Compilation of State Comments received by ASTSWMO 

regarding EPA Proposed Regulation of CCB 

This compilation incorporates responses received by ASTSWMO as of March 31, 2009, from: 

Colorado, Florida, Hawaii, Iowa, Kansas, Michigan, Missouri, Ohio, South Dakota, Tennessee, 

Virginia, West Virginia and Wisconsin. 

The compilation includes copies of letters sent by some of these States directly to EPA. 

Colorado

March 31, 2009 

Mr. Matt Hale, Director 

USEPA’s Office of Resource Conservation and Recovery 

USEPA Headquarters 

Ariel Rios Building, 1200 Pennsylvania Avenue N.W. 

Mail Code 5301P 

Washington, DC 20460 

RE: EPA Proposed Regulations of Coal Combustion Waste 

Mr. Hale: 

Coal combustion waste is managed as a solid waste in Colorado. The waste is managed in 

accordance with the requirements of the Solid Wastes and Disposal Sites and Facility Act (Title 

30, Article 20, Part 1; the Act) and the Regulations Pertaining to Solid Waste Sites and 

Facilities (6 CCR 1007-2, Part 1; the Regulations). The wastes are typically disposed of in 

monofills designed, constructed, operated, closed and monitored pursuant to all applicable 

requirements, most notably Section 3 (Subtitle D landfill design requirements) of the 

Regulations. 

Facilities may apply for the beneficial use of coal combustion waste pursuant to Section 8 

(Recycling) of the Regulations. Section 8 requires that the re-use of the material is a 

demonstrable beneficial use via the replacement of raw material and does present a risk or 

threat to human health or the environment. This process includes the submittal and approval of 

a design and operations plan prior to re-use of the material. The Design and Operation plan 

must include geotechnical, chemical and other applicable testing of the coal combustion waste 

and the re-usable configuration of the material as a demonstration of acceptable material reuse. 

We believe the solid waste regulation of the waste material and the beneficial reuse is a safe 

and protective regulatory construct for coal combustion waste. 

Charles G. Johnson, Unit Leader 

Solid Waste and Material Management Unit 

Solid and Hazardous Waste Program 

Hazardous Materials and Waste Management Division 

Colorado Department of Public Health and Environment 

1
Florida

Here are some of my comments on what EPA is considering with coal ash regulation. 

 

1. If EPA decides to call coal ash a hazardous waste under Subtitle C, then current Florida 

law (Section 403.7222, Florida Statutes) would prohibit the disposal of this coal ash in 

landfills unless it was first treated to be non-hazardous. This could add tremendous 

costs to the power industry for managing this material. They would either have to treat 

their ash before disposal or ship it out of state for disposal. It is also likely that if existing 

disposal areas were disturbed after EPA determined coal ash was a hazardous waste, 

then these old disposal sites could become hazardous waste disposal units too. 

2. If EPA decides to call coal ash a hazardous waste under Subtitle C, then it may 

significantly reduce the beneficial use of this ash unless EPA also creates some 

exemptions for use of the ash. For example, would cement plants that have taken coal 

fly ash for years in the manufacturing of Portland cement now be considered hazardous 

waste treatment facilities? I also imagine that we would not allow the use of hazardous 

wastes in the construction of roads. Our current process is to not allow that unless we 

have data that suggests the use of the ash will not cause ground water contamination or 

pose an unacceptable human health risk. 

3. We would not allow the use of coal ash in road construction, if it fails the TCLP. We also 

do not have any data to suggest that coal ash projects we have review failed TCLP. 

While I agree that in the past there have been some cases of environmental damage 

from the disposal of coal ash, declaring all coal ash to be a hazardous waste because of 

these cases seems to be a bit of a stretch to me just based on the data we have seen. 

4. We have some coal-fired power plants that are co-located near gypsum wallboard 

manufacturers. They ship the FGD sludge by conveyor belt directly to the wallboard 

facility for beneficial use. As near as we can tell, this is a very good and safe use of the 

FGD sludge and it would be inappropriate to define this material as a hazardous waste. 

5. This problem came about because of TVA's coal slurry impoundment failure. We all 

agree that this is a huge problem that needs attention. EPA should provide more 

training and materials for conducting good dam inspections and should encourage 

power plant facilities to convert from wet to dry processes to minimize the risks in the 

future. But they should not also decide to make coal ash a hazardous waste. It seems 

that would cause more problems than it solves. 

 

Hawaii

Hawaii does not have any coal ash surface impoundments. However, we do have a couple of 

coal combustion plants whose ash is managed in-state. We have developed a risk-based 

approach in evaluating reuse options, and believe that our scientific approach is defensible. 

Based on the analytical data from the coal ash generated in Hawaii, we do not believe that 

Subtitle C nor a Subtitle C-D hybrid is appropriate. Even a Subtitle D disposal requirement, if 

similar to MSW Landfills, is questionable. Hawaii has provided EPA with substantial comments 

2
on their proposed guidelines for risk evaluation of coal ash in the last year or so, and we still 

believe that it's the direction that EPA should take, if any. 

 

Iowa

March 19, 2009 

MR MATT HALE, DIRECTOR 

OFFICE OF RESOURCE CONSERVATION AND RECOVERY 

US ENVIRONMENTAL PROTECTION AGENCY 

1200 PENNSYLVANNIA AVE NW 

WASHINGTON DC 20460 

RE: EPA Regulation of Coal Combustion Waste 

Dear Mr. Hale: 

On behalf of the Iowa Department of Natural Resources (IDNR) and our director we want to 

express our thanks for the opportunity to provide comments to EPA while you are still vetting 

options. Since 90% of the electricity in Iowa is generated by coal-burning facilities, the issue of 

regulating the beneficial use and disposal of coal combustion waste (CCW) has serious 

implications to our state. We have looked at EPA’s proposed regulatory scenarios and it is 

IDNR’s position that the EPA should approach CCW regulations similar to the approach that is 

taken with municipal solid waste under 40 CFR Part 258, commonly referred to as RCRA 

Subtitle D. Using the lessons learned by states since the adoption of 40 CFR Part 258 and 

historical CCW data collected by states, RCRA Subtitle D could be modified to specifically 

address CCW waste disposal facility requirements and is the framework that the EPA should 

build upon. 

The Department understands that the EPA is considering options to regulate CCW as a 

hazardous waste under RCRA Subtitle C. This option is not supported by the historic data that 

has been collected from generators of CCW in Iowa which shows that CCW does not exceed 

RCRA Subtitle C hazardous waste characteristics. Regulation under RCRA Subtitle C also has 

the potential to put an end to many beneficial uses for CCW. In most states, a primary 

requirement for a beneficial use determination is that the waste not be hazardous. Most 

importantly, declaring CCW a hazardous waste creates an even greater hardship in Iowa 

because of the amount that is generated and the fact that there is no RCRA C permitted 

disposal facilities in the state. The likelihood of siting such a facility borders on the impossible. 

The implications of this action are that CCW generators would be forced to ship materials to 

surrounding states for disposal. That could become very costly for Iowans and extremely difficult 

to justify when there is little scientific data supporting such drastic measures. 

IDNR looks forward to continued conversations and involvement with EPA on CCW regulation 

through ASTSWMO. Again, we want to express our appreciation for the opportunity to provide 

input. Should you have any questions specific to our comments or need relevant data pertaining 

to CCW generated in Iowa, please do not hesitate to contact me at (515) 281-8927 or Alex 

Moon at (515) 281-6807 or alex.moon@dnr.iowa.gov. 

3
Sincerely, 

Brian Tormey, Chief 

Land Quality Bureau 

Environmental Services Division 

Cc: Richard Leopold, Director, IDNR 

 Wayne Gieselman, Administrator, Environmental Services Div., IDNR 

 Alex Moon, Land Quality Bureau, IDNR 

 Mary Zdanowicz, Executive Director, ASTSWMO 

 Don Toensing, US EPA, Region VII 

Kansas

On behalf of Kansas, I appreciate the opportunity to provide comments to ASTSWMO on EPA’s 

potential development of new regulations on the disposal and beneficial reuse of coal 

combustion waste (CCW). Kansas has a full system of water and waste permits to ensure that 

these wastes are properly managed to prevent accidents such as occurred in Tennessee last 

year. Kansas recognizes that all states may not have a regulatory program that provides the 

safeguards that our state program in-place; however, EPA should not promulgate any CCW 

regulations that would impact sate regulatory programs such as in Kansas. Any federal 

regulations should allow some flexibility in how state programs are administered rather than 

establish prescriptive management standards. EPA’s rule should also not set complex 

equivalency demonstration criteria to prove that the existing state program is acceptable. 

Kansas has eight major coal-burning power plants. Some of these facilities manage fly-ash and 

bottom ash as a “dry” waste and some slurry the waste into some type of containment system. 

If the waste is initially managed “wet” the containment system may be a constructed berm or 

dam, or an excavated lagoon. In some cases, wet waste is later removed from storage for 

either beneficial use or transfer to a dry waste landfill. In all cases, the CCW storage areas are 

covered by a landfill permit and in some cases by a wastewater permit as well. To obtain a 

permit for CCW management, the power company must provide the Bureau of Waste 

Management with comprehensive engineering plans, site geological information, a groundwater 

monitoring plan, a demonstration of financial assurance for closure and post-closure care, and 

an operating plan (among other required permit application documents). When the waste 

storage units are constructed, the company must provide third party construction quality 

assurance to document that the units have been constructed in accordance with approved 

engineering plans. 

In addition to this high degree of regulatory oversight by the Kansas Department of Health and 

Environment related to permitting, Kansas has another level of regulatory control over these 

facilities - - an inspection program. KDHE inspects all permitted solid waste storage or disposal 

areas at least one time per year. During our inspections, the integrity of the containment 

systems are visually examined. On a less frequent basis, KDHE permit engineers also visit 

these sites and make observations of system integrity. Additional inspections are also carried 

out by the Kansas Division of Water Resources (DWR). Every three years, DWR inspects dams 

that meet certain criteria: (1) the dam or berm must be greater than or equal to 25 feet in height 

or (2) the dam or berm must be at least 6 feet high and retain 50 acre-feet of liquid. 

None of the Kansas CCW storage and disposal facilities have the potential to cause a disaster 

such as occurred in Tennessee. A couple facilities are located adjacent to rivers or large lakes 

4
which does present some risk to the environment, but there are no downstream cities or 

neighborhoods that could be impacted by a release from any facility. This combined with the 

present comprehensive permitting program makes an additional level of federal regulation a 

concern during this time of reduced resources to administer all solid and hazardous waste 

programs. EPA should try its hardest to avoid causing states to divert limited technical 

resources from existing permitting or compliance and enforcement work to address a nonproblem in those states with existing permitting programs. 

I would be happy to provide more details about Kansas’ regulated universe or our regulatory 

program. Please let me know if you have any questions. 

Michigan

Michigan currently regulates coal ash as a solid waste under Part 115, Solid Waste 

Management, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as 

amended (NREPA). Michigan’s program for Solid Waste Management has been in place since 

1978. These regulations were amended in 1993 when Michigan became an approved state 

under the Resource Conservation and Recovery Act (RCRA) Subtitle D program. Based on the 

analytical information that we have seen on coal ash, we believe that the levels of contaminants 

contained in coal ash are similar in nature to those found in cement kiln dust, wood ash, foundry 

sands, paper mill wastes, or steel mill waste. With the promulgation of the 1993 rules, we 

consider all these waste to be low-hazard industrial waste (i.e. they leach less than ten percent 

of the hazardous waste limits when using the appropriate leaching tests.) Low-hazard industrial 

waste in Michigan may be disposed of in a landfill that has less-stringent design standards than 

a landfill taking either industrial or municipal solid waste, or it may be disposed of in a permitted 

surface impoundment. 

Michigan currently has eight sites that accept only coal ash and/or associated wastes from coalfired power plants. Four of the facilities are surface impoundments, and four are solid waste 

landfills. Coal ash is also disposed of in combination with other wastes in numerous low-hazard 

industrial waste landfills, industrial landfills, and municipal solid waste landfills located 

throughout the state. 

The four active surface impoundments were all in existence prior to the enactment of Michigan’s 

Solid Waste Management Act in 1978 and were grandfathered-in without necessarily meeting 

the current requirements for the design and siting of such facilities. Three of the four surface 

impoundments are in the process of closing and/or converting to dry handling systems. 

Michigan’s design standards for low-hazard industrial waste landfills require liner systems 

comprised of either a natural soil liner not less than ten feet thick and demonstrating a hydraulic 

conductivity of no more than 1.0E-7 cm/sec, a three-foot thick recompacted clay liner 

demonstrating the same hydraulic conductivity, or a composite liner system incorporating a 

flexible membrane liner and a low hydraulic conductivity soil layer. 

Landfills and surface impoundments are required to be permitted and licensed; must provide 

financial assurance; are subject to either groundwater monitoring or required to obtain a NPDES 

discharge permit; must provide for leachate collection in landfills; must have 30-year postclosure care obligations; and are subject to corrective action, if necessary. 

The statutory provisions of Part 115, of the NREPA also exempt coal ash from regulation as a 

solid waste under certain conditions when the ash is used as a component of concrete, grout, 

5
mortar, or casting molds; when the ash is used as a raw material in asphalt for road 

construction; when the ash is used as aggregate or road or building material which will be 

stabilized or bonded by cement, limes or asphalt; or when the ash is used as a road base or 

construction fill that is covered with asphalt, concrete, or other material approved by the state. 

RCRA Subtitle C wastes in Michigan are currently regulated under Part 111, Hazardous Waste 

Management, of the NREPA. The regulation of coal ash under full RCRA Subtitle C would end 

the current beneficial uses of coal ash. Existing surface impoundments and landfills would be 

subject to more stringent design standards and would require either 1) retrofitting of existing 

landfills (if even possible) or 2) closure of those disposal facilities. Neither of these options 

could be implemented immediately. 

Michigan currently has regulations in place governing the reuse and disposal of coal ash that 

are protective of public health and the environment. If coal ash were determined to be subject 

to regulation under Subtitle C, it would necessitate considerable changes to Michigan solid and 

hazardous waste statutes and regulations. Such changes would likely be subject to 

considerable opposition from any industry and/or municipality that generates coal ash waste, 

and would likely lead to increased costs for energy generation. 

Missouri

Missouri has comprehensive regulations in place for the design and permitting of utility waste 

landfills. Missouri promulgated regulations in 1997 specifically for utility waste landfills (UWLF.) 

Utility waste landfills permitted pursuant to these regulations are subject to numerous 

requirements designed to protect public health and the environment, including: 1.) a geologic 

and hydrologic evaluation to determine if the site is suitable for construction of a landfill; 2.) a 

liner with QA/QC procedures to ensure proper construction; and, 3.) a leachate collection 

system and to monitor groundwater. The Missouri Department of Natural Resources (MDNR) 

inspects all permitted solid waste disposal areas at least one time per year to ensure 

compliance. 

Missouri has a number of coal burning power plants. Most of the facilities do manage their fly 

ash short term in surface impoundments prior to beneficial use or final disposal in a UWLF. 

However, these surface impoundments are bowl shaped depressions in the ground (in contrast 

to the raised structures used at the Tennessee Valley Authority facility.) The outfalls from these 

ponds and from landfills are monitored under the National Pollution Discharge Elimination 

System permitting process. 

Missouri regulations allow the beneficial reuse of coal combustion by products. We have a 

number of state-wide general beneficial use (SWGBU) approvals that allow the holder to use 

the ash as structural fill, road base, as a soil amendment or for soil stabilization provided they 

meet certain criteria. One such user is the Missouri Department of Transportation (MDOT), who 

uses fly ash in many of their highway projects. One project in southwestern Missouri is 

expected to use between 1 and 1.5 million cubic yards of fly ash. 

 

Testing is required for beneficially reused materials. Testing includes initial analysis of the 

material and additional testing when sources of fuel change or when there is a change in plant 

processes, if such changes cause a change in the constituents generated. The waste to be 

beneficially reused is kept above the seasonal high groundwater table, unless a variance is 

obtained from the department’s Water Protection Program (WPP.) This requires an 

6
interpretation by a geologist registered in the State of Missouri. A 3-foot cap of clean soil is 

required unless the material is placed under a structure or a paved/concreted area. 

Recycling this waste material into new products, rather than having to mine additional virgin 

material, is part of Missouri's vision for sustainable development and sustainable infrastructure. 

To disallow the beneficial use of coal combustion by-products (CCB) would cause an increase 

in the use of valuable mineral resources rather than reusing a waste product. This would in turn 

increase disposal costs for the utilities which would be passed on to the consumer. Counties 

and municipalities who use bottom ash as snow and ice control who would have to purchase 

chemicals or salts to treat the roads. MDOT and other entities using CCB would have to 

purchase soil to use in place of the fly ash for structural fill, road base, as a soil amendment or 

for soil stabilization. This could impact the number of miles of roads that can be constructed or 

repaired and increase costs. 

None of the testing data Missouri has to date indicates this material is leachable or an 

environmental concern. The TVA collapse seems to be more of a safety concern at that 

particular site related to dam safety and potentially the placement of the basin rather than of the 

material itself. 

Given the current state of CCB management activities in Missouri there does not appear to be a 

compelling reason, from a human health or environmental protection standpoint, to manage 

these materials as hazardous waste under RCRA Subtitle C. To do so would be an undue 

disruption to current state CCB and UWLF management practices and would likely result in a 

significant increase in the cost of CCB management without a corresponding increase in human 

health or environmental improvement/protection. 

It is currently unknown how existing, permitted UWLFs would be handled if CCBs became 

subject to Subtitle C regulation. Retrofitting of existing UWLFs to meet Subtitle C standards is 

likely to be technically impracticable. Even if technically feasible, the cost of retrofitting UWLFs 

to meet current RCRA Subtitle C standards would likely be prohibitively expensive. Any 

additional compliance costs borne by the utility companies in retrofitting existing UWLFs or 

permitting new ones would undoubtedly be passed along to consumers at a time when 

economic conditions in the U.S. are less than ideal. 

In summary, Missouri has adequate regulatory controls for coal combustion by-products. EPA 

should avoid a “one size fits all” approach that will unnecessarily divert limited technical 

resources away from existing permitting or compliance and enforcement work. Instead, EPA 

should recognize that many states have adequate controls in place and allow them to maintain 

their programs. EPA could then focus its efforts on correcting any deficiencies identified by their 

investigations. 

Ohio

March 16, 2009 

Mr. Matt Hale 

Director, Office of Resource Conservation and Recovery 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, NW 

Washington, D.C. 20460 

7
Dear Mr. Hale: 

I understand that the U.S. Environmental Protection Agency is moving forward on developing 

regulations addressing coal combustion waste (CCW) and intends to propose rules by the end 

of this year. I wish to offer my thoughts regarding Ohio’s preferred federal approach to CCW 

regulations. 

I understand that various options are under consideration. My preferred option is to follow the 

previous 2000 USEPA decision to regulate CCW under RCRA Subtitle D. 

Other options based upon regulation under RCRA Subtitle C provide no clear advantages to 

Ohio's solid waste or hazardous waste programs that cannot be accomplished under a RCRA 

Subtitle D regulatory approach. In fact, regulation of CCW under RCRA Subtitle C would 

needlessly complicate Ohio's existing programs and specifically the inclusion of CCW in Ohio's 

future beneficial use program. Under Ohio statute, hazardous waste and solid waste are 

distinct and mutually exclusive types of wastes. A federal hybrid approach towards regulation of 

CCW as a hazardous waste intended to be managed at a solid waste disposal facility is in 

conflict with Ohio law. From Ohio’s perspective, federal regulation under RCRA Subtitle D is the 

appropriate approach. 

Ohio’s experience is that CCW is a high volume, low toxicity waste that has not exceeded 

RCRA Subtitle C-based hazardous waste characteristics. CCW disposal should be regulated 

and both CCW landfills and surface impoundments must obtain Ohio permits. Environmental 

regulation of CCW disposal is most reasonably accomplished under RCRA Subtitle D. 

Ohio’s experience as a federally approved Subtitle D municipal solid waste landfill permit 

program has been successful. The regulatory scheme USEPA has taken in 40 CFR part 258 

(municipal solid waste landfills) establishing minimum national standards 

for the location, design, operation, closure, post-closure, corrective action, and 

monitoring as well as the method of approving state permitting programs has worked well for 

over a decade. This is the model that USEPA should build upon and tailor to the concerns 

arising from CCW disposal and management. 

Ohio EPA has valuable regulatory experience permitting and inspecting CCW disposal facilities. 

We look forward to assisting USEPA in the development of a national CCW regulatory program. 

Sincerely, 

Chris Korleski 

Director 

South Dakota

I am sending you this email to express our thoughts on regulating coal ash in surface 

impoundments. We in SD do not have "surface impoundments" like the TVA's or others. Our 

one ash disposal site is a dry tomb landfill rather than a surface impoundment with all of the 

issues dealing with the force of moisture and dam structures. One proposed expansion and one 

proposed new power plant generating coal ash will also use dry tomb landfills rather than 

surface impoundments. However, if regulations are going to be promulgated by EPA my fear is 

these regulations will not only address surface impoundments but also coal ash in general 

especially if EPA determines coal ash is a hazardous waste. We currently issue our state solid 

8
waste rules to permit disposal of coal ash. We use rules and standards governing our municipal 

solid waste facilities - better known as Subtitle D facilities- for coal ash disposal facilities. We 

may need standards for surface impoundments such as the TVA like facilities but to identify coal 

ash as a hazardous waste would be a mistake. Managing coal ash according to applicable 

Subtitle D standards are adequate to managing coal ash in a dry tomb landfill situation. 

Tennessee

March 31, 2009 

Matt Hale, Director 

Office of Resource Conservation and Recovery 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, NW 

Washington, D.C. 20460 

RE: TN Recommendations for Regulation of Coal Combustion By-Products by EPA 

Dear Mr. Hale: 

The Tennessee Department of Environment and Conservation (the Department) appreciates the 

opportunity to submit recommendations for the regulation of Coal Combustion By-Products 

(CCBs) to the U.S. Environmental Protection Agency (EPA). Tennessee is home to six active 

coal fired power plants. These plants produce approximately 2,000,000 cubic yards or more of 

coal ash per year. The Department has worked with the disposal of coal ash for many years. 

Garey Mabry, the Manager of our State Hazardous Waste Management Program, is 

participating in the Association of State and Territorial Solid Waste Management Officials, and 

has informed the Department of EPA’s effort to collect recommendations from states about the 

regulation of CCB waste. We understand that EPA has set a goal of issuing draft CCB 

regulations by the end of this year. 

Attached with this letter are recommendations from Tennessee for the regulation of CCB wastes 

along with data from the analysis of coal for Total Metals and Toxicity Characteristic Leaching 

Procedure Metals. From our perspective, the regulation of CCB waste should be guided by 

sound science and provide protection of public health and environment. It is our 

recommendation that CCB waste be managed as a solid waste, with disposal facilities having 

design criteria similar to that for Municipal Solid Waste Landfills under RCRA Subtitle D. 

Do not hesitate to contact me or Garey (615 532-0845 & Garey.Mabry@state.tn.us) if you have 

any questions or concerns about our recommendations. If there is a need for state participation 

with EPA with the development of a regulatory path for management, disposal and beneficial 

reuse of CCB waste, we would welcome the opportunity. 

Sincerely, 

Chuck Head 

9
CC: Paul Sloan 

 Paul Davis 

 Mike Apple 

 Garey Mabry 

 Stan Meiburg 

 Tom Welborn 

 Alan Farmer 

 Mary T. Zdanowicz 

Attachment 1 

Tennessee Department of Environment and Conservation 

Recommendations for Regulatory Oversight 

Coal Combustion Byproducts in Landfills & Surface Impoundments 

The Tennessee Department of Environment and Conservation (the Department) appreciates the 

opportunity to provide input to the US Environmental Protection Agency (EPA) regarding the 

regulation of coal combustion byproducts (CCBs). The Department has considered the current 

requirements for CCB regulation; the constituents contained in CCBs and reviewed the industry 

practices for generation, collection, storage, treatment, disposal, and beneficial reuse of CCBs. 

Any changes to existing requirements should be made using sound science with the goal of 

protection of the public health, public safety, and the environment. The Department’s 

recommendations are presented in outline form, anticipating that as EPA develops draft CCB 

regulations, states will be provided an opportunity to provide input and the logic and science 

supporting their position. 

1. Are additional federal regulations needed to insure that CCBs are managed properly across 

the United States? 

Tennessee does not believe that additional regulation of CCBs at the federal level is 

necessary. However, should US EPA adopt rules, the states should be allowed to 

implement them. Tennessee regulates the disposal of CCBs as an industrial waste under 

the TN Solid Waste Management Act, T.C.A. 68-211-101 et seq. The Department regulates 

the effluent discharged from settling ponds and surface impoundments via the TN Water 

Quality Control Act, T.C.A 69-3-101 et seq. We are reviewing our regulations to determine if 

amendments are necessary to insure that catastrophic failures such as the TVA Kingston 

Coal Ash release do not occur again. 

2. Should CCBs be regulated as a Solid Waste via RCRA Subtitle D or as a Hazardous Waste 

via RCRA Subtitle C? 

The Department has been reviewing analytical data on CCBs since the early 1990s, when 

developing our existing rules permitting coal ash fill facilities. As a result of the December 

22, 2008, coal ash release from the TVA Kingston Fossil Plant, there have been many more 

coal ash samples analyzed for many parameters such as Total Metals, TCLP Metals, 

Polynuclear Aromatic Hydrocarbons, Solvents and Radioactive Materials. None of the 

10
analytical results indicated levels that would classify coal ash as a characteristic hazardous 

waste. 

Similarly, our testing of “gypsum”, produced as a CCB, did not reveal any chemical 

constituents that rise to hazardous waste levels. 

None of the analytical results from coal ash samples we have reviewed were at levels for 

TCLP metals that approach the concentration that would categorize either coal ash or 

gypsum as a characteristic hazardous waste. We have great success in the beneficial 

reuse of CCBs. The Department strongly supports continued regulation of CCBs as solid 

wastes subject to the RCRA Subtitle D Program. Regulating coal ash and gypsum as a 

hazardous waste greatly reduces the opportunity to beneficially reuse this waste and would 

increase the coast of CCB waste management by at least an order of magnitude. 

3. Regulatory Standard Recommendations for CCBs. 

In Tennessee, the Department sees necessary regulatory management of CCBs during 

three distinct handling activities: Management and Disposal in Surface Impoundments, 

Disposal into Landfills, and Beneficial Use. Regulatory standards for the material must be 

standardized from the point it is first generated. 

A. CCB Surface Impoundments 

1. Surface impoundments should be regulated under the state Solid Waste 

Management Program. Outfalls would continue to be monitored under the Water 

Quality Control Act. 

 

2. Often surface impoundments are closed as solid waste landfills after having been 

filled with coal ash. Existing standards for disposal facilities should be used in 

designing these facilities. 

3. New and Expansion of Surface Impoundments - The Department is evaluating 

whether new surface impoundments and expansions of existing CCB surface 

impoundments should be required to meet new design criteria and operating criteria. 

Any new regulations will be developed under the state Solid Waste Management 

Program. 

a. Design requirements should include: 

i. A stipulation stating either (1) the surface impoundment shall be used for 

treatment and storage for CCB with CCB removed for disposal or beneficial 

reuse or (2) the surface impoundment shall be closed as a solid waste 

landfill; 

ii. Design criteria based on the chemical characteristics of the CCB; 

iii. Appropriate containment measures ( e.g. liner); 

iv. Ground water monitoring system; 

v. Installation of piezometers to monitor ground water levels around surface 

impoundment; 

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vi. Siting criteria which determines the site geologic conditions stipulating the 

site is geologically stable and specifies separation from ground water and 

streams; 

vii. Geologic buffers; 

viii. Stability analysis; 

ix. Closure plan with cap design; 

x. Post closure plan; and 

xi. Financial assurance. 

b. Operating criteria should include: 

i. Structural stability inspection program for impoundments utilizing dikes; 

ii. Weekly measurement of free board; 

iii. Weekly inspections for seepage with requirements for immediate repair if 

seepage discovered; 

iv. Regular maintenance of dikes including removal of trees, shrubs, bushes, 

etc. growing in the dikes; 

v. Ground water monitoring with semi-annual sampling for total metals; 

vi. Operating methods for ash removal, if removed. 

4. Existing CCB Surface Impoundments – These units should be required to meet 

specific operating criteria and to meet new requirements for financial assurance and 

closure. These regulations are likely to be developed under the existing state Solid 

Waste Management Program. 

a. Requirements should include: 

i. Submission of a permit application including the engineering design of the 

surface impoundment if not previously submitted; 

ii. A stipulation stating either (1) the surface impoundment shall be used for 

treatment and storage for CCB with CCB removed for disposal or beneficial 

reuse or (2) the surface impoundment shall be closed as a solid waste 

landfill; 

iii. Installation of ground water monitoring wells and semi-annual ground water 

monitoring for total metals; 

iv. Installation of piezometers to monitor ground water levels around surface 

impoundment; 

v. Conduct a structural stability and integrity analysis with plans for repair or 

closure if structural stability and integrity are in question; 

vi. Require scheduled structural stability testing and integrity analysis; 

vii. Weekly measurement of free board; 

viii. Weekly inspections for seepage with requirements for immediate repair if 

seepage discovered; 

ix. Regular maintenance of dikes including removal of trees, shrubs, bushes, 

etc. growing in the dikes; 

x. Closure plan with cap design; 

xi. Post closure plan; 

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xii. Operating methods for ash removal, if removed; and 

xiii. Financial assurance. 

B. CCB Landfills 

1. Landfills constructed to receive CCBs should be regulated under the existing state 

Solid Waste Program. 

 

2. The Department is evaluating whether new and expansions of existing CCB landfills 

should be required to meet new design criteria and operating criteria. Any new 

regulations will be developed under the state Solid Waste Program. Tennessee 

believes this is best achieved by permitting monofill disposal facilities following the 

Tennessee Class II Industrial Landfill design criteria. The Class II Industrial Landfill 

design criteria are equivalent to the design criteria for Class I Municipal Landfills with 

an opportunity for variances upon approval by the Department. Standards would 

include the requirement for a leachate collection system and financial assurance. 

3. Existing CCB landfills should be required to meet specific operating criteria and to 

meet new requirements for financial assurance and closure. These regulations will 

be developed under the state Solid Waste Program. 

Requirements should include: 

a. Installation of ground water monitoring wells and semi-annual ground water 

monitoring for total metals; 

b. Installation of piezometers to monitor ground water levels around surface the 

landfill; 

c. Conduct an initial structural stability and integrity analysis with plans for repair or 

closure if structural stability and integrity are in question; 

d. Require scheduled structural stability testing and integrity analysis; 

e. Weekly inspections for seepage with requirements for immediate repair if 

seepage discovered; 

f. Regular maintenance of berms including removal of trees, shrubs, bushes, etc. 

growing in the berms; 

g. Closure plan with cap design; 

h. Post closure plan; and 

i. Financial assurance. 

4. Beneficial Reuse of CCBs 

Tennessee successfully promotes CCBs in beneficial uses. CCBs often have the 

physical properties to be used beneficially in structural fills and other projects. Given 

the goal to reduce solid waste and beneficially reuse materials that are solid waste in 

lieu of virgin products, regulatory flexibility should be maintained to allow CCBs to be 

used as structural fill material, cement and concrete amendment, etc. The 

Department maintains clear regulatory requirements that stipulate that each source 

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of the CCBs must meet specific physical and chemical properties before the 

proposed beneficial reuse is approved by the state. 

Tennessee strongly recommends that any regulatory framework adopted by US EPA 

should not limit the ability to reuse CCBs beneficially. 

Virginia

The Commonwealth of Virginia has established a comprehensive program to regulate coal 

combustion waste under the oversight of the Virginia Department of Environmental Quality 

(DEQ). The Virginia Solid Waste Management Regulations (VSWMR), 9 VAC 20-80, provide 

criteria for facilities that store, treat, or dispose of solid waste. Facilities that will dispose of coal 

combustion waste (CCW) in a landfill are required to meet the industrial landfill provisions of the 

VSWMR, to obtain a permit in accordance with those regulations, and are subject to regular 

inspection by solid waste compliance staff. These industrial landfill requirements provide 

standards for siting, design, operation, monitoring, closure, and post-closure of the landfill. The 

VSWMR also allow for certain exclusions and exemptions from CCW’s regulation as a solid 

waste when the material is beneficially reused (i.e., when used in manufacturing of products, 

used as base/sub-base fill under footprint of road, building, or other structure, and other uses as 

excluded/exempted by this regulation). Additionally, Virginia has promulgated a separate 

regulation, the Coal Combustion By-Products Regulation, 9 VAC 20-85, which provide 

regulatory criteria for the use, reuse, or reclaiming of these materials by applying them to or 

placing them on land in a manner other than addressed in the VSWMR. Coal combustion byproducts (CCB) are defined as residuals, including fly ash, bottom ash, boiler slag, and flue gas 

emission control waste produced by coal- fired electrical or steam generating units. CCW’s 

managed within surface impoundments and lagoons are regulated under state water control 

laws. These units are permitted and inspected by Virginia’s water program. 

As detailed above, Virginia has an effective regulatory program for management of CCW/CCB. 

EPA’s proposal to issue regulations regarding the management of CCW may impact these 

regulations and programs. The potential implications to Virginia’s beneficial use of CCB for 

each of EPA’s presented regulatory options are: 

(1) Regulate under RCRA Subtitle D (this was the decision made in 2000)

The effect on current allowed beneficial uses should be minimal unless specific prohibitions 

are included in this regulatory action. 

(2) Regulate under RCRA Subtitle C (likely using the authorities contained in Section 3004(x) of 

RCRA)

If EPA was to regulate CCW as a hazardous waste under the RCRA Subtitle C authorities, 

Virginia would no longer allow these materials to be beneficial reused under our CCB 

Regulations (9 VAC 20-85) and, also, there would be no beneficial reuse 

exclusions/exemption under our Virginia Solid Waste Management Regulations (9 VAC 20-

80), as well. 

(3) Regulate under a hybrid system of RCRA Subtitles C and D

The effect of this option will most likely depend on the regulation developed by EPA. 

Possibly some beneficial uses may still be allowed contingent upon how EPA will classify 

CCW. 

It should be noted that full effect of this action will not be known until proposed language is 

provided by EPA. However, any decisions to regulate the management and disposal of coal 

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ash will likely have an implication for Virginia’s regulatory programs including: the need to 

undertake regulatory action; authorization/approval for implementation (if necessary); budgetary 

impacts; and staffing/workload resource issues related to implementation (i.e., possible 

permitting/compliance/enforcement program impacts. The implications could have a dramatic 

impact on the all ready strained budgets of many state environmental agencies. It is hoped that 

EPA’s decision will include review of the work that many states, including Virginia, have 

undertaken to regulate coal combustion waste. 

West Virginia

I have been regulating coal ash facilities for 26 years for the State of West Virginia. I have 

never found a TCLP or other chemical characterization that would indicate that Coal ash could 

be labeled as a hazardous waste. Most of the time the metal concentration which would be the 

main characteristic that could be considered hazardous are at or below MCL for Drinking water. 

Wisconsin

March 16, 2009 

Matt Hale, Director 

U.S. Environmental Protection Agency 

1200 Pennsylvania Ave. NW 

Mail Code 5301P 

Washington, D.C. 20460 

SUBJECT: State Implications of Regulatory Options for the Management of Coal 

Combustion Waste 

Dear Mr. Hale, 

Thank you for the opportunity to provide input regarding the U.S. Environmental Protection 

Agency’s re-evaluation of regulatory options for the management of coal combustion wastes 

(CCW) and the potential implications for State regulatory programs. 

The State of Wisconsin has formally provided testimony and submitted comments on this issue 

in the past, but we wish to reiterate our opposition to regulation of CCW as a listed waste under 

RCRA Subtitle C, or to a hybrid approach, such as has been used with cement kiln dust (CKD). 

Copies of our responses are attached to this letter along with a summary table of our estimated 

rate of beneficial reuse of CCW in 2006. 

To summarize, we believe that regulation of CCW under the current structure of RCRA Subtitle 

C is inappropriate given the level of environmental hazard posed by these materials. We 

remain deeply concerned that such a categorization would have a significant adverse impact to 

our ongoing successful efforts to beneficially reuse these materials. This beneficial use 

program avoids the need for landfill space with its associated impacts, reduces greenhouse gas 

emissions, provides for water conservation and reduces energy consumption. We recommend 

that if federal regulation of CCW is determined to be necessary, these wastes be regulated 

using the existing regulatory model for municipal solid waste under Part 258 of RCRA Subtitle 

D. 

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If you have any further questions, please contact Gene Mitchell, Chief of our Recycling and 

Solid Waste Section at (608) 267-9386 or gene.mitchell@wisconsin.gov 

Sincerely, 

Allen K. Shea, Administrator 

Air and Waste Division 

Wisconsin Department of Natural Resources 

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