October 30, 2009

SENT ELECTRONICALLY AND OVERNIGHT MAIL

Ms. Courtney Higgins

Office of Information and Regulatory Affairs

Office of Management and Budget

New Executive Office Building

725 17th Street, NW

Washington, DC 20503

Dear Ms. Higgins:

The Utility Solid Waste Activities Group ("USWAG") would like to thank you for 

the opportunity to present the electric utility industry’s views regarding the federal 

regulation of coal combustion byproducts (CCBs), RIN 2050-AE81, “Standards 

for the Management of Coal Combustion Residues Generated by Commercial 

Electric Power Producers.”

The purpose of this letter is to summarize our principal issues and to provide you 

with electronic copies of several reports we discussed at the meeting.

USWAG supports the development of federal regulations for CCBs. However, 

USWAG believes that CCBs should be regulated as non-hazardous waste under 

Subtitle D of the Resource Conservation and Recovery Act ("RCRA") rather than 

as hazardous waste under Subtitle C of the Act. Our arguments in support of this 

position can be summarized as follows:

Environmental Benefits of Subtitle D Standards

· EPA already is on record as saying that CCBs can be adequately 

regulated under Subtitle D standards. This issue is not disputed. In fact, 

EPA is sending the coal ash from the Tennessee Valley Authority’s 

Kingston spill to a RCRA Subtitle D facility -- having determined that this 

disposal option is environmentally protective.

· We understand that scientific and technical data has been presented to 

OIRA that demonstrates that CCBs do not qualify as a hazardous waste

using the typical methods for hazardous waste determination.
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· We also understand that the data shows that leachate from CCB landfills 

poses less of an environmental risk than leachate from municipal solid 

waste landfills which are regulated under Subtitle D.

Costs of Subtitle C Standards

· Should EPA propose to regulate CCBs as a hazardous waste under 

RCRA Subtitle C, the Agency would be selecting the most extreme and 

costly regulatory option available, when the much less costly Subtitle D 

non-hazardous waste option would provide the same level of 

environmental protection and preserve markets for CCB beneficial use.

Common sense and sound economic and environmental policy dictate 

that any federal program for CCBs be developed under RCRA's nonhazardous waste program. 

· If CCBs were regulated as hazardous waste, the economic impact on the 

utility industry would be enormous, resulting in power plants closures, 

increased electricity rates for consumers, corresponding power reliability 

concerns, and virtually eliminating all CCB beneficial uses. In 2000, 

following EPA’s Final Regulatory Determination that CCBs do not warrant 

hazardous waste regulation, the Agency solicited comment on the costs of 

regulating CCBs as hazardous wastes under RCRA Subtitle C. Our 

conservative annual cost estimate was $13.8 billion in 2000 – equivalent 

to $17 billion in 2008 dollars A copy of that analysis is enclosed.

· In contrast, EPA estimates the costs of Subtitle D, non-hazardous waste,

regulations would be $520M. A copy of that analysis, prepared by DPRA

for EPA in 2005, is also enclosed.

· Neither of these estimates included the capital costs associated with the 

phase out of existing surface impoundments and conversion of facilities to 

dry ash management. Enclosed is a copy of the study analyzing the 

economic impacts of mandated closure of CCB surface impoundments. A 

ten year phase-out of Surface Impoundments under a Subtitle D program 

would cost $39B, or $2.5B/year over 20 years. It should be noted that a

phase-out would be even more expensive under RCRA Subtitle C, and 

would be more costly under a shorter phase-out period. 

· Combining the costs of conversion and the additional cost of Subtitle C 

management results in total annual cost of nearly $20 billion per year. 

These costs represent more than 25 percent of coal generating revenues. 

Considering that half of all electricity in the U.S. is from coal-fired 

generation, the annual cost represents $370 per year for each of the 54 

million households that purchase coal-based electricity. This estimate 
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assumes that costs are directly passed through to customers rather than 

included in the rate base.

Additional Societal and Budgetary Costs to be Considered

In addition to direct compliance costs to the industry, USWAG recommends that 

OIRA assess other governmental budgetary and societal costs.

State budget costs: Twenty eight (28) state environmental protection agencies 

– the regulatory bodies responsible for administering any federal program for 

CCBs – have weighed in unanimously opposing regulating CCBs as hazardous 

waste. The states make a compelling case that Subtitle C regulation of CCB is 

technically unnecessary, as CCBs rarely if ever exhibit a hazardous waste 

characteristic, would devastate state budgets and draw resources away from 

more pressing infrastructure and true health issues. The Environmental Council 

of States ("ECOS") and the Association of State and Territorial Solid Waste 

Management Officials ("ASTSWMO") echo the views of the state environmental 

protection agencies, cautioning that regulating CCBs as hazardous waste would 

needlessly overwhelm hazardous waste disposal capacity, which is currently 2 

million tons a years. EPA's proposal would, in one fell swoop, add an additional 

130 millions tons of hazardous waste to the system in the form of CCBs. If even 

a fraction of CCBs currently disposed on-site by utilities are sent to off-site 

Subtitle C facilities, the Subtitle C disposal market would be overwhelmed. The 

system cannot accommodate this, the States cannot afford it, and it is not 

necessary to protect human health and the environment.

Federal Budget Costs: The federal government would also face increased 

costs as a result of this change in the designation of this waste stream. It would 

also make it much more difficult for the Federal Government to demonstrate 

progress toward reducing the quantity of hazardous materials disposed of as 

required by President Obama’s October 5th Executive Order on Federal 

Leadership in Environmental, Energy and Economic Performance. Federal 

Departments and Agencies (e.g. military departments, veterans hospitals, and 

GSA) burn coal for heat, steam, and electricity. Costs of these operations would 

increase significantly if CCBs are designated as hazardous wastes. In addition, 

electricity costs to all Federal Government consumers would increase. USWAG 

does not have access to the information necessary to determine the budgetary 

impact of these cost increases. OIRA should request that the Resource 

Management Offices obtain this data from their agencies before moving forward 

with this proposed determination so that appropriate adjustments to budget 

estimates can be included in the budgetary process.

Societal Cost Resulting from the Loss of Beneficial Use: Approximately 40 

percent of CCB materials are currently recycled for other beneficial uses. End 

users of CCBs oppose hazardous waste regulation because of the adverse 
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impact of such regulation on CCB beneficial use. Current users will not be willing 

to accept the liability risk for using a material that has been designated as 

“hazardous” by the federal government. We already are seeing adverse impacts 

on beneficial use merely from the stigma of a proposal to list CCBs as 

hazardous; ash marketers and end-users confirm this. State highway 

departments and DOTs oppose hazardous waste regulation because of the 

adverse impact to State highway projects and highway construction budgets. 

Unions and state Chambers of Commerce oppose hazardous waste regulation 

as unnecessary and resulting in additional job losses at a time when the Country 

can least afford any further blows to the economy. Loss of beneficial use 

markets increases societal costs in two ways: it requires current users to find 

alternative (and higher cost) substitutes, and it increases the volume of material 

that has to be disposed as a hazardous waste.

Reliability of Electricity Supplies: New federal mandates to close current coal

ash ponds and convert all ash management practices to meet hazardous waste 

management standards will force closure of existing coal-based electricity 

generation, due to economic considerations or site-specific physical limitations or 

both. The cost analysis of pond closures separately addressed this issue. For 

some power plants, the fixed costs associated with the conversion to dry 

management of CCBs would be too high to allow the facility to recover the 

conversion costs given the limited capacity of these units. If only a portion of the 

at-risk capacity needed to be replaced, annual energy replacement costs would 

be in a range of between $12 and $37 billion. State public utility commissions 

have taken the unusual position of weighing in because of the threat to electricity 

rates and reliability resulting from the extraordinary and unnecessary expense of 

hazardous waste regulation of CCBs. 

In sum, the economic ramifications of regulating CCBs as a hazardous waste 

would be enormous, with ripple effects on state and local governments, utilities, 

and small businesses that use CCBs, and the thousands of industries that use 

CCBs for beneficial uses (wallboard, concrete). USWAG is concerned that EPA 

has not accurately calculated the cascading adverse economic impacts resulting 

from the regulation of CCBs as hazardous waste.

A federal non-hazardous waste rule for CCBs under RCRA Subtitle D is clearly 

the preferred and justified approach. EPA has already concluded that Subtitle D 

regulations for CCBs would be environmentally protective, and equally important, 

such regulations would not harm beneficial use and would be implemented at a 

lower cost to industry, consumers and the states. 
DC2DOCS1-#1070887v1

Please feel free to contact me if you have additional questions or need or any 

additional information regarding the points discussed above.

Sincerely,

James R. Roewer

Enclosures

cc: Jordan Kislear, DOE

Diane Poster, CEQ