### 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. Thi s 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

1Florida

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 exampl e, 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 appropria te. Even a Subtitle D disposal requirement, if similar to MSW Landfills, is questionable. Hawaii has provided EPA with substantial comments

2on 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 prov ide 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 cons idering 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 characteristic s. 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 ve ry 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

.

3Sincerely,

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 opportuni ty 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, si te 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

4which 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 c ausing states to divert limited technicalresources 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 NPDESdischarge 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,

5mortar, 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. Ex isting 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 Missour i 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 st abilization provided they

meet certain criteria. One such user is t he Missouri Department of Transportation (MDOT), who uses fly ash in many of their highway projec ts. 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

6interpretation 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 te chnically 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 cont rols for coal combustion by-products. EPA should avoid a “one size fits all” approach t hat 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 deficienc ies 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

7Dear 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 s pecifically 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 perspecti ve, 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 characteri stics. 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 ta ilor to the concerns arising from CCW disposal and management.

Ohio EPA has valuable regulatory experience permi tting 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

8waste 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

9CC: 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 (CCB s). 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, Solvent s and Radioactive Materials. None of the

10analytical 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 Pr ogram. 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;

11vi. 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;

12xii. 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, ce ment and concrete amendment, etc. The Department maintains clear regulatory requirements that stipulate that each source

13of the CCBs must meet specific physi cal 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). Additi onally, 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 orplacing 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

14ash 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 y ears for the State of West Virginia. I have

never found a TCLP or other chemical characteriza tion 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 te stimony 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.

15If 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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