or regulate it as a hazardous waste.

I represent the boiler slag consortium. If you have shingles on your roof, on your home, there's an 80 

percent chance that you have boiler slag on your house. 80 percent of all shingles in this country contain 

boiler slag. Boiler slag is different chemically and physically than other types of coal combustion 

byproducts; different than fly ash, bottom ash, and flue gases -- it's a sulpherization by-product. It is 

collected at the bottom of a furnace. It's quashed with water and thereby vitrified -- meaning glassified. 

Boiler slag is inert. It's environmentally benign and has at most a technical hardness of 6-plus. It has 

extremely low leachability rates. It is environmentally benign.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0027-1

Organization1:

Commenter1:Joel Leventhal

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Coal averages about 10 percent ash. I'm going to say a few sort of geochemical things, but maybe it's time 

to say that. Coal ash is not dirt or soil. Coal ash is quite varied. Although the major and minor minerals 
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are often similar to rock or dirt, the trace minerals and trace elements are not. 

In addition to that, different coals are different. Some coal ash is very -- is much higher in trace elements 

than others. For example, coals that are high in pyrite -- that's iron pyrite or iron sulfide -- generally have 

higher amounts of toxic elements than coals that are low in pyrite. 

Pyrite will often range from 1 to 3 percent. So with coal ash being 10 percent of coal and pyrite being 1 to 

3 percent of coal, you can see that this is not normal soil or dirt. 

The trace elements may differ in abundance by a factor of 50 or more. So there's good coal ash and bad 

coal ash. I mean, that's sort of swinging it in funny ways. Elements such as vanadium, molybdenum, and 

germanium are often enriched in the coal organic matter whereas elements such as iron, cadmium, zinc, 

mercury, arsenic, and selenium are enriched in the pyrite. 

When the coal is burned, the CO2 leaves, but everything else stays behind. All those trace elements are 

still there. So they don't go away. They're around forever. The coal ash is then -- depending on what 

happens to it, some of the trace elements are -- are subject to leaching, and some of them could be 

detrimental to people and the environment. 

Not even all coal -- even coal ash is not the same from the same coal. The bottom ash and the fly ash are 

quite different chemically often, and their trace and toxic elements are different by a factor of at least 15 

in some cases. So, again, unfortunately, these things all get mixed together and people just -- you just say 

"coal ash." 

Making one rule to fit all types of coal ash, both fly ash and bottom ash, seems like a gross oversimplification. One rule may not fit all, but erring on the side of long-term public health and 

environmental health is a reasonable choice. 

Because these chemical elements are around forever and can be leached forever, if they're near people and 

near water supplies, you've got a problem. If they're far away, they're not. 

I'm certainly in favor of recycling, and some coal ash that's clean enough and proves that it's clean enough 

and can't be -- and can't have elements leaching out of it should have some kind of a waiver, but in 

general I'm -- I'm in favor of Subtitle C so that we have, in general, good, real regulation but some way 

for clean stuff to be opted out and recycled

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0043-1

Organization1:Boiler Slag Consortium

Commenter1:Sean Todd

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

All coal combustion residues are not created equal or at least not environmentally equal. There is flue gas 

desulfurization material, bottom ash, fly ash, and boiler slag. 

Boiler slag is created at the bottom of the furnace and is quashed with water, making it inert, very low 

leachability, a Mohs hardness of 6 plus, and environmentally benign. 

Two of our speakers earlier today, retired geochemist Ph.D., Dr. Joel Leventhal, said, Don't lump all

hazardous waste materials into the same category. Another Ph.D. said don't condemn all ashes to be 

hazardous if they are, indeed, different. 

Boiler slag is different. It has different chemical and physical properties than other coal combustion 

residues. 

I would like to directly address some allegations that were made at the Arlington, Virginia, meeting on 

Monday, specifically regarding unencapsulated use of boiler slag. 

It was said there that the abrasive application of boiler slag released harmful hazardous waste airborne 

pollutants. We would like to submit to the public docket, which we will do in the Dallas meeting, an 
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independent third-party study that shows this to be factually inaccurate. And we'd be happy to supply that 

to the docket and to the -- to the written comments, an independent third-party laboratory in Minnesota. 

I just encourage EPA to look hard at the scientific data; that it doesn't make sense nor is it effective public 

policy to lump in environmentally benign boiler slag with other -- other material that may be or may not 

be hazardous waste.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0025-1

Organization1:Boiler Slag Consortium

Commenter1:Sean Todd

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

It is essential for EPA and others to understand that there are different types of coal combustion residuals. 

Boiler slag is only one of them. It is, however, only 1% by volume of CCRs, but over 90% is reused and 

recycled. Over 90% is used in abrasive applications, roofing shingles, roads, and building materials. 

No slag is stored in impoundment ponds such as the one in Kingston that was breached in that terrible 

tragedy. Boiler slag is collected and used in the economy, over 90%. How is it made? Boiler slag is made 

at the bottom of the furnace in wet bottom ash boilers. It's vitrified when it's quashed with water. So it's 

bound at the molecular level. All of it is inert material -- it is inert, environmentally benign material. 

Again, those heavy metals are bound at the molecular level. 

We have three third-party laboratory independent analytical studies which we have been submitted for the 

record. By way of example, mercury has found to have in our finds the smallest particle size, less than.01 

milligram per liter mercury concentration. The threshold level for -- or action level for EPA action is.1 

milligram per liter. So that's an order of magnitude lower than your threshold level. That's just from 

mercury.

So our science is our best friend in this rule- making for boiler slag. We're being lumped in with other 

types of CCRs. We believe that, you know, for structural integrity and engineering requirements -- are a 

good thing for impoundment ponds. Our product is not in any impoundment ponds. But the chemical 

constituents and the physical characteristics of boiler slag do not require at le -- in the least, Subtitle C 

RCRA regulation. In fact, boiler slag should be exempt as a protective status for -- for its beneficial reuse. 

This is an apples and oranges case. Good public policy uses the right and appropriate tool for its goals and 

objectives. Do not use a sledgehammer when a surgical knife is -- is a better tool. Thank you for your 

time. Thank you for the extensive opportunities for comments. And we do encourage the protective status 

exemption for boiler slag for beneficial reuse. 

Response: The Agency acknowledges and appreciates the comment

Section 11.2.1 - Combination approach regulating CCRs managed in SIs under Subtitle C and 

CCRs managed in LFs under Subtitle D: EPA solicits comment on alternative approaches (35220-

35221)

Total Number of Submissions: 10

Total Number of Comments: 11

Comment Number: TRANS-CLT-0039-2

Organization1:BlackRock Engineers

Commenter1:Gary Ahlberg
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Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

I'm not really here to speak on the pond issues. I think that's a complicated issue for the regulations where 

NPDES regulations manage the wet waste and solid waste regulations here in North Carolina govern the 

solid requirements or the dry requirements for those facilities. So it certainly is a challenge. I think the 

regulators within the solid waste group within Subtitle D program have the experience, the staff 

experience, and technical resources to evaluate engineers' designs for solutions for these facilities. So I 

don't think we should establish design standards that do not include alternatives and equivalent 

demonstrations. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0117-2

Organization1:

Commenter1:George Hyfantis

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

The point of this limited discussion is that most of the CCRs are nonhazardous according to the TCLP, 

but sometimes they are. Our regulatory strategy ought to err on the side of safe disposal. The challenge 

for EPA is choosing between your two options, and choosing between your two options is balancing the 

need to handle the CCRs in an environmentally-protective manner while still allowing the beneficial use 

of these wastes to continue without chemically analyzing every single batch of waste produced. 

In my professional opinion, we cannot continue to allow CCRs to be disposed of in ponds or piles along 

rivers. CCRs should be disposed of in lined landfills with leachate collection systems using the design 

standards of Subtitle D. 

The siting of these landfills would similarly follow the siting requirements of Subtitle D, which means 

they should not be near rivers and away from population centers. 

The disposal of CCRs must come under regulatory authority of EPA and the states. In order to 

accomplish this, your options suggest that the regulatory framework of RCRA under Subtitle C is 

necessary. This is the regulatory framework chosen. 

I believe that EPA should designate CCRs as a special waste. A special waste designation would allow 

for the continued beneficial use of CCRs, and will allow for the remaining material be to -- to be disposed 

of Subtitle D landfills. This requirement for a double liner and leachate collection system would be 

overkill for CCRs. Thank you for your time. 

MS. DEVLIN: Thank you. 

MR. HYFANTIS: The requirement for a double liner and leachate collection system would be "overkill" 

for CCRs while a single liner and leachate collection system would provide adequate environmental 

protection. 

Response: The Agency acknowledges and appreciates the comment

Section 11.2.5 - Continue to rely on state CCR regulation under existing/new state authorities with 

no federal regulations, but EPA could rely on RCRA §7003 imminent and substantial 

endangerment authority if problem occurs: EPA solicits comment on this approach, including how 

it would be protective of HHE (35221, 35223)

Total Number of Submissions: 90

Total Number of Comments: 127
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Comment Number: TRANS-ARL-0011-1

Organization1:Virginia Department of Environmental Quality

Commenter1:Jeffery Steers

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

While the Commonwealth acknowledges that improvements in the management of CCR are needed, such 

regulatory changes are best left to individual states. 

Virginia has a strong solid waste program that regulates the management of coal ash as an industrial 

waste under this program. Virginia's regulatory -- Virginia's regulations provide requirements for CCR 

management, including the appropriate criteria for disposal units while also allowing for its beneficial 

reuse in a manner that is protective of human health and the environment. The Commonwealth recognizes 

the need to continuously enhance its regulations and has been actively doing so even prior to EPA's 

proposed regulations. 

Virginia has concerns with EPA's proposals regarding the regulation of CCR, and again we believe the 

regulation of this material is best left to the states.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-ARL-0011-3

Organization1:Virginia Department of Environmental Quality

Commenter1:Jeffery Steers

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

As recognized in EPA's proposal, more research is needed to truly understand the impacts that CCRs may 

have in a landfill setting such as the effect of compacting material and the ability of metals to leachate. 

Virginia recommends that EPA, as it has successfully done in many of its programs, develop guidance for 

the management of CCR through the science, to continuously improve research, and to work closely with 

the organizations such as ECOS and ASTSWMO to develop an effective CCR program that can be 

implemented at the state level.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0026-1

Organization1:Georgia Power

Commenter1:Chuck Huling

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Second, Georgia Power believes that State agencies should regulate CCBs. EPA's own conclusions in 

1993 and in 2000 recognize that states should continue to be the primary regulators of CCBs. Georgia and 

other states have operational experience and have provided effective oversight of CCBs through 

wastewater programs, landfill disposal, closure of surface impoundments, and beneficial reuse. 

Response: The Agency acknowledges and appreciates the comment
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Comment Number: TRANS-CLT-0040-2

Organization1:Florida Electric Power Coordinating Group

Commenter1:Carl Eldred

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 4.1.3

Comment Excerpt Text:

Of the options presented in the proposed rule the FCG prefers the Subtitle D Prime option. In light of the 

unique factual and regulatory circumstances present in each state however, EPA should first obtain 

legislative authority to implement state approval processes, or at least at a minimum include in the 

Subtitle D options the ability for states to seek equivalency determinations. For many years Florida 

successfully implemented an approved Subtitle D program that differs from some of the requirements of 

part 258. The same legitimate reasons for Florida's approved alternatives, the parts 258 requirements will 

also apply to the proposed Subtitle D regulations for CCRs. However, as written, there is no process by 

which Florida can seek those alternatives. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0061-2

Organization1:Luminant

Commenter1:Usha Turner

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

The regulation of CCRs under Subtitle C would not only strip states of the ability to cost effectively 

regulate CCR disposal practices and potentially cost utilities like Luminant hundreds of millions of 

dollars, but would also eliminate the use of CCRs and the businesses that utilize them, again, as you've 

heard here today several times. 

Any hazardous waste-like program that directly -- excuse me. Any hazardous waste-like program would 

directly or indirectly result in the elimination of the recycling markets for CCRs, increase the use of virgin 

natural resources, contribute to negative environmental benefits, job losses, and increase in electricity cost 

and energy use.

In summary, Luminant, in addition to over 200 members of the U.S. Congress, 43 states, and numerous 

federal agencies strongly oppose the regulation of CCRs as a hazardous material, and recommends that 

EPA continue to allow states to run their own programs like the model state of Texas that you've heard 

about here today.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0076-3

Organization1:Luminant

Commenter1:Julie Prejean

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

In summary, Luminant strongly opposes the regulation of CCRs as a hazardous material under the RCRA 

Subtitle C hazardous waste program and recommends that EPA continue to allow states to run their own 

programs. 
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Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0081-3

Organization1:Luminant

Commenter1:Barry Boswell

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

In summary, Luminant strongly opposes the regulation of CCRs as a hazardous material under the RCRA 

Subtitle C hazardous waste program and recommends that EPA continue to allow states to run their own 

programs.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0092-4

Organization1:Office of the Texas Comptroller of Public Accounts

Commenter1:David Schanbacher

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

In short, proper regulation at the state level is a more effective vehicle for coal ash reg -- coal ash 

regulation than a one-size-fits-all national program. The nation's economy should not be made to pay for 

the mistakes at a single site

Response: The Agency acknowledges and appreciates the comment.

Comment Number: TRANS-DAL-0103-2

Organization1:Luminant's Three Oaks Mines

Commenter1:James Birkhead

Commenter Type: Electric Utility Company

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

In summary, Luminant, in addition to over 200 members of the U.S. Congress, 43 states, and numerous 

federal agencies strongly oppose the regulation of CCRs as a hazardous material under RCRA Subtitle C 

hazardous waste program. And we recommend that the EPA continue to allow states to run their own 

program. Thank you for this opportunity to comment. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0016-4

Organization1:National Ready Mixed Concrete Association

Commenter1:Terry Jones

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

As you can tell from my comments, my company, which I represent, the state associations I'm a member 

of, and the office of Chairman of the Operations, Environmental and Safety Committee for the National 

Ready Mixed Concrete Association, are not in favor of either proposals, C or D. 
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Let's manage the resource that we have, eliminating new rules changes and keep our hard working people 

employed. New rules create unneeded cost and unnecessary confusion. 

I would like to thank you for your time and consideration regarding this important issue. 

Response: The Agency acknowledges and appreciates the comment

Section 11.3 - New Approaches to Federal CCR Regulation Suggested by Commenters

Total Number of Submissions: 46

Total Number of Comments: 51

Comment Number: TRANS-ARL-0134-1

Organization1:Center for Environment, Commerce, and Energy

Commenter1:Norris McDonald

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

The Center recommends a hybrid of the two proposed rules as the final rule. Coal combustion residuals 

should be ruled as hazardous if it is not directed to beneficial reuse. The Center is taking the best from 

both proposals and combining them into a rule that will both stimulate beneficial reuse while policing 

indiscriminate warehousing of such waste that can then pose a risk to surrounding communities. The 

Center recommends that beneficial reuse should include utilizing coal ash as a substitute for Portland 

Cement in the production of concrete. Beneficial reuse should exclude the use of CCR in residences. Our 

proposal should also eliminate the shipment of residuals to landfills in vulnerable communities. I'll go 

through the comparison now, the fusion of the two other proposals. 

The Center combines the two proposals by making the effective date one year after the final rule is 

promulgated for most provisions requiring state and local enforcement; the corrective action being selfimplementation combined with monitoring by states and the EPA; no requirement for financial assurance 

or permit issuance; requirements for storage including containers, tanks and containment buildings 

pending reuse; reinforced impoundments receiving CCRs for surface impoundments built before the rule 

is finalized; phase out new surface impoundments and install composite liners for newly hazardous CCR 

for surface impoundments built after the rule is finalized; no liner requirements but require groundwater 

monitoring for landfills built before the rule is finalized; liner requirements and groundwater monitoring 

for landfills built after the rule is finalized; and requirements for closure and post-closure care monitored 

by states and EPA.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0099-3

Organization1:Lafarge North America

Commenter1:Jim Rosenmerkel

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

EPA should adopt the Wisconsin administrative NR 538 as a national model for monitoring, encourage 

every state to enforce these rules, and continue with effective and environmentally sound construction 

practices.

Response: The Agency acknowledges and appreciates the comment
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Comment Number: TRANS-CLT-0085-2

Organization1:

Commenter1:Darrell Wilson

Commenter Type: Private Citizen

Classification: Substantive

Other Sections: 3.1.2

Comment Excerpt Text:

I recently became aware of the August 9, 2010 Congressional Research Service report, "Regulating Coal 

Combustion Waste Disposal: Issues for Congress." In this report they recommend Congress amend the 

Resource Conservation and Recovery Act to create a new Subtitle K that would specifically address 

issues unique to the management of coal combustion waste. This appears to me to be the most sensible 

approach. I think everyone here would agree that insuring safe disposal of coal ash should be and is what 

everyone wants. How we achieve that is what is important. To label fly ash as a hazardous product gives 

the EPA the right to regulate disposal but at a cost that is much too high to everyone involved. Regulation 

under Subtitle C will result in significant increases in the cost of electric power created using coal as a 

fuel source. 

Since we won't be getting rid of coal-powered power plants anytime soon, we should concentrate on 

making it as safe as possible and also making sure we continue to utilize the resulting coal ash residue in 

as many recycling efforts as possible. A Subtitle C designation will not help achieve these goals. Work 

with Congress to correct RCRA, to do what is right for everyone. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0099-6

Organization1:Advanced Wall Technologies (AWT), LLC

Commenter1:Carl Dudding

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 10.3.2.2

Comment Excerpt Text:

Most importantly, under the proposed EPA regulations, no large structural fill applications are considered 

as beneficial use, even if the material is fully encapsulated by geomembrane or other containment 

methods. 

At the very least, we would suggest as an alternative a Subtitle D designation for management of CCRs 

with fully encapsulated structural fills considered as beneficial reuse and with properly engineered 

controls.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0113-2

Organization1:MACTEC Engineering and Consulting

Commenter1:Guy Winebrenner

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

Regardless of whether the CCR storage regulations are developed under Subtitle C or Subtitle D, the 

ensuing regulations should provide performance rather than prescriptive requirements to be met. By 

establishing performance standards to be met, a framework allowing for innovation, incorporation of the 
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developing best practices and site-specific solution is promoted. This approach can result in solutions that 

are not only more cost-effective, but can also provide better protection of property and the environment in 

view of the specific site considerations encountered.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CLT-0122-1

Organization1:

Commenter1:Suzanne Butler

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Now under current regulations the only way the EPA can have oversight over this is to classify it as a 

class C. I don't want to use the word "overkill" but I believe we will be safe with a Subtitle D, if we can 

have EPA oversight. So basically I'm saying I don't like either of the options being presented here today. I 

would like to see a middle ground where there can be EPA oversight because I believe when we hear 

private citizens and regulators saying that they can't get anything done on the state level I believe them. 

But I don't believe we need to overreact to that either so I want to see EPA oversight with class D 

Subtitle. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0025-2

Organization1:Sunflower Electric Power Corporation

Commenter1:Paul Reynolds

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

While a Subtitle D regulatory approach is the preferred option, there's a need for some tweaking. The 

proposed regulations do not provide sufficient flexibility to consider alternative liners, leachate 

management methods, or final covers to accommodate variables in local conditions such as soil types, 

depth to groundwater, distance to surface water, and annual precipitation. The prescriptive one-size- fitsall approach unnecessarily ties the hands of regulators. 

We believe the best approach nationally is to develop Subtitle D regulations, including a required 

permitting program that can be administered by states, with sufficient flexibility to consider local 

conditions. While this approach would likely require a supplemental proposal, it will ensure EPA has 

enforcement authority it desires while avoiding the unnecessary and adverse implications of Subtitle C. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0033-1

Organization1:

Commenter1:Paul Landeman

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

The proposed Title C is a start, but it is inadequate because it does not require rapid closure of dangerous 

ash ponds such as the one in Roane County. It does not require timely investigation of all toxic coal ash 

dumps. Title C does not require clean-up of all contaminated coal ash sites. It does not require polluters to 
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ensure the healthy air and water of communities such as Roane County near coal ash ponds. 

I ask the EPA to regulate coal ash more strongly than Title C and require more oversight

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0088-2

Organization1:JEA

Commenter1:Matt McClure

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Excerpt Text:

Regarding the Subtitle D or D prime approaches, JEA would point that the one size fits all national 

standards being proposed do not allow enough flexibility for utilities to operate efficiently; and using 

corporate websites as an enforcement tool would seem to be a path toward unproductive litigation. More 

flexibility is needed in the framework of the regulations for equally protective but different liner systems, 

including dual-synthetic membrane systems; alternative groundwater monitoring programs in zones of 

discharges; and processing practices, such as slurry systems, where the CCRs react and solidify within a 

short time of conveyance. 

Additionally, the Subtitle D approach should not penalize states like Florida that are already regulating 

the beneficial use of CCRs, as well as the disposal CCRs at new facilities under a qua -- quasi Subtitle D 

approach already. 

JEA urges EPA to more carefully consider a statutory path toward a regulatory framework tailored 

specifically to CCRs to follow neither Subtitles C nor D. JEA believes that rather than in using a 

somewhat overreaching approach, there would be congressional support to provide EPA the authority to 

approve state programs that meet EPA parameters, allowing states like Florida to manage the issue in a

way that best serves its citizens while retaining enforcement authority for those states that do not. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0098-3

Organization1:SEFA Group

Commenter1:Mark Casey

Commenter Type: Beneficial User

Classification: Substantive

Other Sections: 4.1.1

Comment Excerpt Text:

There's no doubt that this issue has bum -- become political, and politics is about compromise. Just 

recently the Congressional Reacher -- Research Service has suggested that Congress add a new Subtitle K 

to federal waste law to give EPA enforcement authority over coal waste rules without declaring the waste 

hazardous and to regulate beneficial reuse of coal ash. That would be a compromise. 

This new proposal, as well as Subtitle D, would take away the stigma associated with the hazardous label, 

and help preserve one of America's greatest all-time recycling success -- success stories.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0132-1

Organization1:Greenpeace

Commenter1:Robert Gardiner
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Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Coal ash should be treated as a special waste under subtitle C of RCRA. With that said, sound science 

dictates that we immediately shut down all coal ash ponds and unlined landfills until best available 

science is utilized to test the toxicity of these sites; immediately investigate all coal ash dump sites for 

potential leaching and other structural issues; immediately clean up all sites contaminated by coal ash 

when such contamination is discovered; immediately test fly ash, bottom ash, slag and Flue gas 

desulfurization sludge using EPA's -- your LEAF test to determine the toxicity of each waste and disclose 

publicly all test results. 

We need stricter enforcement because subtitle C does not require the investigation or rapid closure of 

dangerous ash ponds. Subtitle C does not require immediate clean-up of all contaminated coal ash sites. 

Subtitles C does not require polluters to ensure the healthy air and water of communities near dumps or 

fill sites. We needs you to make sure it is not just shipped to the community where there is more lax 

standards. Ask the people of Perry County about that.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0152-1

Organization1:SOCM

Commenter1:Dave Hoch

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 4.1.2

Comment Excerpt Text:

Now is the time to regulate coal ash as the dangerously toxic hazardous and special waste that it is. The 

unconscionably lax D Prime designation being peddled by big coal and the almost equally poor D 

designation, neither of which require federally enforceable regulations, are both clearly insufficient 

standards by which to effectively regulate coal ash. 

A C designation may show bona fide desire to curb egregious coal industry abuses, but even that 

designation is too lax. It fails to require rapid closure of dangerous ash ponds, timely investigation of all 

toxic coal ash dumps, and immediate cleanup of all toxic coal ash sites. 

It is far past time, scientifically, legally, ecologically, and ethically for the EPA to promulgate and 

vigilantly enforce stringent coal ash regulations pursuant to adoption of the only standard that can provide 

for efficacious regulation, that standard being a C Prime or "Super C"

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0198-1

Organization1:

Commenter1:Maria Rosales

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Although the EPA's strongest legislation Subtitle C is a good start, it is not enough. Subtitle C docs not 

require rapid closure of dangerous ash ponds, it does not require immediate cleanup, despite the threat to 

health and the environment from toxic waste, and it does not require polluters to ensure healthy air and 
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water. That is why I support a stronger Subtitle C Plus in which the N -- EPA should immediately 

shutdown all ca -- coal ash ponds and unlined landfills, investigate all coal ash dump sites, and clean up 

all contaminated sites. 

In addition, the EPA needs to determine the nature and extent of exposure to human -- of human and to 

the toxic material in coal ash, including instituting medical monitoring, when co -- contamination is 

discovered. 

Moreover, all shipments of coal ash should also comply with hazardous material transportation 

requirements and it should require all fly ash, bottom ash, slag, and FGD sludge to be tested under the 

EPA's new leach test, LEAF, to determine toxicity. 

Finally, we should immediately cease use of coal ash as fill and install composite liners for all -- for all 

expanded and new landfills

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0184-1

Organization1:Kentucky Resources Council

Commenter1:Tom Fitzgerald

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Adoption of a program of uniform, comprehensive and appropriate minimum standards for the 

characterization and the management of coal combustion waste for reuse in disposal is the best way, both 

to improve beneficial utilization of CCW and to assure protection of public health and the environment. 

After much reflection, I've come to the conclusion that only a hybrid Subpart C approach will provide that 

framework. The current state of regulation by the states, such as it is, is a hodgepodge of rules that have 

allowed construction of unlined ponds, unengineered or poorly-engineered embankment impoundments, 

and sham beneficial reuses of fly ash and other combustion waste. 

If the utility or coal industry can come forward with a legal framework that assures a minimum national 

floor of adequate regulation that does not necessitate reliance on Subpart C, that will be worthy of 

consideration. In the face of the numerous natural resource and groundwater contamination incidents that 

have occurred under the current regulatory framework, more of the same through issuance of Subpart D 

guidelines that the states are not obligated to adopt or enforce through permits, is an untenable outcome.

Response: The Agency acknowledges and appreciates the comment

Section 12.1.1.1 - Need to clarify status of CCR minefills

Total Number of Submissions: 46

Total Number of Comments: 77

Comment Number: TRANS-ARL-0094-1

Organization1:National Mining Association

Commenter1:Bradford Frisby

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

NMA strongly supports EPA's preamble statement that the agency is not proposing to address the 

placement of CCRs in mines or non-minefill uses of CCRs at coal mines in this action. 

In 2006, the National Academy of Sciences recommended that the Office of Surface Mining and its state 

partners under the Surface Mining Control and Reclamation Act take the lead in developing new national 
679

standards for CCR use in mines, because the framework is in place to deal with mine-related issues. NMA 

agrees with the NAS and urges EPA to continue to defer to OSM given its considerable expertise in mine 

regulation. 

NMA, however, is concerned that EPA's intention to defer to OSM is not executed properly in the 

proposed regulatory text. For example, the definition of minefill in the preamble is vague and does not 

adequately account for non-minefill uses of CCRs, but EPA states it is not regulating under this proposal. 

In addition, only the proposed hazardous waste regulations under Subtitle C specifically exclude 

minefilling operations. 

No definition appears in the proposed regulations for the term "minefilling." Although we believe that 

EPA's intention was for other non-minefill uses at coal mines to be exempt from EPA's rule, this point is 

left unclear by the text of the proposed regulation. The proposed nonhazardous waste regulations under 

Subtitle D should, but do not, include a similar exclusion. Furthermore, EPA's definition of CCR landfill 

under both proposals only expressly excludes underground mines and thus fails to address surface mines. 

To avoid significant confusion and regulatory uncertainty, EPA must make it clear in the preamble and in 

the final regulatory text that placement of CCRs at mines and other non-minefill uses of CCRs in 

underground and surface coal mines are all excluded from the rule's requirements.

NMA strongly opposes EPA's proposal to reverse the 1993 and 2000 Bevill regulatory determinations, 

which correctly concluded that CCRs should be regulated as nonhazardous waste. NMA also strongly 

opposes listing CCRs as special waste and subjecting these materials to hazardous waste regulation under 

Subtitle C. A regulatory program under Subtitle D will protect human health and the environment without 

putting unnecessary barriers on the beneficial uses of CCRs. 

NMA strongly supports EPA's decision not to reverse the regulatory determination for beneficial uses of 

CCRs, but is concerned with EPA's discussion of unencapsulated uses, a term not well-defined in the 

proposal. This term could be interpreted to encompass certain uses of CCRs at mine sites contradicting 

EPA's stated intention not to regulate their uses under RCRA. CCRs serve a variety of important uses at 

mine sites, and EPA's final role should not put these uses in peril. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0106-2

Organization1:Illinois Coal Association

Commenter1:Phil Gonet

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

However, the ICA is concerned that EPA's intention to defer to OSM is not executed properly in the 

proposed regulatory text. For example, the definition of "minefill" in the preamble is vague and does not 

adequately account for non-minefill uses of CCRs which EPA states is not regulating under this proposal. 

In addition, only the proposed hazardous waste regulations under Subtitle C specifically exclude 

"minefilling operations." No definition appears in the proposed regulations for the term "minefilling." 

Although we believe that EPA's intention was for the other non- minefill uses at coal mines to be exempt, 

this point is left unclear in the text and needs to be fixed. 

To avoid significant confusion and regulatory uncertainty, EPA must make it clear in the preamble and in 

the final regulatory text that placement of CCRs at mines and other non-minefill uses of CCRs at 

underground and surface coal mines are excluded from the rule's requirements. 

The ICA strongly supports the EPA's decision not to reverse the regulatory determination for beneficial 

uses of CCRs, but is concerned with EPA's discussion on unencapsulated uses, a term not well defined in 

the proposed rule. This term could be interpreted to encompass certain uses of CCRs at mines, 

contradicting EPA's stated intention.
680

CCRs serve a variety of important uses at mine sites, and EPA's final rule should not put these uses in 

peril by failing to appropriately exclude them from disposal regulations for surface impoundments and 

landfills. OSM is and should continue to be the exclusive regulator of these materials. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0075-2

Organization1:Colorado Mining Association

Commenter1:Dianna Orf

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

CMA is concerned that the intention to defer the issue to OSM requires clarification in the text of the 

proposed regulation. The definition of minefill in the preamble is vague and does not adequately reflect 

non-minefill uses of CCRs, which EPA states is not regulating in the proposal. 

Also, only in the proposed Subtitle C regulations does it specifically exclude minefilling operations. The 

regulations, however, do not contain a definition for the term "minefilling." It appears that EPA intends 

for other non-minefilled uses at coal mines to be exempt from the regulation; however, it's unclear from 

the regulatory text. 

There's no similar exclusions, although there should be, under the proposed Subtitle D nonhazardous 

waste regulations. Further, EPA's definition of CCR landfill under both proposals only expressly excludes 

underground mines and fails to address surface mines. 

Clarification is necessary in the preamble and the final regulatory text that placement of CCRs in mines 

and other non-minefill uses of CCRs at both underground and surface mines -- coal mines are all 

excluded from the rule requirements in order to avoid confusion and regulatory uncertainty. 

We support the decision not to reverse the regulatory determinations for beneficial uses of CCRs, but we 

are concerned with EPA's discussion of unencapsulated uses, which is not defined in the current proposal.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0095-4

Organization1:San Juan Coal Company

Commenter1:Paul Nazaryk

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Number 2, there's a great deal of ambiguity in the actual language of the proposal that needs to be 

addressed. For example, the proposed definition of CCR landfill would exempt the placement of CCR 

material in underground mines but not its use in reclamation of the surface mines

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0014-2

Organization1:Mettiki Coal, LLC

Commenter1:Jim Ashby

Commenter Type: Beneficial User

Classification: Substantive
681

Comment Excerpt Text:

However, Mettiki is concerned that the proposed regulatory text does not make clear EPA's intention to

defer mine placement regulation to the non-minefill uses at SMCRA regulated surface facilities are not 

defined. The definition of CCR landfill appears to only exclude underground mine placement from 

coverage under the proposed rule and leaves silent any reference to treating acid mine drainage or surface 

mine reclamation. Indeed, surface mine reclamation could be construed to be large scale fills, another 

undefined term, and thereby unintentionally fold SMCRA regulated surface mine placement into this 

regulation. 

To avoid major confusion and unintended consequences, EPA must make it more clear in the preamble 

and in the final regulatory text that the placement of CCRs at SMCRA regulated mine sites under the 

guidance of the OSM, whether as minefill or other non-minefill uses at surface and underground mines, 

are excluded from the rules requirements. 

Mettiki strongly supports EPA's decision not to reverse the Regulatory Determination for beneficial uses 

of CCRs but is concerned with EPAs discussion of unencapsulated uses; a term, like large scale fill and 

minefill above, not well defined in the proposal. This term could also be interpreted to encompass certain 

uses of CCRs at SMCRA regulated mine sites, contradicting EPA's stated intent to not regulate these uses 

under RCRA. 

Certain CCRs serve a variety of important uses at mine sites, and EPA's final rule should not put these 

uses in jeopardy by failing to appropriately exclude them from the disposal regulations for surface 

impoundments and landfills. OSM is and should continue to be the exclusive regulator of these materials 

at mine sites given their regulations are expressly designed to address environmental risks associated with 

coal mining activity on a site-specific basis.

Response: The Agency acknowledges and appreciates the comment

Section 12.1.1.2 - Defer CCR regulation at mine sites to DOI/OSM

Total Number of Submissions: 45

Total Number of Comments: 66

Comment Number: TRANS-CHI-0018-3

Organization1:ALCOA Power Generating, Inc.

Commenter1:Scott Darling

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

ALCOA does agree with the Agency that mine placement activities should continue to be regulated under 

the Department of Interior. ALCOA, however, believes that the inclusion of historic mining that can be 

structurally enhanced to ensure public safety should also continue to be regulated under the Department 

of Interior.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-CHI-0106-1

Organization1:Illinois Coal Association

Commenter1:Phil Gonet

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The ICA strongly supports EPA's preamble statement that the agency "..is...not proposing to address 

placement of CCRs in mines, or non-minefill uses of CCRs at coal mine sites in this action." 

In 2006, the National Academy of Sciences recommended that the Office of Surface Coal Mining and its 
682

state partners under the Surface Mining Control and Reclamation Act "take the lead in developing new 

national standards for CCR use in mines because the framework is in place to deal with mine-related 

issues." The ICA agrees with the NAS and urges EPA to continue to defer to OSM given its considerable 

expertise in mine regulation.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0075-1

Organization1:Colorado Mining Association

Commenter1:Dianna Orf

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

CMA's statement today is limited in scope. We plan to submit more detailed written comments prior to 

the September (sic) 20th deadline. 

CMA supports EPA's preamble to the proposed rule which states that it is not proposing to address the 

placement of CCRs in mines or in non-minefill uses of CCRs at coal mine sites in the action. 

We believe this is an appropriate limitation and reflects prior findings of the National Academy of 

Sciences which in 2006 recommended that the federal Office of Surface Mining, or OSM, and its state 

partners under the Surface Mining Control and Reclamation Act take the lead in developing new national 

standards for CCR use in mines because the framework is already in place to deal with these mine- related 

issues. 

CMA believes that the EPA should continue to defer the issue of CCR placement in mines to OSM 

because of OSM's unique expertise and ongoing role in mine regulation. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0095-2

Organization1:San Juan Coal Company

Commenter1:Paul Nazaryk

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

We concur with EPA's decision to exclude the mine placement of CCR material from this rulemaking. 

We also agree with EPA and the 2006 National Academy of Sciences study that the use of CCR material 

in mined land reclamation should be regulated by the U.S. Office of Surface Mining and that these 

regulations should be developed jointly by OSM and EPA

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0014-1

Organization1:Mettiki Coal, LLC

Commenter1:Jim Ashby

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Mettiki strongly supports EPA's preamble statement that the agency: Is not proposing to address the 

placement of CCRs in mines, or non-minefill uses of CCRs at coal mine sites in this action. Mettiki, and 
683

EPA as expressed in the preamble, agrees with the National Research Council that: OSM should take the 

lead in developing new national standards for CCR use in mines because the framework is in place to deal 

with mine-related issues.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0025-3

Organization1:Alcoa

Commenter1:Tony Schoedel

Commenter Type: Other Company

Classification: Substantive

Other Sections: 12.1.1.7

Comment Excerpt Text:

Three, Alcoa, agrees with the agency, that mine filling activity should be regulated within the department 

of interior. However, Alcoa also feels that the inclusion of the historical mining areas that can be 

structurally filled will enhance public safety by eliminating fatalities, drowning and that type of thing. 

Also, to sit outside the scope of this whole opinion and regulate it also under the department of interior. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0054-1

Organization1:Pennsylvania Coal Association

Commenter1:Josie Gaskey

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 12.1.1.7

Comment Excerpt Text:

PCA opposes the regulation of CCRs as hazardous waste under RCRA Subtitle C. Our members utilize 

CCRs in their mines and beneficially use CCRs at their facilities and will be directly impacted by this 

rulemaking. CCRs serve a variety of important uses at mine sites and EPA's final rule should not 

jeopardize these uses. For Pennsylvania, the use of CCRs in mine land reclamation has been successful 

and mine land that would not be reclaimed under the federal Abandoned Mine Land Program is being 

reclaimed with CCRs. We agree with the 2006 National Academy of Sciences' recommendation that 

OSM and its state partners under SMCRA that the lead in developing national standards of CCR use in 

mine. OSM already has the regulatory structure in place and considerable expertise in mine regulation.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0110-1

Organization1:Consol Energy

Commenter1:Steven Winberg

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

Our first concern relates to regulation of CCR at coal mine sites. The EPA heard testimony from the 

National Mining Association on this concern at the August 30, Arlington, public hearing. Rather than 

repeat these concerns, I will just state that Consol agrees with NMA's uses will continue to be regulated 

by the Office of Surface Mining under the Surface Mining Control and Reclamation Act. 

Response: The Agency acknowledges and appreciates the comment

Section 12.1.1.3 - States have regulations in place to properly address CCR minefill issues
684

Total Number of Submissions: 16

Total Number of Comments: 36

Comment Number: TRANS-PIT-0029-3

Organization1:Ebensburg Power Company

Commenter1:Gary Anderson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Since 1985, Pennsylvania DEP has provided oversight on the beneficial use of coal ash for mine 

reclamation and other uses. PA DEP's 25 year scientific technical findings include allegations that ash 

causes pollution are seriously flawed, ash placement has not caused water quality degradation. In fact, in 

some instances, significant improvements have occurred.

Response: The Agency acknowledges and appreciates the comment

Section 12.1.1.4 - RCRA Subtitle D regulation for minefilling is justified by federal agencies, states 

and industry

Total Number of Submissions: 4

Total Number of Comments: 5

Comment Number: TRANS-KNX-0117-3

Organization1:

Commenter1:George Hyfantis

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Further, it is my recommendation that EPA consider working closely with the Department of Interior's 

Office of Surface Mining to develop a joint program that allows the disposal of CCRs at abandoned and 

active surface mine sites using the same design criteria for RCRA Subtitle D landfills. 

The National Academy of Sciences published a comprehensive study of the viability of this very idea. 

Their report entitled "managing Coal Combustion Residues in Mines" was published in 2006. Proper 

disposal at abandoned surface mine sites provides an opportunity for land reclamation and reuse. I suggest 

making this report a part of your comment record. 

The Knoxville Field Office of the Office of Surface Mining has developed an innovated program for 

surface mine closure called the Appalachian Regional Reforestation Initiative. This very successful 

program has been used to restore recently closed surface mines to productive forests. 

This technique can be combined with the design requirements for an RCRA Subtitle D Landfill cap. 

Using this combined technique would allow a formerly-mined area to be reforested as opposed to 

becoming a large grassy field in the mountains. I have included a concept design with these comments for 

your consideration. Again, thank you for extending your comment period.

Response: The Agency acknowledges and appreciates the comment

Section 12.1.1.6 - Regulate minefills at least as stringently as other CCR disposal sites

Total Number of Submissions: 30

Total Number of Comments: 33

Comment Number: TRANS-DAL-0126-3

Organization1:Public Citizen's Texas office
685

Commenter1:Tom Smith

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

I understand fully that there are significant differences between the kind of regulation the EPA does of 

coal combustion wastes from the plants that burn in Texas, low sulphur western coal which is imported, 

and those that are regulated by Department of Energy and Railroad Commission that actually mine coal 

onsite and then deposit it back in their mines. We wish these rules would also apply to those kinds of 

wastes.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-KNX-0068-4

Organization1:

Commenter1:Linda Smithyman

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

Through research, EPA must determine which reuses of coal ash are safe and beneficial, and must 

prohibit reuses that constitute dumping and expose people and the environment to hazardous chemicals. 

Failure to regulate coal ash dumped in mines is a dangerous omission, and EPA should not exempt this 

practice from regulation.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0088-2

Organization1:League of Women Voters

Commenter1:Joan Lindop

Commenter Type: Advocacy Group

Classification: Substantive

Other Sections: 3.1.1

Comment Excerpt Text:

The League of Women Voters urges the EPA to adopt the proposed Subtitle C regulations that classify 

coal ash as hazardous. Subtitle C must not exempt deep and surface mining. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-LVL-0184-4

Organization1:Kentucky Resources Council

Commenter1:Tom Fitzgerald

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Third, co-disposal of CCW in mine workings should be discouraged, and allowed if at all only after 

adoption of rigorous standards by EPA commensurate with those for CCW landfills, as recommended by 

the 2006 National Academy of Sciences report on Managing Coal Combustion Residues in Mines. A 

small but growing percentage of coal combustion wastes are backhauled and disposed, or beneficially 

reused, in mine workings (including both underground mine voids and more commonly, in surface mine 

backfills or spoil/mine waste fills). 

Such use and disposal occurs not only because such sites offer a hydrologically or geologically preferable 
686

location, but primarily because coal companies offer the backhauling and mine site disposal as a "service" 

or incentive in order to increase market share for their coal in an increasingly competitive marketplace. 

Co-disposal of coal combustion wastes at former or current mine sites represents perhaps the least 

appropriate place among options for disposal of such wastes because of several factors: 

The increase in surface area available for leaching of elements resulting from fracturing of overburden 

and confining layers; (2) Higher total dissolved solids levels in mine spoils that compete for sorption sites 

on solids with toxic elements released from the buried ash; (3) Direct communication between surface 

and underground mine workings and aquifers through stress-relief fracture systems and subsidenceinduced fracture flow; (4) The dependence of residents of coal- bearing regions on private, groundwater 

supplies and the significant potential for contamination of those supplies; and (5) The presence of site 

conditions conducive to creation of acid or toxic- forming material that can solubilize constituents of 

concern from the waste. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0098-1

Organization1:Center for Coalfield Justice

Commenter1:Raina Rippel

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Coal ash represents one of the last steps in a process that begins with mining, and pollutes through every 

stage of coal cycle, from extraction to burning to disposal of waste. Coming from our air, our water and 

our land, citizens in the coalfields are bearing the brunt of a heavy pollution load. To call massive mine 

sites filled with toxic coal ash beneficial, as is done is Pennsylvania, is adding insult to injury. 

As coal-fired power plants are increasingly regulated for their release of toxic air emissions, cleaning up 

the stacks means that more concentration of hazardous materials and heavy metals are found in coal ash. 

There is no medical doubt that high levels of arsenic and other pollutants, such as lead and mercury found 

in coal ash are detrimental to human health. The stories we have heard from local residents living 

downstream or downwind from disposal sites today are shocking, and represent a serious public health 

concern for Pennsylvania citizens. 

We are specifically urging the U.S. EPA to include minefilling projects under new proposed federal rules, 

designation C. These mine reclamation projects amount to open dumping and should be federally 

regulated. Listing coal ash under Subtitle D as a nonhazardous wastes leaves the door open for inadequate 

enforcement, improper reuse and insufficient monitoring of this demonstrably hazardous substance.

Response: The Agency acknowledges and appreciates the comment

Section 12.1.1.7 - Minefills are beneficial use

Total Number of Submissions: 43

Total Number of Comments: 75

Comment Number: TRANS-DAL-0090-2

Organization1:Texas Mining and Reclamation Association

Commenter1:Mike Altavilla

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

TMRA supports EPA's exclusion of mine filling from the rule proposals, specifically as it relates to the 
687

placement or use of CCRs and Texas surface mine reclamation. Consider the following: There is no 

evidence suggesting any negative effects from using CCRs in mine reclamation and this land is highly 

valued and in demand when it is released. A hazardous designation would also raise the cost of 

reclamation, increase energy use in emissions, and could delay timely reclamation. The Texas program 

through the environmental and surface mining regulators in Texas is protecting human health and the 

environment, and there is no need for additional federal regulation.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DAL-0103-1

Organization1:Luminant's Three Oaks Mines

Commenter1:James Birkhead

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Across Luminant's mines, coal combustion residuals play a very important role in our reclamation 

practices. As a standard practice, they have been effectively used for mine fill and contouring across the 

state for many years with no proven adverse environmental impacts. Even before federal and state laws 

were written, Luminant demonstrated a strong commitment to responsible land reclamation and 

management. We ensure the quality of our reclaimed land, its groundwater, and soil through rigorous and 

extensive monitoring. We have never experienced any issues with our groundwater from using CCRs for 

mine fill and contouring.

We take great pride in our reclamation program, and for good reason. We've received nearly 90 awards 

for reclamation excellence throughout the years. Most notably, in 2009, we received the U.S. Department 

of the Interior Office of Surface Mining Director's Award. And this was for an unprecedented fifth time. 

This was also the second consecutive year Luminant received OSM's highest distinction. 

The primary goal of our reclamation program is to return mine lands to a productive post-mine use and to 

achieve full release of all regulatory obligations. To that end, we've reclaimed more than 66,000 acres, 

and we've secured the successful release of bond liability on over 29,000 acres. Our attention to the 

development of quality post-mine soil is the cornerstone of our successful mine reclamation program. 

We've also significantly increased prime farmland in our post-mine soils. Prime farmland soils are those 

that have been -- that have the best combination of physical and chemical characteristics for producing 

food, feed, forage, fiber and oilseed crops. Our land is known for its quality and it's in high demand when 

it's released for sale back to the public. Using CCRs as mine fill and for contouring has contributed to this 

success. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-DEN-0095-5

Organization1:San Juan Coal Company

Commenter1:Paul Nazaryk

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

Number 3, EPA has taken the position that mine placement of CCR material is not a beneficial use. We 

disagree with that assessment. In our view, use of this material replaces our need to disturb additional 

land to obtain fill material to reclaim our surface mines

Response: The Agency acknowledges and appreciates the comment
688

Comment Number: TRANS-PIT-0025-3

Organization1:Alcoa

Commenter1:Tony Schoedel

Commenter Type: Other Company

Classification: Substantive

Other Sections: 12.1.1.2

Comment Excerpt Text:

Three, Alcoa, agrees with the agency, that mine filling activity should be regulated within the department 

of interior. However, Alcoa also feels that the inclusion of the historical mining areas that can be 

structurally filled will enhance public safety by eliminating fatalities, drowning and that type of thing. 

Also, to sit outside the scope of this whole opinion and regulate it also under the department of interior. 

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0029-2

Organization1:Ebensburg Power Company

Commenter1:Gary Anderson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Beneficial use of ash should be strongly encouraged. Government agencies should examine ways in 

which they can promote ash use of remove impediments to its use. Placement of ash in mines should be 

based on an integrated process of ash characterization, site characterization, management and engineering 

design of placement activities, design and implementation of monitoring.

Response: The Agency acknowledges and appreciates the comment

Comment Number: TRANS-PIT-0054-1

Organization1:Pennsylvania Coal Association

Commenter1:Josie Gaskey

Commenter Type: Trade Association

Classification: Substantive

Other Sections: 12.1.1.2

Comment Excerpt Text:

PCA opposes the regulation of CCRs as hazardous waste under RCRA Subtitle C. Our members utilize 

CCRs in their mines and beneficially use CCRs at their facilities and will be directly impacted by this 

rulemaking. CCRs serve a variety of important uses at mine sites and EPA's final rule should not 

jeopardize these uses. For Pennsylvania, the use of CCRs in mine land reclamation has been successful 

and mine land that would not be reclaimed under the federal Abandoned Mine Land Program is being 

reclaimed with CCRs. We agree with the 2006 National Academy of Sciences' recommendation that 

OSM and its state partners under SMCRA that the lead in developing national standards of CCR use in 

mine. OSM already has the regulatory structure in place and considerable expertise in mine regulation.

Response: The Agency acknowledges and appreciates the comment

Section 12.1.2 - EPA’s Coal Combustion Products Partnership (C2P2) program

Total Number of Submissions: 18

Total Number of Comments: 18

Comment Number: TRANS-DAL-0075-2

Organization1:
689

Commenter1:Jimmy Lambert

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

en though the EPA boasts of wanting to support beneficial reuse, their stealthy approach to the systematic 

and strategic demise of the C2P2 program are valid proof that the EPA is misleading the public. We are 

seeing the immediate decay of an otherwise growing recycling effort. 

Response: The Agency acknowledges and appreciates the comment

Section 12.5 - Other out-of-scope comments

Total Number of Submissions: 9

Total Number of Comments: 9

Comment Number: TRANS-KNX-0132-3

Organization1:Greenpeace

Commenter1:Robert Gardiner

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

That said, we have discovered that there -- there have been meetings between the OMB between October 

2009 and April 2010, at least four months before these public hearings were announced, in which the 

industry representatives held 33 meetings. 33 meetings. That's more than three times environmental or 

scientists had on this -- this particular rule. 

We challenge the EPA to demonstrate that this public hearing is not a sham, and that industry can't just 

gum up the gears of the OMB when regulating coal ash. It's clearly within your mandate.

Response: The Agency acknowledges and appreciates the comment