# Comment Summary and Response Document

Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities;

Proposed Rule

(Docket # EPA

- HQ

- RCRA

- 2009

- 0640)

Volume 11 :

Overfills Harmonization with ELG

December 2014i

Background

The U.S. Environmental Protection Agency (Agency or EPA) proposed regulations for the management of coal combustion residuals (CCR) which was published in the Federal Register on June 21, 2010. This proposal, under the Resource Conservation and Recovery Act (RCRA), addressed the risks from disposal of CCR generated from the combustion of coal at electric utilities and from independent power producers. Two regulatory options w ere proposed. Under the first option, EPA proposed to reverse its August 1993 Bevill Regulatory and May 2000 Bevill Regulatory Determinations regarding CCR and to list CCR as special wastes subject to hazardous waste regulations under subtitle C of RCRA w hen destined for disposal in landfill or surface impoundments. Under the second option, EPA proposed to leave the Bevill determination in place and regulate the disposal of CCR as non

- hazardous solid waste under subtitle D of RCRA by issuing minimum natio nal criteria. Both options would require , among other things, composite liners, groundwater monitoring, structural stability requirements, corrective action, and closure/post closure care.
EPA also solicited comments on all aspects of both proposed opt ions. The Agency
received over 450,000 comments on the proposed rule. The majority of the comments focused

on which regulatory path the Agency should pursue for regulating CCRs, i.e., RCRA’s subtitle C

or subtitle D. EPA also conducted eight public hear ings and took additional comments on the proposed rule. EPA has established three dockets for this regulatory action under Docket ID No.
EPA

- HQ

- RCRA

- 2009

- 0640, Docket ID No. EPA

- HQ

- RCRA

- 2011

- 0392, and Docket ID No.
EPA

- HQ

- RCRA

- 2012

- 0028

. All documents in these dockets are available at http://www.regulations.gov

. Although
listed in the index, some information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose dis closure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the OSWER Docket, EPA/DC, WJC West Building, Room 3334, 1301 Constitution Ave., NW, Washington, DC. The Public Reading
Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays.ii

The telephone number for the Public Reading Room is (202) 566

– 1744, and the telephone

number for the OSW ER Docket is 202

– 566

– 0276.
After reviewing all the comments and additional data received, EPA is promulgating a final rule to regulate the disposal of CCR as solid waste under s ubtitle D of RCRA. This rule
addresses the risks from structural failures of CCR surface impoundments, groundwater contamination from the improper management of CCR in landfills and surface impoundments and fugitive dust emissions. The Agency has developed seventeen volumes of the Comment Summary and Respons to
Comment document summarizing comments on major topics covered in the proposed rule (see table below) and the Agency’s responses to those comments, as well as a separate volume summarizing comments provided during public hearings. Since EPA is finalizing a rule under
subti tle D of RCRA, not all comments submitted on the subtitle C option have been address,
rather only those comments submitted on the proposed subtitle C rule that are also applicable to the final rule are addressed in the comment and response documents.

Volu me Topic
1 General Comments

2 RCRA Subtitle D Regulatory Approach (Legal issues/Self

- implementing

Design/Reliance on Certifications by an Independent Professional Engineer/Recordkeeping, State Submissions, Posting to the Internet/Finance Assurance/Alternative Approaches)

3 Scope and Purpose/Effective Dates/Applicability/Off

- site Disposal/Definitions
4 Location Restrictions
5 Design Criteria: Liners and Leachate Collection Systems
6 Design Criteria: Structural Integrity

7 Operating Criteria: Endangered species/Surface water/Inspections/Run

- on

Run

- off
8 Operating Criteria: Air Criteria
9 Groundwater and Corrective Actioniii

Volu me Topic
10 Closure and Post

- Closure Care
11 Additional Comments including Overfills/ Harmonization with E LG.
12 Beneficial Use
13 Risk Assessment
14 State Authorities, Programs and Regulations
15 Compendium of Damage Cases
16 Regulatory Impact Analysis (RIA)
17 EPA’s Assessment Program

This volume summarizes additional co mments received on o verfills and with the
harmonization of this rule with the ELG rule , in particular the technical requirements. Summary of Comments on Overfills
One issue presented in public comments for the proposed rule addressed how the Agency intends to regulate CCR la ndfills, also known as overfills, that are constructed over a closed CCR surface impoundment or landfill. An overfill is additional CCR disposal capacity located partially or entirely above a surface impoundment or landfill previously used for the disposal or storage of CCRs. Overfills can be defined as new, self

- contained units that are distinct and separate from the unit upon which they are located. On August 2, 2013, EPA published a Notice of data availability (NODA) and request for comments (78 FR 46940 ) on additional information obtained in connection with the proposed rule. To aid in the development of final requirements, EPA solicited data or information that directly addresses existing engineering guidelines or practices, as well as any regulatory re quirements governing the siting, design, construction, and long

- term protectiveness of overfills.
How technical standards apply to overfills
Several commenters, including electric utility companies, State governments, and trade associations, agreed with EP A that overfills or “vertical expansions” are commonly conducted to allow continuing use of sites and to avoid the need to develop these facilities at other sites. Some
commenters added that:iv

 The engineering design of an overfill can increase the stability of the underlying surface impoundment or landfill.

 The use of an overfill facility reduces the need for new infrastructure construction.

 An overfill avoids having to transport CCRs significant distances for off

- site disposal.

The commenters mentioned that several States have experience with overfills and have applied requirements such as liner systems, monitoring wells, and stormwater modeling on a

case

- by

- case basis using best engineering practices. They added that overfills are constructed in a
site

- spec ific manner and pose unique construction and operational issues depending on the site and the characteristics of the underlying unit.
Comments from the Electric Power Research Institute (EPRI) stated that in order to describe standard practices for this ty pe of construction, EPRI is developing a Technical Guidance for Construction Over Closed or Closing Coal Combustion Residual Ponds document for power companies. The commenter listed several issues requiring additional attention for overfills:
seismic and s tatic liquefaction, settlement, foundation improvement, partial overfills, groundwater upwelling, groundwater monitoring, and wastewater infrastructure.
In addition, the Agency specifically requested information or data that would allow EPA to address ques tions as they relate to CCR overfill units. Responses to these questions are
summarized below.

Location restrictions
Several commenters, most of whom were electric utility companies and trade associations, addressed location restrictions and urged EPA not to apply location restrictions for new units to overfill units. One of the commenters asserted that many of the potential risks associated with overfills have already been addressed by the operations of the original unit, and EPA should view the developme nt of these overfill units through its regulatory scheme for existing units (i.e., restrictions for floodplains and unstable areas) rather than the provisions for new units (i.e., restrictions for wetlands, fault areas, and seismic impact zones). The comme nter added that compliance with closure requirements is only tangentially related to the important considerations in designing and constructing overfill units. Another commenter observed that engineering issues most often identified with overfills include siting in an area with potentiallyv

poor foundations, potential for mass movement over existing CCRs, and inadequate structural elements such as liners and leachate collection systems, and all of these concerns are addressed in the existing location restri ctions by taking into consideration site

- specific conditions. The
commenter added that if a closed unit has a stable foundation and can handle the additional load and increased pore pressure, then this site should not be restricted based solely on not meet ing the proposed closure criteria. A State government suggested that overfills should not be prohibited unless the units are poorly sited, have foundational issues that preclude additional loading, or have significant preexisting contamination.

A few elect ric utilities also expressed an opinion about whether EPA should allow an overfill unit to be constructed over a partially closed unit, and they suggested that such an overfill should be allowed provided that it has an appropriate engineering design. One o f the commenters observed that additional measures should not be required when the underlying unit is large and closing before reaching its full capacity. Another commenter stated that the overfill
should be evaluated on a case

- by

- case basis with considera tion of the specific geotechnical and
environmental conditions.
Liner and leachate collection requirements
Several commenters, including electric utility companies and trade associations, asserted that liner requirements for new units should not be applica ble to overfills if these standards are already being met by the underlying unit. Commenters added that:

 if the underlying unit does not have a liner and leachate collection system, a composite liner could be installed for the overfill;

 the final rule should allow for alternative liner systems in the construction of overfills, provided that the alternative system will meet or exceed the performance standards of the proposed composite liner system;

 such alternative liner systems can take into considerati on variations in regional geology;

 to assess the need for a liner system, groundwater modeling should be used to establish water quantity and quality;

 a composite liner and leachate collection system for the overfill would serve essentially
the same functi on as a “cap” for the underlying unit; andvi

 the overfill should not be required to have its own independent leachate collection and leak detection system because they would not provide any additional environmental
benefit.

One company described a landfill v ertical expansion (structural fill) above a surface impoundment, where the ponded CCR and the dry CCR are integrated and closed as a landfill with a final cover that reduces or prevents infiltration. The commenter argued that placement of a liner system ov er the hydraulically placed CCR and under the overfill should not be required. Another company agreed that EPA should require capping of only the overfill, not both the surface of the underlying ash pond and the overfill, and the commenter asserted that a drainage layer, rather than an impermeable cap or liner, is needed between the old ponded ash fill and the new vertically expanded dry landfill.
Groundwater monitoring
Some commenters, including electric utility companies and trade associations, asserted t hat overfills should not be subject to groundwater monitoring requirements for new units if these standards are already being met by the underlying unit. Commenters added that:

 existing groundwater monitoring wells installed for the underlying unit, if the y cover the same area as the overfill, may be adequate to provide the necessary information to prevent contamination;

 such wells will presumably have available historic chemistry data, which may be useful in identifying changes;

 using the existing monitori ng system avoids the risk of having new wells that may compromise the integrity of the underlying unit;

 routine leachate quality monitoring of both disposal units could be performed to help characterize the source of any release identified through groundwa ter monitoring;

 if the underlying unit does not have a groundwater monitoring system in place, then the overfill unit should meet the groundwater monitoring requirements if they are technically appropriate;

 the groundwater monitoring system should be insta lled outside the waste boundary of the combined footprints and be designed based on site

- specific conditions; andvii

 groundwater monitoring requirements for an overfill should allow for flexibility with
State

- approved alternative monitoring and schedules that are dependent on site

- specific
conditions.

A few commenters addressed the question of whether groundwater monitoring should be required for a longer period when contamination could be released from either the underlying unit or the overfill. A State gover nment did not support a longer period because any groundwater effects would most likely come from the older unit rather than the overfill. One electric utility company urged that the monitoring period should be based on site

- specific hydrogeologic studies and modeling done for the combined units. A trade association and two electric utility companies, however, asserted that the time period should be extended to take into account the lifespan and post

- closure period of the overfill unit. Another electric uti lity company suggested that timeframes for monitoring should be consistent with the proposed post

- closure care requirements, which would provide the ability to request relief from post

- closure care requirements if a reduction in requirements is sufficient to protect human health and the
environment.
Inspection requirements
A few electric utility companies, two trade associations, and a State government commented on inspection requirements, and most of them favored annual inspections rather than weekly inspections. One company asserted that it would be inappropriate to use th e requirements for inspecting the structural integrity of surface impoundments for inspecting the placement of ash in an overfill. The commenter also observed that inspections during post

- closure care would be redundant. Another company supported the propo sed requirements for surface impoundments (weekly inspections by qualified personnel and annual inspections by an independent registered professional engineer) throughout the active life of the overfill. A third company recommended inspections by qualified personnel monthly and after significant precipitation events, with a possible decrease in inspection frequency during the post

- closure period, based on the performance of the underlying and overfill units.
Below is a detailed response to comments as descr ibed in the summary discussed above.8



### Part A: Overfills

I: How technical standards apply to overfills (CommentWorks 3.4.1.1.7)

II: Approaches for overfills (CommentWorks 3.8.2)

III: Location restrictions (CommentWorks 3.8.2.1)

IV: Liner and leachate collection requirements (CommentWorks 3.8.8.2)

V: Groundwater monitoring (CommentWorks 3.8.2.3)

VI: Inspection requirements (CommentWorks 3.8.2.4)

VII: Other requirements for overfills (CommentWorks 3.8.2.5)



### I : How T echnical S tandards A

pply to O verfills

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0057

- 7 Organization: Southern Company Commenter Type: Electric Utility Company
Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0067

- 13 Organization: American Electric Power Commenter Type: Electric Utility Comp any Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0069

- 7 Organization: Ameren Missouri Commenter Type: Electric Utility Company
Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0070

- 6 Organization: Ameren Energy Resources Company, L.L.C. Commenter Type: Electric Utility Company
Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0091

- 4 Organization: Texas Coal Combustion Products Coalition Commenter Type: Trade Association
Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0058

- 2 Organization: Geosynthetic Materials Association (GMA) Commenter Type : Trade Association
Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0066

- 7 Organization: Arizona Public Service Company (APS) Commenter Type: Electric Utility Company
Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0067

- 6 Organization: American Electric Power (AEP) Commenter Type: Electric Utility Group9

Comment 1 : We agree with EPA that the development and construction of CCR landfills or surface impoundments over pre

- existing CCR surface impoundments and landfills termed “overfills” by EPA is an expanding practice that allows continuing use of sites and avoids the need to develop these operations at other sites. We also believe that EPA should recognize that these new units are essentially vertical expansions of existing units and should not be classified as new units and not subject to requirements like location restricti ons for new units, nor should these expansions be subject to the liner and groundwater monitoring requirements for new units if these standards are already being met by the underlying unit. EPA Response: The Agency acknowledges and appreciates this comment . The Agency agrees that building overfills is an expanding practice in the U.S. for the disposal of CCR. As a point of clarification, however, in this final rule EPA an overfill is considered a “new” CCR landfill that is built on top of a “closed” CCR surface impoundment. Conversely, EPA considers vertical expansions to be an addition to an existing unit or an upward extension or expansion of a CCR unit that continues to receive the same type of CCR with respect to its physical form (i.e., sluiced or dry) both before and after the construction of the vertical expansion . For example, vertical expansions of a CCR surface impoundment would increase the storage or disposal capacity of CCR due to the increased height of the unit’s embankments. Vertical expansions retain their same operational status as either an existing or new unit. For example, if an existing CCR landfill is receiving CCR on the effective date of the rule, and then decides to incr ease the capacity of the unit over the next ten years

-- the unit remains an existing unit. The vertical expansion does not trigger a change in operational status of the unit from existing to new, rather the unit remains in the same operational status tha t it was on the effective date of the rule, i

. .e., existing. Moreover, the vertical expansion does not trigger additional technical criteria that have already been implemented
, i.e., location criteria

. The demonstration of complying with the location crit eria for unstable areas is a one

- time demonstration for an existing landfill as defined in the rule and the construction of a vertical expansion of the unit does not require additional demonstrations to be made. Existing units that vertically expand howeve r continue to be subject to all the technical criteria applicable to that unit , e.g., inspections and may have to adjust their implementation schemes to account for the vertical expansion, e.g., a revised fugitive dust monitoring plan or revised run

- on run

- off plan.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0065

- 6 Organization: Basin Electric Power Cooperative ( B asin Electric) Commenter Type: Electric Utility Company
Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0086

- 4 Organization: Dynegy Inc. (Dynegy) Commenter Type: Electric Utility Company
Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0076

- 7 Organization: Nebraska Public Power District (NPPD) Commenter Type: Electric Utility Company
Comment 2 : While overfills may present significant design and technical challenges, Basin Electric believes overfills should be classified as vertical expansions of existing facilities, similar to the approach taken by the EPA in its promulgation of the S ubtitle D rule in the early 199 5.10

Any lateral expansion, however, would be treated as a new facility and would need to comply with the requirements of the proposed rule

. EPA Response : The Agency agrees that significant design and technical challenges may be present when building a new CCR landfill over a closed CCR surface impoundment, ho wever the Agency disagrees that overfills and vertical expansions are the same. As explained in the previous response, vertical expansions are additions to existing units to increase disposal capacity and can be achieved by adding to an embankments’ height . Also, vertical expansion do not involve a change in the physical form of the CCR entering the unit

. A vertical expansion of a CCR surface impoundment will still accept sluiced CCR. If an owner or operator intends to manage dry CCR, then the surface imp oundment would have to close in accordance with the requirements of this rule and a new unit would have to be constructed on top of the closed unit, in compliance with all the technical criteria for a new CCR unit. Finally, the Agency concurs with the comm enter’s statement that lateral expansions of existing or new CCR landfills or CCR surface impoundments are considered new units.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0052

- 2 Organization: Pennsylvania Department of Environmental protection Commenter Type: State Government
C omment 3 : It is not necessary to have specific regulations for overfilling existing facilities. The capping of existing facilities and the placement of liner systems meeting existing design requirements has been done successfully for nu merous overfill s permitted in the state over the past 15

- 20 years. The performance of these facilities in regard to stability and groundwater protection has been highly successful to date. Having prescriptive overfill requirements beyond meeting the existi ng design and operating considerations required for a Subtitle D disposal facility is unnecessary

. EPA Response : The Agency agrees. In this rule, the Agency is not specifying specific technical requirements for units characterized as overfills. The Agency has concluded that the technical requirements being promulgated in th is rule for CCR landfills and CCR surface impoundments

are sufficient to support a standard under section 1008(a) or 4004(a) that requires the rule to be protective based on the record available at the time the rule is promulgated.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0059

- 7 Organization: Commonwealth of K entucky Commenter Type: State Government
Comment 4 : The A gency should allow for a CCR overfill unit to be constructed over a partially closed surface impoundment or landfill. The design plan and the construction certification should be signed by a professional engineer. Slope stability would be a n especially important factor. The proposed technical requirement s for new u nits are adequately protective. The proposed groundwater monitoring requirements would be adequate for partial overfills.11

EPA Response : The Agency disagrees that an overfill should commence construction over a partially closed CCR surface impoundment. Absent any documented data that would support a decision to allow this type of activity, the Agency has c oncluded that there exists little information to allow the Agency to make a determination that this type of activity is protective of hum an health and the environment. As such, the Agency is requiring that a CCR surface i m poundment complete closure before an owner or operator commences the construction of a new CCR landfill overtop the closed unit. Furthermore, the Agency agrees that slop e stability is an important factor and as such the Agency is promulgating requirements as part of the design criteria for new CCR landfills.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0062

- 1 Organization: GSE Environmental Commenter Type: Other Company
Comment 5 : GSE would like to ensure that EPA is aware of all pertinent information related to the effective use of geosynthetic materials for waste containment. The Geosynthetic Institute (Drs. Robert and George Koerner, Folsom, Pa.) website contains a par tial index of the U.S. EPA documents that are related to the use of geosynthetics. The complete list is linked via the webpage is here: http://www.geosynthetic

- institute.org/epa.html . Clearly, geosynthetic materials have been well examined and proven to b e effective.
EPA Response: The Agency acknowledges and appreciates this comment. Geosynthetic materials were reviewed as part of the liner design requirements of the rule. The commenter is referred to the preamble and comment response document for design standards. The preamble discussion can be found in Unit VI.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0064

- 5 Organization: Florida Electric Power Coordinating Group Inc. (FCG) Commenter Type: Trade Association
Comment 6: In Florida, overfills are known as vertical expansions. In recent years, FCG members have obtained state approvals for the vertical expansion of their CCR landfills. These expansions range from 6 to 100 acres in size. It is important that FCG members can continue to construct vertical expa nsions of their CCR landfills, particularly at sites where there have been no significant adverse impacts to human health and the environment. Florida has vast experience permitting CCR landfills and surface impoundments and there have been no reported off

- site impacts to drinking water resources in Florida associated with the operation of these facilities. It is important that states like Florida are able to continue to apply this experience, maintain the regulatory flexibility to address site

- specific con cerns and continue to implement a successful regulatory program.
EPA Response : The Agency acknowledges and appreciates this comment. In this rule the Agency is not precluding the vertical expansion of any CC R unit , however the unit must remain in compliance with all the technical requirements applicable to that unit. For example, if a vertical expansion of a CCR surface impoundments results in a CCR unit above the size criteria12

promulgated in the rule, the owner or operator must ensure that the u nit is in compliance with all the other requirements specified for these larger units.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0068

- 8 Organization: Consumers Energy Company Commenter Type: Electric Utility Company
Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0073

- 11 Organization: Tennessee Valley Authority Commenter Type: Electric Utility Company
Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0083

- 2 Organization: Iowa Department of Natural Resources (DNR) Commenter Type: State Government
Comment 7

: EPA should consider that CCR “overfills” are not generally initiated at “closure”, as one would think of closure in a municipal solid waste landfill sense, but rather at the point that a surface impoundment is approaching its “hydraulic capacity” to tr ansport CCRs across the impoundment by slurry. For example, consider an impoundment, likely broken up into a number of interconnected cells, that extends from left to right, with the discharge point and design head on the left. Head is constant, and even w ith booster pumps, the cells to the left closest to the discharge are readily filled to freeboard elevation, while the cells to the right are more difficult to fill. As hydraulic capacity is approached, it becomes significantly more difficult or impossible to transport ash production to the distil portions of the pond. At that point, the pond goes into dredge and stack operation in order to more efficiently utilize its capacity. At Consumers Energy, we initially expanded our dredge and stack operation by pr oviding for the construction of a landfill vertical expansion (structural fill) above the impoundment freeboard (not on the final cover or any liner system) and then converted to exclusive dry fly ash handling to complete the use of airspace in a controlle d, mechanically placed manner. It is important, in designing the structural fill, to provide for the structural integration of the ponded CCR and the dewatered and stacked or dry CCR into one structural entity that can be closed as a landfill with a final cover that reduces or prevents infiltration in order to minimize leachate.
EPA Response: T he Agency appreciates and acknowledges this comment. The commenter is referred to Unit V I of the preamble for a discussion on the application of this rule to vertical expansions and overfills. In addition, the commenter is referred to the discussion on beneficial use and the criteria by which a practice is determined to be beneficial use rath er than disposal. While the design and construction of groundwater monitoring systems for overfills may be technically more challenging, the final standards already allow for the construction of a multi

unit system. The performance standards and technical specifications laid out in the technical criteria developed for this rule are equally as applicable to overfills (and as protective) as to other new units . O verfills will need to comply with both the requirements applicable to the closure of surface impo undments or landfills, and with all of the technical requirements applicable to new landfills. Thus, overfills cannot be constructed unless the underlying foundation

— i.e., the existing CCR surface impoundment has first been dewatered, capped, and complet ely closed. And because overfills are considered to be “new CCR landfills,” the design and construction of13

such units must comply with the technical requirements that address foundation settlement, overall and side slope stability, side slope and subgrade reinforcement, and leachate collection and groundwater monitoring system requirements, which will all need to be evaluated independent of the underlying CCR disposal unit to ensure that the overfill design is environmentally protective. This evaluation m ust also be certified by a qualified professional engineer.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0076

- 4 Organization: Nebraska Public Power District (NPPD) Commenter Type: Electric Utility Company
Comment 8 : EPA should not consider prohibiting the construction of overfills over surface impoundments and landfills that were not closed in accordance with the closure criteria in the June 2010 proposed rule. The construction of overfills has many potential environmental and economic benefits when enginee red and evaluated appropriately. EPA Response : The Agency agrees with the commenter that the construction of overfills may have many potential environmental and economic benefits. However, the Agency, is requiring that a n existing CCR surface impoundment be closed in accordance with the requirements of the rule before a new unit can be placed . Inactive surface impoundments have the option to dewater
, c ap and close within three years

. This type of closure does not preclude the construction of an overfill o ver the unit, provided that it meets all the technical criteria applicable to a new CCR unit s

. The commenter is referred to Unit VI of the preamble for a discussion of closure and closure timeframes

.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0086

- 5 Organization: Dynegy Inc. (Dynegy) Commenter Type: Electric Utility Company
Comment 9 : As Dynegy believes an overfill should be allowed to be constructed overtop an unclosed impoundment, Dynegy also believes the rules should not prohibit a CCR overfill un it from being constructed overtop a “partially closed” surface impoundment system. In most such situations, the overfill’s compliance with EPA’s proposed CCR landfill liner and groundwater monitoring system requirements would be ad equate to cap the unclose d port ion to ensure environmental protection

. EPA Response : The Agency disagrees

. As discussed in Unit VI of the preamble
, overfills must comply with both the requirements applicable to the closure of a n existing CCR surface impoundment or landfill and with all of the technical requirement applicable to new landfills, i.e., a CCR surface impoundment to be closed before an overfill can be constructed on top of the unit.14

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0078

- 3 Org anization: Alliant Energy Corporate Services, Inc Commenter Type: Electric Utility Company
Comment 10: As EPA outlines in the NODA, issues relating overfills are technically complex and may require the CCR rule to be tailored to address these specific issues. This is particularly relevant to landfills in states where “overfills” are regulated. Notwithstandi ng EPA’s contention that North Carolina is the only state with specific “overfill” regulation, Alliant Energy’s “vertical expansions” of existing landfills in Wisconsin is a regulated activity. Vertical expansions are equivalent to overfills as that term i s used by EPA in the NODA and are subject to state regulation in Wisconsin

. EPA Response : The Agency acknowledges and appreciates this comment

. EPA distin guishes generally between an overfill and a vertical expansion . An overfill is a new CCR landfill built on top of a closed CCR surface impoundment. Whereas a vertical expansion, is the added disposal capacity of a unit achieved by increasin g the height of the surrounding embankment or slope. In this rule, EPA is promulgating a subtitle D approach for the disposal of CCR in landfills and surface impoundments. The Agency is not promulgatin g specific technical criteria for overfills, rather the Agency has concluded that the technical criteria for CCR landfills and CCR surface impo undments are sufficient to address potential overfill situations. Moreoever, the Agency provides flexibility in the rule for the construction and operation of overfills as new CCR units. Given the lack of information on the design, construction and maint enance of an overfill, the Agency has chosen to rely on the technical criteria established for CCR surface impoundments and CCR landfill s concluding that they are equally protective for overfills

. .

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0083

- 2 Organization: Iowa Department of Natural resources (DNR) Commenter Type: State Government

Comment 11: : Impacts to groundwater have been noted at Iowa unlined CCR landfills whose in

place waste volumes approximate those of the structural fills included in the document titled “Structural Fills That Have Resulted In Damage Cases”. Due to this documented groundwater contamination, the DNR supports the development of rules that require construction of a single composite liner and leachate collection system in a ny overfill (vertical expansion) unit located on the footprint of a closed or partially closed CCR landfill. In Iowa, dozens of disposal units have been constructed at municipal solid waste (MSW) landfills as overfills over existing MSW consisting of a sin gle composite liner and leachate collection system. Our experiences at these MSW landfills indicate that overfills can be designed and constructed in a manner that is protective of groundwater, provided adequate foundational analyses is performed. Since di fferential and total settlements would be expected to be greater at MSW landfills than at CCR landfills, one could expect that protective overfills at CCR landfills are also achievable. Because of this, airspace should not be outright prohibited from usage as a disposal area, and any such prohibitions should be reserved for landfills that are poorly

- sited, have foundational issues that preclude additional loading, or have significant preexisting contamination

. EPA Response : EPA appreciates and acknowledges this comment. The commenter is referred to Unit VI of the preamble for a discussion on overfills. The Agency agrees with the claims that15

protective overfills at CCR sites are achievable, and that use of airspace should not be prohibited outright. However, the Agency has concluded that while there may be technical issues relating to the design, construction, and maintenance of overfills, the technical standards for CCR landfills are sufficiently flexible that no modifications a re necessary to accommodate such units. The performance standards and technical specifications laid out in the technical criteria developed for this rule are equally as applicable to overfills (and as protective) as to other new units. In essence, EPA is retaining the approach from the proposal that overfills will need to comply with both the requirements applicable to the closure of surface impoundments or landfills, and with all of the technical requirements applicable to new landfills. Thus, new landf ills, e.g., overfills cannot be constructed unless the underlying foundation

— i.e., the existing CCR surface impoundment has first been dewatered, capped, and completely closed. And because overfills are considered to be “new CCR landfills,” the design and construction of such units must comply with the technical requirements that address foundation settlement, overall and side slope stability, side slope and subgrade reinforcement, and leachate collection and groundwater monitoring system requirements, whi ch will all need to be evaluated independent of the underlying CCR disposal unit to ensure that the overfill design is environmentally protective. This evaluation must also be certified by a qualified professional engineer.

Comment Number: EPA

- HQ

- RCRA

- 2012

— 0028

- 0095

- 9 Organization: Duke Energy Commenter Type: Electric Utility Company
Comment 12 : Duke Energy agrees with EPA when it correctly noted in the current NODA that the development and construction of CCR landfills over pre

- existing CCR surface impoundments and landfills is an expanding practice which was neither considered nor accounted for in the 2010 CCR proposal. [Footnote 17: See Volume 78 Federal Register No.149 at 46946.] Duke Energy agrees with EPA that the appropriate technical standards should be included into the proposed rule regulatory language to address the construction, operation and maintenance of these disposal units, termed “overfills” by EPA. Including technical standards into the existing proposed rule language [Footnote 18: S ee Federal Register Volume 75 No 118 June 21, 2009 at 35252.] in the form of a regulatory test does raise the question of whether or not this would be considered a substantial change to the original proposal. This would require EPA to go through public not ice and comment to provide an opportunity for stakeholder comments on that new language. As background, EPA should be aware that many utilities choose to construct overfills because they have very limited possibilities for permitting and constructing new d isposal units, which often take many years. In our the 2010 comments, Duke Energy highlighted the difficulties associated with acquiring new land, permitting new disposal capacity, constructing landfills, and Duke Energy’s direct experience with overfills. [Footnote 19: See Duke Energy Comments submitted to USEPA on Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities; Proposed Rule; 75 Federal. Register 3512 8 (June 12, 2009)” submitted to EPA Docket # EPA

- HQ

- RCRA

– 2009

– 0640 November 19, 2010 pgs. 14

- 17] The construction of new landfills and surface impoundments over surface impoundments no longer in service provides an alternative to off

- site disposal capa city (which often requires transporting CCR significant distances awa y from the generating station). Much like all CCR units permitted and16

constructed on greenfield sites, overfills are constructed in a site

- specific manner and pose unique construction and operational issues depending on the site and the characteristics of the surface impoundment no longer in service

. EPA Response: The Agency appreciates and acknowledges this comment. The commenter is referred to Unit VI of the preamble for a discussion of overfills. Upon review of this and other comments, the Agency has concluded that while there may be technical issues relating to the design, construction, and maintenance of overfills, the technical standards for new CCR landfills are sufficiently flexibl e that no specific technical criteria are necessary to accommodate such units

. An overfill is considered a new CCR landfill built on top of a closed CCR surface impoundment

. Whereas a vertical expansion, is the added disposal capacity of a unit by achiev ed by increasing the height of the surrounding embankment or slope. Given the lack of information obtain ed on the design, construction and maintenance of an overfill, the Agency has chosen to rely on the technical criteria established for new CCR landfill s guiding the construction of an overfill.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0086

- 3 Organization: Dynegy Inc. (Dynegy) Commenter Type: Electric Utility Company
Comment 13 : Based on its experience designing and constructing an overfill, Dynegy’s offers the following responses to particular questions posed in the NODA concerning overfills (78 Fed. Reg. at 46947). In general, Dynegy believes that any technical requirements EPA establishes in the final rule for overfills must provide flexibility to a ddress site

- specific conditions

. EPA Response: The Agency appreciates and acknowledges this comment. As discussed in the preamble to this rule, the Agency has incorporated flexibility into many of the technical criteria being finalized in this rule.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0101

- 2 Organization: AMEC Environment & Infrastructure, Inc. Commenter Type: Other Company
Comment 14 : Obviously, these wet to dry conversions must rely on sound science and good engineering to meet current and future safety standards. The civil and geotechnical engineering community has the resources readily available to retrofit and re

- design dry storage facilities (landfills) to provide safe construction and operations and provide overall safeguards to the environmen t. EPA Response : The Agency acknowledges and appreciates this comment.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0102

- 2 Organization: Electric Power Research Institute (EPRI) Commenter Type: Trade Association17

Comment 15: As pointed out in the NODA, there are few, if any, standard practices developed for this type of construction. To help fill this gap, EPRI is developing a Technical Guidance for Construction Over Closed or Closing Coal Combustion Residual Ponds document fo r power companies. While the guidance is primarily for constructing landfills over closed ponds, it will also address building other facilities over closed ponds, including athletic fields and parks, solar installations, wastewater treatment facilities, an d other structures. EPA Response : The Agency acknowledges and appreciates this comment.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0076

- 5 Organization: Nebraska Public Power District (NPPD) Commenter Type: Electric Utility Company
Comment 16: New overfills can be constructed over partially closed surface impoundments or landfills in a manner that will be both economical and protective of human health and the environment with appropriate engineering design. New CCR overfills should be evaluated on a

case

- by

- c ase basis with consideration of the specific geotechnical and environmental conditions present

. EPA Response : The Agency disagrees that overfills should be constructed over a partially closed CCR surface impoundment s . Absent any documented data that would support a decision to allow this type of activity, the Agency has c oncluded that there exists little information to allow the Agency to make a determination that this type of activity is protective of human health and the environment. As such, the Agency is requiring that a CCR surface impoundment complete closure before an owner or operator commences the construction of a new CCR landfill overtop the closed unit.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0103

- 12 Organization: PPL Services Corporation Comm enter Type: Electric Utility company
Comment 17

: Many of the potential risks associated with overfills have already been addressed by the operations of the original unit, and EPA should view the development and construction of these overfill units through its regulatory scheme for existing units rather than the provisions for new units. Therefore, EPA should not impose location restrictions on overfills for new CCR landfills (i.e., wetlands, fault areas and seismic impact zones) in addition to the restricti ons that would apply to existing landfills (i.e., floodplains and unstable areas). Because these units are expansions of existing units rather than the development of new units, EPA should only be considering whether to apply the location restrictions for existing units to overfills (i.e., floodplains and unstable areas). EPA Response: EPA disagrees with the commenter’s assertion that the Agency should not apply location restrictions to existing CCR surface impoundments or CCR landfills. In the proposed

ru le preamble, EPA explained the rationale for applying t he provisions to existing CCR surface impoundments, and the commenters have submitted nothing to rebut that rationale. Thus, EPA18

maintains its determination that application of the location standards to existing CCR surface impoundments is necessary to achieve the standard in section 4004(a). Absent the location restrictions being promulgated, the risk of impacts to human health and the environment from the rapid and catastrophic destruction of CCR s urface impoundments sited in these sensitive areas would exceed acceptable levels. In addition, t he Agency is finalizing, as proposed, the unstable area location restriction for existing CCR landfills because the record clearly shows that failure of CCR units in these areas (e.g., due to instabilities in Karst terrains ) have and in all likelihood would continue, in the absence of the restrictions in the final rule, to result in damage cases where constituents from CCR are released affecting both groundwat er and surface waters. As the Agency stated in the proposed rule, the impacts resulting from the failure of CCR units from location instability are of far more concern than any disposal capacity concerns resulting from the closure of existing CCR disposal units in unstable areas.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0109

- 7 Organization: Hoosier Energy Rural Electric Cooperative, Inc. (Hoosier) Commenter Type: Electric Utility Company
Comment 18 : Hoosier Energy believes that constructing a CCR facility, wh ether it is an overfill or on virgin property, should be subject to the same structural and construction standards as any other facility. Hoosier currently has an “overfill” at our Frank E. Ratts station. The facility went through all the same permitting r equirements as any other facility and is now active. Preventing the placement of a landfill over what is essentially a structural fill when properly prepared for construction would be double regulating and is unnecessary. We do believe however, that other states may currently use practices that are equally protective of human health and the environment and would agree that such practices should be not prohibited. Having more than one way to engineer overfills is not a problem, but should be looked at as ind icative of how CCRs can be managed safely. EPA Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit V of the preamble for a discussion on the regulatory approach for this rule. T he commenter is also referred to Unit VI that discusses the technical requirements of the rule.



### II. Approaches for O verfills

No substantive comments

.


### III. Location R estrictions

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0060

- 13 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Trade Association19

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0064

- 8 Organization: Florida Electric Power Coordinating Group Inc, (FCG) Commenter Type: Trade Association
Comment 19 : T he construction of overfills is more akin to the vertical expansion of a pre

existing management unit than the creation of a new unit. Therefore, many of the potential risks associated with overfills have already been addressed by the operations of the original unit, and EPA should view the development and constr uction of these overfill units through its regulatory scheme for existing units rather tha n the provisions for new units. This issue directly arises when addressing the application of location restrictions on these units. EPA suggests in the NODA that the CCR proposal would impose location restrictions on overfills for new CCR landfills (i.e., wetlands, fault areas and seismic impact zones) in addition to the restrictions that would apply to existing landfills (i.e., floodplains and unstable areas). Because these units are expansions of existing units rather than the development of new units, EPA should only be considering whether to apply the location restrictions for existing units to overfills (i.e., floodplains and unstable areas). Furthermore, as we add ressed in our comments on the 2010 proposal, USWAG does not believe that EPA has conducted research or compiled record evidence suggesting that there is any need to retroactively apply the additional location restrictions applicable to new units (i.e., wet lands, fault areas and seismic impact zones) to existing units. Because overfills are vertical expansions of existing units, and existing units have not been shown to have any problems addressable by the imposition of the additional location restrictions f or new units, these restrictions naturally should not apply to existing units or overfills constructed at these locations. In essence, disposal units already exist at the locations on which the overfill will be constructed, and limiting possibilities for t he construction of this innovative unit will only serve to limit disposal options due to EPA’s unsupported contention that imposition of location restrictions reserved for “new units” are necessary for the vertical expansion of existing units. EPA Response : EPA distinguishes generally between an overfill and a vertical expansion. An overfill is a new CCR landfill built on top of a closed CCR surface impoundment. Whereas a vertical expansion, is the added disposal capacity of a unit by achieved by increas ing the height of the surrounding embankment or slope. If construction of a new CCR landfill is planned over a CCR surface impoundment, the impoundment must complete closure before the new CCR landfill can be built

. . The new landfill is subject to all th e technical requirements applicable to new units including location criteria. Including foundation settlement, overall and side slope stability, side slope and subgrade reinforcement, and leachate collection and groundwater monitoring system requirements, which will all need to be evaluated independent of the underlying CCR disposal unit to ensure that the overfill design is environmentally protective. This evaluation must also be certified by a qualified professional engineer. With respect to the applica bility of the location criteria, the commenter is referred to the discussion in Unit VI of the preamble on location criteria.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0071

- 5 Organization: Great River Energy (GRE) Commenter Type: Electric Utility Company
Comment 20 : Structural overfills are very similar to vertical expansions and existing solid waste disposal facilities. Since they are expansions of existing units, new location restrictions should20

not apply. Instead, the existing facility requirements shou ld be applied to their development. This should include the use of those viable components of an existing groundwater monitoring system. We believe EPA should proposed standards for comment on the development of these facilities

. EPA Response: In the pream ble discussion in support of the final rule, EPA distinguishes generally between an overfill and a vertical expansion. An overfill is a new CCR landfill built on top of a closed CCR surface impoundment. Whereas a vertical expansion, is the added disposal capacity of a unit by achieved by increasing the height of the surrounding embankment or slope. EPA is retaining the approach from the proposal that overfills will need to comply with both the requirements applicable to the closure of surface impoundments or landfills, and with all of the technical requirements applicable to new landfills. B ecause overfills are considered to be “new CCR landfills,” the design and construction of such units must comply with the technical requirements that address foundation settlement, overall and side slope stability, side slope and subgrade reinforcement, and leachate collection and groundwater monitoring system requirements, which will all need to be evaluated independent of the underlying CCR disposal unit to ensure that the overfill design is environmentally protective. This evaluation must also be certified by a qualified professional engineer.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0075

- 6 Organization: National Rural Electric Cooperative Association (NRECA) Commenter Type: Trade Association
Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0079

- 6 Organization: Xcel Energy Commenter Type: Electric Utility Company
Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0080

- 6 Organization: Dominion Resources Services, Inc. Commenter Type: Electric Ut ility Company
Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0076

- 5 Organization: Nebraska Public Power District (NPPD) Commenter Type: Electric Utility Company
Comment 21 : EPA should not apply the location restrictions for new units to “overfills,” nor should thes e expansions be subject to the liner and groundwater monitoring requirements for new units if these standards are already being met by the underlying unit. Such units are essentially vertical expansions of existing units and, as such, should not be classif ied as “new units” and subject to duplicative requirements already being met by the underlying unit. EPA Response: In the preamble discussion in support of the final rule, EPA distinguishes generally between an overfill and a vertical expansion. An overfill is a new CCR landfill built on top of a closed CCR surface impoundment. Whereas a vertical expansion, is the added disposal capacity of a unit by achieved by increasing the height of the surrounding embankment or slope. O verfills (i.e., new CCr l andfills constructed on top of closed CCR surface impoundments) will need to comply with both the requirements applicable to the closure of21

surface impoundments or landfills, and with all of the technical requirements applicable to new landfills. B ecause o verfills are considered to be “new CCR landfills,” the design and construction of such units must comply with the technical requirements that address foundation settlement, overall and side slope stability, side slope and subgrade reinforcement, and leacha te collection and groundwater monitoring system requirements, which will all need to be evaluated independent of the underlying CCR disposal unit to ensure that the overfill design is environmentally protective. This evaluation must also be certified by a qualified professional engineer.
Comment 22: EPA should not prohibit the construction of overfills in situations where the landfill would be built over a surface impoundment that was not closed in accordance with the closure criteria in Proposed CCR Rule. Closing first the underlying impoundment in accordance with the closure criteria in the Proposed CCR Rule before constructing the overfill because EPA’s proposed CCR landfill liner and groundwater monitoring system requirements would provide adequate assu rance of long

- term protectiveness of these units. The composite liner and leachate collection system for the new overfill would serve essentially the same function as a “cap” for the underlying impoundment. Similarly, EPA’s proposed groundwater monitoring requirements for new landfills are adequate to protect the combined system if that monitoring system is properly designed to consider both units. In addition, the location restrictions in the p roposed CCR Rule for new landfills or surface impoundments should not apply to overfills. An overfill is essentially a vertical expansion of an existing disposal unit and, as such, should be treated as an existing unit rather than as new unit. EPA Response : O verfills need to comply with both the requirements applicable to the closure of surface impoundments or landfills, and with all of the technical requirements applicable to new landfills. Thus, overfills cannot be constructed unless the underlying fou ndation

— i.e., the existing CCR surface impoundment has first been dewatered, capped, and completely closed. And because overfills are considered to be “new CCR landfills,” the design and construction of such units must comply with all the technical requi rements applicable to new units, including foundation settlement, overall and side slope stability, side slope and subgrade reinforcement, and leachate collection and groundwater monitoring system requirements, which will all need to be evaluated independe nt of the underlying CCR disposal unit to ensure that the overfill design is environmentally protective. This evaluation must also be certified by a qualified professional engineer.The Agency is not prohibiting the construct ion of new CCR landfills over C CR surface impoundment s . However, EPA is aware of the dangers posed by wet CCR in underlying units that have not been dewatered or capped. The Agency agrees that c losing first the underlying impoundment in accordance with the closure criteria before cons tructing the overfill would be protective of human health and the environment. EPA also believes that by requiring closure of the underlying surface impoundment prior to construction of a n overfill, these criteria will help prevent additional impoundment failures.22

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0103

- 12 Organization: PPL Services Corporation Commenter Type: Electric Utility Company
Comment 23 : Many of the potential risks associated with overfills have already been addressed by the operations of the original unit, and EPA should view the development and construction of these overfill units through its regulatory scheme for existing units rather than the provisions for new units. Therefore, EPA should not impose location restrictions on overfills f or new CCR landfills (i.e., wetlands, fault areas and seismic impact zones) in addition to the restrictions that would apply to existing landfills (i.e., floodplains and unstable areas). Because these units are expansions of existing units rather than the development of new units, EPA should only be considering whether to apply the location restrictions for existing units to overfills (i.e., floodplains and unstable areas). EPA Response: O verfills will need to comply with both the requirements applicable to the closure of existing CCR surface impoundments or landfills, and with all of the technical requirements applicable to new CCR landfills. Because overfills are considered to be “new CCR landfills,” the design and construction of such units must comply wi th all the technical criteria of the rule applicable to new units, including the technical requirements that address foundation settlement, overall and side slope stability, side slope and subgrade reinforcement, and leachate collection and groundwater mon itoring system requirements, which will all need to be evaluated independent of the underlying CCR disposal unit to ensure that the overfill design is environmentally protective. This evaluation must also be certified by a qualified professional engineer. The commenter is further referred to the preamble discussion on location criteria found in Unit VI of the proposed rule.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0153

- 6 Organization: CME Engineering LP Commenter Type: Electric Utility Company
Comment 24 : Location restrictions are subject to site specific and geographic conditions that vary significantly. If there is an existing CCR disposal unit that is permitted by local and state regulatory agencies and that is performing as designed and in accordance wi th environmental standards, then vertical expansion over the existing CCR facility should not be prohibited or excessively limited by federal regulation. In addition, the regulations should encourage the practice of overfills. The construction of an overfi ll keeps the CCR footprint within the limits, or in close proximity to, an existing area disposal area. Accordingly, this practice helps to reduce the need for generating stations to utilize other Greenfield sites for CCR disposal

. EPA Response: In this ru le EPA is establishing minimum national criteria that apply to facilities that manage CCRs. Under the present regulatory structure, federal requirements apply directly to facilities, and operate independent of state involvement. As a practical matter, this means that facilities must comply with both state and federal requirements. EPA distinguishes generally between an overfill and a vertical expansion. An overfill is a new CCR landfill built on top of a closed CCR surface impoundment. Whereas a vertical expansion, is the added disposal capacity of a unit by achieved by increasing the height of the surrounding embankment or slope. O verfills will need to comply with both the requirements applicable to the closure of surface23

impoundments or landfills, and with all of the technical requirements applicable to new landfills. Because overfills are considered to be “new CCR landfills,” the y must comply with all the technic al requirements of the rule, including the technical requirements that address foundation settlement, overall and side slope stability, side slope and subgrade reinforcement, and leachate collection and groundwater monitoring system requirements, which wil l all need to be evaluated independent of the underlying CCR disposal unit to ensure that the overfill design is environmentally protective



### IV. Liner and L eachate C ollection R equirements

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0057

- 9 Organization: Southern Company Commenter Type: Electric Utility Company
Comment 25 : The Agency acknowledges that technical issues unique to “overfills” may warrant modifications to the technical standards. A specific example presented by EPA in the NODA notes the liner requireme nts for the new landfill in relation to the capping requirements of closed units. There will likely be situations where new units are constructed on surface impoundments that may currently be active and have not yet undergone the closure process. A require ment to construct a cap on the surface impoundment prior to the construction of a more rigorous liner and leachate collection system would be more than redundant and unnecessary. It is our opinion that a composite liner with a leachate collection system wo uld provide protection of human health and the environment that is consistent with or more protective than a cover system on a closed unit for those areas of the existing unit covered by the expansion. However, it would also be appropriate for EPA to allow these expanded units to be constructed without any additional lining requirements if it can be demonstrated that the existing unit can already meet applicable permeability requirements and/or the facility is in compliance with applicable groundwater stand ards. EPA Response : A new CCR landfill may not be constructed over a partially closed existing CCR surface impoundment. An existing CCR surface impoundment must completely close before construction of a new CCR landfill can begin. New CCR landfills are s ubject to all the applicable technical criteria in the rule.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0060

- 14 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Trade Association
Comment 26 : EPA Should Not Require Overfills to Duplicate Any Already Effective Groundwater Quality Monitoring or Design Standard

. EPA Response : The design and construction of groundwater monitoring systems in these situations may be technically challenging, however, the technical criteria established by this rule already allow for the construction of a multi

- unit system. The Agency has concluded that the24

technical standards for CCR landfills are sufficiently flexible that no modifications are necessary to accommodate ove rfills.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0064

- 5 Organization: Florida Electric Power Coordinating Group Inc. (FCG) Commenter Type: Trade Association
Comment 27 : In Florida, overfills are known as vertical expansions. In recent years, FCG members have obtained state approvals for the vertical expansion of their CCR landfills. These expansions range from 6 to 100 acres in size. It is important that FCG members can continue to construct vertical expansions of their CCR landfills, particularly at site s where there have been no significant adverse impacts to human health and the environment. Florida has vast experience permitting CCR landfills and surface impoundments and there have been no reported off

- site impacts to drinking water resources in Florid a associated with the operation of these facilities. It is important that states like Florida are able to continue to apply this experience, maintain the regulatory flexibility to address site

- specific concerns and continue to implement a successful regula tory program

. EPA Response : See previous response to this comment.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0059

- 6 Organization: Commonwealth of Kentucky Commenter Type: State Government
Comment 28 : The proposed closure criteria require a soil layer with a maximum permeability of 1 X 10

- 5 cm./sec in the cap. The proposed landfill liner requires a soil layer with a maximum permeability of 1 X 10

- 7 cm./sec. and a geosynthetic liner. Requiring the redundant closure cap with the higher permeability soil (i.e., f aster water flow) adds nothing to the liner barrier minimizing such flow. It would be better to specify minimum compactions requirements for support, such as 90% standard proctor, such as exist in Kentucky’s solid waste regulations at 401 KAR 48:080, Secti on 3(3)(c). Please refer to http://www.lrc.ky.gov/kar/401/048/080.htm EPA Response: The presumption is this that the cap will add additional strength to the composite liner system of the new CCR lan dfill.

Comment Number: EPA

- HQ

- RCRA

- 2012

— 0028

- 0059

- 9 Organization: Commonwealth of Kentucky Commenter Type: State Government
Comment 29: The Commonwealth opines that one composite liner system would be sufficient for a landfill overfill on a surface impoundment, although each design should be done by a registered professional engineer on a site

- specific basis. The Commonwealth has no curren t knowledge of an existing surface impoundment with a liner and leachate collection system in Kentucky. Having a leachate collection system in a pond, on top of the liner according to the prevalent design for landfills, would drain the impoundment. If the drain is underneath the liner25

in the pond, it is a leak detection system or underdrain. The Commonwealth believes that such an arrangement would defeat the purpose of intimate contact between the soils and geosynthetic.
EPA Response: The commenter is referred to the design criteria for CC R surface impoundments found in Unit VI of the preamble. New CCR surface impoundment are required to have a composite liner with no leachate collection system. New CC R landfills are required to have a composite liner system and a leachate collection system above the composite liner. Therefore, a new CCR landfill built on top of a closed CCR surface impoundment would be required to have a composite liner and leachate collection system.

Comment Number: EPA

- HQ

- RCRA

- 201 2

- 0028

- 0064

- 6 Organization: Florida Electric Power Coordinating Group Inc. (FCG) Commenter Type: Trade Association
Comment 30 : The FCG does not support federal liner mandates or liner system requirements. However, to the extent that such requirements are imposed in the context of CCR landfills or overfills/vertical expansions, EPA should not ignore the viable alternative liner systems that are currently used by various states. Alternative liner systems are important precisely because they meet, and can exc eed, EPA standards in protecting human health and the environment. Furthermore, they take into consideration variations in regional geology. Systems such as Florida’s double liner system offer not only a significant probability of no leakage, but also an

e arly alert in the unlikely event leakage does occur. These alternative liner systems have been approved by EPA as an acceptable alternative to the composite liner for municipal solid waste landfills, which are more likely to pose a greater threat to human health and the environment than CCR landfills. Therefore, there is no rational basis for not allowing their use in CCR landfills and overfills/vertical expansions

. EPA Response : The commenter is referred to U nit VI of the preamble for a discussion of the t echnical requirements for liners

. Comment 31 : Flexibility should be added into the rule that allows for site specific conditions to be considered and matched with the appropriate combination of structural elements that arc protective of human health and the environment. We recommend that the Agency include such flexibility into the technical requirements for overfills to avoid a “one size fits all” technical standard that may not be appropriate for all situations

. EPA Response : The commenter is referred to Unit VI of the preamble for a discussion of the technical requirements of the rule. this unit of the preamble also addresses the Agency’s rationale for the regulation of overfills given the subtitle D regulatory approach that the Agency is promulgatin g the disposal of CCR in landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0080

- 7 Organization: Dominion Resources Services, Inc. Commenter Type: Electric Utility Company26

Comment 32 : The use of groundwater modeling techniques to establish water quantity and quality should be conducted to access the necessity of a of a liner system

. EPA Response : The commenter is referred to Unit VI of the preamble for a discussion of the groundwater and corrective action requirements of the rule.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0073

- 12 Organization: Tennessee Valley Authority (TVA) Commenter Type: Electric Utility Company
Comment 33 : EPA should not require an overfill to have its own independent leachate collection and leak detection system if the underlying impoundment already meets these requirements. There is no reason to require duplicate leachate collection and leak detection systems that would not provide any add itional environmental benefit but add significant costs

. EPA Response : The Agency disagrees, the Agency consider the two units separate and as such must address the technical requirements for both units. The commenter is referred to the discussion of the t echnical requirements of the rule found in Unit VI of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0086

- 8 Organization: Dynegy Inc. (Dynegy) Commenter Type: Electric Utility Company
Comment 34 : EPA should not treat overfills as New Units, particularly at ash pond disposal sites that are already characterized as existing units under programs implementing EPA’s Part 257 Guidelines. EPA has previously and appropriately recognized that certain massive natural clay formations are acceptable and, at least in terms of obtaining a groundwater monitoring variance, preferable alternatives to composite liners. EPA should continue to recognize the appropriateness of such alternative liners and not require liners beneath overfills, if the underlying ash pond is lined. Leachate collection systems can be integrated into the design of certain overfills without requiring new liners as described above. The final rule for CCR overfills should provide for necessary flexibility provided the design

. EPA Response : A unit constructed over a closed existing CCR unit is considered an overfill. EPA requires these units to comply with all the technical criteria of new units. New units are required to be lined with either a composite liner system or an alternative comp osite liner systems as defined in the rule. The commenter is referred to the preamble discussion in Unit VI and the accompanying regulatory text for additional information on these requirements.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0089

- 1 Organization: DTE Energy Company Commenter Type: Electric Utility Company
Comment 35 : The Agency asks a series of questions concerning possible duplication between the groundwater monitoring requirements of the original units and overfills. Duke Energy bel ieves that if the underlying unit meets or exceeds any of the standards in the new proposed rule (such27

as liners and groundwater monitoring) the overfill should not be subjected to those standards if the underlying unit can demonstrate compliance with the standard with the overfill in operation.
EPA Response : No, an existing CCR surface impoundment must be closed before a new CC R landfill is constructed. The new CCR landfill must comply with all the technical requirements of the rule.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0095

- 12 Organization: Duke Energy Commenter Type: Electric Utility Company
Comment 35 : EPA asks whether it should allow an overfill unit to be exempted from liner standards if the underlying unit was so equipped with an equivalent Subtitle D liner. Duke Energy maintains that the overfill units should not be required to duplicate any ground water protection standards if the underlying unit meets or exceeds those standards. EPA should also allow for the use of alternative liner design s that demonstrate and provide the same level of ground water protection as the composite liner with leachate collection in the Subtitle D option in the proposed rule

. EPA Response: The commenter is referred to to Unit VI in the preamble for a complete discussion of the technical requirements of this rule. In particular the commenter should look at the discussion on overfills.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0095

- 13 Organization: Duke Energy Commenter Type: Electric Utility
Comment 36 : As previously noted, each pond is unique and requires site

- specific geotechnical and hydrogeologic investigations prior to design and construction, whether for standard closure or for the vertical expansion as a landfill. Cons truction of an overfill over a closed or closing pond adds an additional set of complexities related to an integrated liner/cap design, partial overfills, and integrated groundwater monitoring. Again, flexibility is necessary to enable careful evaluation a nd appropriate design by experienced professional engineers and geologists

. Response: The Agency acknowledges and appreciates this comment. The Agency consider the underlying CC R management unit and the unit covering this unit to be two separate units subj ect to the applicable technical standards for each unit. The commenter is also referred to the discussion in Unit V of the preamble regarding the certification of demonstrations by a qualified professional engineer.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0102

- 2 Organization: Electric Power Research Institute (EPRI) Commenter Type: Trade Association28

Comment 37 : In the section of the NODA on overfills, the Agency asks a series of questions concerning possible duplication between the d esign (e.g., liners and leachate collection) and groundwater quality monitoring requirements of the original units and overfills. As a general rule, PPL believes that these requirements can be met for either the original unit or the overfill, but the overf

ill should not be required to meet these standards if the original unit already has been constructed or is operated in accordance with these requirements. EPA Response : The Agency disagrees and refers the commenter to preceding responses on this specific issue.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0103

- 13 Organization: PPL Services Corporation Commenter Type: Electric Utility Company
Comment 38 : EPA asks whether it should allow an overfill unit to not meet liner standards if the underlying unit was so equipped and whether an overfill should not be required to monitor if it had a double liner leak detection system. Again, PPL maintains that the ove rfill should not be required to duplicate any standards already in place at the original unit

. EPA Response : The Agency disagrees and refers the commenter to preceeding responses on this specific issue.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0103

- 15 Organ ization: PPL Services Corporation Commenter Type: Electric Utility Company
Comment 39 : If the proposed overfill is on a facility that has a functioning composite liner/leachate collection system and associated groundwater monitoring, there should be no need to install another liner system. In the event that a closed CCR facility does not in clude a liner and leachate collection system, a composite liner should be installed for the overfill. Likewise, a groundwater monitoring system , if not already present, should be installed

. EPA Response : If a facility is operating a surface impoundment on the effective date of the rule, it is considered and existing CCR surface impoundment. That unit must close in accordance with the closure requirements of this rule. After closure the construction of a CCR landfill can be accomplished if the new CC R land fills meets all the technical requirements for a new unit as required by the rule. As for groundwater monitoring there is a specific provision in the rule that allow for multi

- unit groundwater monitoring systems.29

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0105

- 9 Organization: CME Engineering LP Commenter Type: Electric Utility Company
Comment 40: Provided that applicable environmental and structural controls are in place and verified by local and state regulatory agencies, construction of a CCR overfill unit should be federally permissible. Composite liners are a positive aspect of modern landfill construction and should be utilized to provide adequate protection against groundwater contamination EPA Response: This final rul e does not prohibit the construction of overfill . The Agency has determined that the technical provision being promulgated in this rule are equally applicable to overfills as to new CCR landfills. With regard to the subtitle D approach the Agency is fina lizing, the commenter is referred to the detailed discussion in Unit V of the preamble for the authorities under which this rule is being developed.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0105

- 7 Organization: CME Engineering LP Commenter Type: Electric Utility Company
Comment 41 : In some situations, implementation of the proposed groundwater monitoring systems could potentially damage the integrity of an existing liner system in the event that liner system must be penetrated to install wells. A detailed study should be conducted by professional engineers and hydrogeologists to first determine if placement of groundwater monitoring wells at the edge of the facility is, in fact, the best location, and, if so, that damage does not occur to the existing liner system. This process should be overseen and subsequently permitted by local and state regulatory agencies. In situations where the overfill boundaries do not exceed those of the existing CCR disposal site , there should be no need to install additional mo nitoring points provided that an adequate liner system is installed and tested in accordance with current geoenvironmental standards. Duration of groundwater monitoring should take place for a period of time designated by local and state regulatory agencie s and in accordance to the permitted closure plan

. EPA Response : The commenter is referred to the preamble discussion on overfills that can be found in Unit VI of the preamble. Furthermore, the commenter is also referred to the discussion in Unit V and Unit IX regarding how states can implement and enforce this rule.



### Part V : Groundwater Monitoring

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0053

- 3 Organization: Seminole Electric Cooperative, Inc. (SECI) Commenter Type: Electric Utility Company
Comment 42 : SECI supports EPA’s consideration of “overfill” landfills, or “vertical expansions” as they are known in Florida. SECI recently permitted a vertical expansion which will rest against the existing landfill. While SECI will install a liner between the existi ng landfill and the30

vertical expansion, we believe the proposed groundwater requirements will cause damage to existing structures. Requiring groundwater monitoring at the waste boundary would necessitate SECI to place wells within existing structures causi ng holes to be created in liner systems. It is SECI’s belief that existing groundwater monitoring, if it covers the same basin area, is adequate to provide the necessary information to prevent contamination

. EPA Response: The commenter is referred to the preamble discussion on groundwater monitoring and corrective action that can be found in Unit VI in the preamble. The commenter is also referred to the “unified guidance” on groundwater monitoring as well as the provision in the rule for multi

- unit groun dwater monitoring systems to address this situation.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0058

- 9 Organization: Commonwealth of Kentucky Commenter Type: State Government
Comment 43 : The Commonwealth opines that the groundwater monitoring system should be installed outside the waste boundary of the combined footprints. If the existing surface impoundment has a larger area and the smaller overfill is within the footprint, then the wells should be installed outside the former surface impoundment waste boun dary. Drilling wells in the middle of a CCR surface impoundment could lead to an immediate “hit” since there is not any of the normal buffering from soil surrounding the waste unit. Ringing the circumference of the larger unit could also comply with the pr oposed 40 CFR 257.92(c). EPA Response : The Agency agrees that making holes in the liner system for a groundwater monitoring system could compromise the integrity of the liner system and recommends that any new groundwater monitoring units be placed outside the waste unit boundary. The rule allo ws for the establishment of multi

- unit groundwater monitoring systems. The commeter is referred to the groundwater monitoring section of the preamble found in Unit VI. This section references the “Unified Guidance” as an source of information for complyi ng with the groundwater monitoring requirements of the rule.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0057

- 9 Organization: Southern Company Commenter Type: Electric Utility Company
Comment 43 : The Agency acknowledges that technical issues unique to “overfills” may warrant modifications to the technical standards. A specific example presented by EPA in the NODA notes the liner requirements for the new landfill in relation to the capping requirements of closed units. There will likely be situations whe re new units are constructed on surface impoundments that may currently be active and have not yet undergone the closure process. A requirement to construct a cap on the surface impoundment prior to the construction of a more rigorous liner and leachate co llection system would be more than redundant and unnecessary. It is our opinion that a composite liner with a leachate collection system would provide protection of human health and the environment that is consistent with or more protective than a cover sy stem on a closed unit for those areas of the existing unit covered by the expansion. However, it would also be appropriate for EPA to allow these expanded units to be constructed without any additional31

lining requirements if it can be demonstrated that the existing unit can already meet applicable permeability requirements and/or the facility is in compliance with applicable groundwater standards. EPA Response : The commenter is referred to the Agency’s response to a previous comment addressing this issue.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0059

- 9 Organization: Commonwealth of Kentucky Commenter Type: State Government
Comment 44 : The Commonwealth opines that one composite liner system would be sufficient for a landfill overfill on a surface impoundment, although each design should be done by a registered professional engineer on a site

- specific basis. The Commonwealth has no curren t knowledge of an existing surface impoundment with a liner and leachate collection system in Kentucky. Having a leachate collection system in a pond, on top of the liner according to the prevalent design for landfills, would drain the impoundment. If the drain is underneath the liner in the pond, it is a leak detection system or underdrain. The Commonwealth believes that such an arrangement would defeat the purpose of intimate contact between the soils and geosynthetic. EPA Response: The commenter is refer red to Unit VI of the preamble for a discussion of the technical requirements of the rule.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0060

- 14 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Trade Association
Comment 45 : In the section of the NODA on overfills, the Agency asks a series of questions concerning possible duplication between the design (e.g., liners and leachate collection) and groundwater quality monitoring requirements of the original units and overfills. A s a general rule, USWAG believes that these requirements can be met for either the original unit or the overfill, but the overfill should not be required to meet these standards if the original unit already has been constructed or is operated in accordance with these requirements. It is important for USWAG to reiterate the point from our 2010 comments on the CCR proposal that it is absolutely essential that a final Subtitle D rule allow for the use of alternative liner systems in CCR disposal units. EPA also specifically asks whether overfills should be allowed to be constructed over partially closed units and whether the technical requirements for new units and the proposed groundwater quality monitoring requirements would be adequate for the overfil l. USWAG believes that the construction of overfills on partially closed (e.g., uncapped management unit) should be a permissible activity because there is no technical bar to the development of such units and that design standards and groundwater quality monitoring would be adequately protective but, again, only if the original unit did not already have such systems in place. Otherwise, these would be duplicative requirements that would not provide any additional environmental benefit. In fact, liners for overfill units can often serve as effective caps for underlying disposal units.32

EPA Response : The commenter is referred to a previous response that address the Agency’s decision not to allow the construction of a new CCR landfill over a partially closed e xisting CCR surface impoundment

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0064

- 7 Organization: Florida Electric Power Coordinating Group Inc. (FCG) Commenter Type: Trade Association
Comment 46 : In the context of overfills/vertical expansions, and CCR landfills in general, groundwater monitoring at the waste boundary should not be required. Several FCG member facilities operate with FDEP

- approved zones of discharge (“ZOD”). A ZOD is defined as a

“ volume underlying or surrounding the site and extending to the base of a designated aquifer or aquifers, within which an opportunity of the treatment, mixture or dispersion of wastes into receiving groundwater is afforded.” Rule 62

- 520.200(27), F.A.C. The default dimensions of a ZOD for a facility discharging to Class G

- II groundwater are set forth in Rule 62

- 520.465, F.A.C. Typically, an applicant seeking a ZOD in G

- II groundwater is provided a ZOD that extends laterally 100 feet from the disposal site bou ndary or to the facility’s property boundary, whichever is less. Numerical primary and secondary drinking water standards do not apply within an authorized ZOD. Rule 62

- 520.420(4), F.A.C. EPA Response : Redefining ZOD is outside the scope of this rulemaking. However the comenter is referred to the groundwater discussion in Unit VI of the preamble as well as the “Unified Guidance” referenced in that section.

Comment Number: EPA

- HQ

- RCRA

- 20q2

- 0028

- 0076

- 6 Organization: Nebraska Public Power District (NPPD) Commenter Type: Electric Utility Company
Comment 47 : The location of any groundwater monitoring wells should be selected based on the site hydrogeology and the presence (or lack of presence) of local receptors. New groundwater monitoring wells should not be installed through the liner of an existing or new facility. Existing groundwater monitoring wells located adjacent to proposed new CCR overfills should be considered for inclusion in the overall gro undwater monitoring program. Existing wells will presumably have a considerable amount of available historic chemistry data, which may be useful in identifying changes resulting from the new facility. If existing wells are used, the monitoring period shoul d be increased to include the lifespan and post

- closure period of the overfill facility

. EPA Response: The Agency acknowledges and appreciates this comment. The commenter is refer red to the groundwater monitoring section of the preamble which can be found in Unit VI as well as the “Unified Guidance” reference therein.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0080

- 8 Organization: Dominion Resources Services, Inc. Commenter Type: Electric Utility Company33

Comment 48 : The Agency requests comment on groundwater monitoring requirements, including whether the requirements within the CCR proposed rule would be adequate for overfills, how groundwater monitoring should be conducted, and for what timeframe. In general, we believe that the groundwater monitoring require ments in the proposed rule are adequate for overfills.
EPA Response: The Agency acknowledges and appreciates this comment. The commenter is refer red to the groundwater monitoring section of the preamble which can be found in Unit VI as well as the “Unified Guidance” reference therein.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0083

- 3 Organization: Iowa Department of Natural Resources (DNR) Commenter Type : State Government
Comment 49 : One issue to consider for overfill landfill units is in determining whether the source of any contamination detected by the groundwater monitoring program is from preexisting CCR disposal or the result of a liner system failu re of an overfill unit. This would be difficult to differentiate between when the groundwater monitoring network for the preexisting CCR disposal and the overfill unit are one in the same. However, the DNR recommends that routine leachate quality monitorin g of both disposal units be performed to help characterize the source of any release identified through groundwater monitoring. In addition, monitoring of the groundwater prior construction of an overfill is also recommended to identify any preexisting

con tamination

. EPA Response: The Agency acknowledges and appreciates this comment. However, it is incumbent on the owner or operator to accurately characterize releases from the site. The commenter is refer red to the groundwater monitoring section of the preamble which can be found in Unit VI as well as the “Unified Guidance” reference d therein

.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0209

- 0027

- 2 Organization: Kentucky Department for Environmental Protection Commenter Type: State Government
Comment 50 : While site

- specific situations may exist where groundwater monitoring requirements associated with an overfill potentially could damage the integrity of a closed surface impoundment, Dynegy does not believe that possibility should preclude all overfills. In almost any case, the groundwater monitoring network could be designed and constructed so as to avoid damaging the integrity of the underlying surface impoundment

. EPA Response: the Agency is not prohibiting th e construction of overfills, and we agree that a groundwater monitoring system can be designed and construction to avoid damaging the integrity of the underlying liner system.34

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0086

- 7 Organization: Dynegy Inc. (Dynegy ) Commenter Type: State Government
Comment 51 : Dynegy does not believe that EPA should require all overfills to perform groundwater monitoring for a longer period. Such a blanket approach would be arbitrary. Rather, the period of groundwater monitoring sho uld be based upon the site

- specific hydrogeologic studies and modeling done for the combined units

. EPA Response : The commenter is referred to the groundwater monitoring discussion found in Unit VI of the preamble. Overfills constructed over closed CCr surface imoundments are considered new CCr landfills subject to all the technical requirements for these units.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0091

- 5 Organization: Texas Coal Combustion Products Coalition (TCCPC) Commenter Type: Trade Association
Comment 52 : Existing effective and appropriate groundwater monitoring systems and design standards should not require automatic duplication for overfills. An effective protective design should take into account the overall design of both units as they will exist in the environment together

. EPA Response : We agree and the rule allows for multi

- unit groundwater monitoring.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0095

- 12 Organization: Duke Energy Commenter Type: Electric Utility Company
C omment 53 : The Agency asks a series of questions concerning possible duplication between the groundwater monitoring requirements of the original units and overfills. Duke Energy believes that if the underlying unit meets or exceeds any of the standards in the new pro posed rule (such as liners and groundwater monitoring) the overfill should not be subjected to those standards if the underlying unit can demonstrate compliance with the standard with the overfill in operation. EPA Response : The Agency considers overfills to be new units subject to all the new unit provision s of the rule. Moreover, the underlying unit if it is an existing CC R surface impoundment must be closed in accordance with the closure requirements of the rule before a overfill can be designed and co nstructed. And because overfills are considered to be “new CCR landfills,” the design and construction of such units must comply with the technical requirements that address foundation settlement, overall and side slope stability, side slope and subgrad e reinforcement, and leachate collection and groundwater monitoring system requirements, which will all need to be evaluated independent of the underlying CCR disposal unit to ensure that the overfill design is environmentally protective. This evaluation must also be certified by a qualified professional engineer.35

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0102

- 2 Organization: Electric Power Research Institute (EPRI) Commenter Type: Trade Association
Comment 54 : As previously noted, each pond is unique and requires site

- specific geotechnical and hydrogeologic investigations prior to design and construction, whether for standard closure or for the vertical expansion as a landfill. Construction of an overfill over a closed or closing pond adds an additional se t of complexities related to an integrated liner/cap design, partial overfills, and integrated groundwater monitoring. Again, flexibility is necessary to enable careful evaluation and appropriate design by experienced professional engineers and geologists. EPA Response : The Agency agrees and believes that adequate flexibilities have been incorporated into the provisions of this rule.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0103

- 13 Organization: PPL Services Corporation Commenter Type: Electric Utility company Comment 55 : In the section of the NODA on overfills, the Agency asks a series of questions concerning possible duplication between the design (e.g., liners and leachate collection) and groundwater quality monitoring requirements of the original uni ts and overfills. As a general rule, PPL believes that these requirements can be met for either the original unit or the overfill, but the overfill should not be required to meet these standards if the original unit already has been constructed or is opera ted in accordance with these requirements. EPA Response : The Agency disagrees and the commenter is referred to previous responses contained in this document addressing this specific point.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0103

- 14 Organization: PPL Services Corporation Commenter Type: Electric Utility Company
Comment 56 : The Agency also asks whether implementing groundwater quality monitoring could damage the integrity of the underlying unit where the overfill did not occupy the entire footprint of the underlying unit (e.g., where wells would need to be placed at the overfill unit boundary), requiring the wells to be placed within the parameters of the underlying unit. PPL agrees with EPA’s concern that if the unit boundary for the vertical expansion overfill is not configured to be similar of that to the original landfill boundary, the placement of the wells within the footprint of the underlying unit clearly could compromise the integrity of the underlying uni t and cause the potential for contaminant migration. PPL agrees, as explained above, that this problem can be avoided by allowing the existing groundwater quality monitoring system in place for the underlying unit to also serve as the groundwater quality m onitoring system for the vertical expansion. PPL also agrees that consideration of extending groundwater quality monitoring time periods is prudent to take account for the active life of the overfill unit

. EPA Response : The Agency agrees with the commenter that if the unit boundary for the vertical expansion overfill is not configured to be similar of that to the original landfill boundary, the36

placement of the wells within the footprint of the underlying unit clearly could compromise the integrity of the u nderlying unit and cause the potential for contaminant migration. In this final rule EPA has chosen to characterize an overfill as a ne w CCR disposal unit that is subject to all of the requirements of new landfills. D esign considera tions for an overfill, include foundation settlement, overall and side slope stability, side slope and subgrade reinforcement, and leachate collection and groundwater monitoring system requirements, which all need to be evaluated independent of the underlying CCR disposal unit t o ensure that th e overfill design is environmentally protective

. Any underlying groundwater monitoring systems that meet the current requirements can be used as a single unit or a multiunit system.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0109

- 5 Organizat ion: Hoosier Energy Rural Electric Cooperative, Inc. (Hoosier) Commenter Type: Electric Utility Company
Comment 57

: First Hoosier would comment that you would never want to place groundwater monitoring wells through an existing facility if the overfill is smaller than the footprint of the original footprint. That would entail breaching any liner that was in place making a direct conduit to the groundwater table. In fact, wells at the boundary area should prevent that issue, as well as capture the full effe ct of the entire facility EPA Response : The Agency agrees with the commenter that you would never want to place groundwater monitoring wells through an existing facility if the overfill is smaller than the footprint of the original footprint. P lacement of the wells within the footprint of the underlying unit clearly could compromise the integrity of the underlying unit and cause the potential for contaminant migration. In this final rule EPA has chosen to characterize an overfill as a ne w CCR disposal unit that is subject to all of the requirements for new landfills. D esign considera tions for an overfill, include foundation settlement, overall and side slope stability, side slope and subgrade reinforcement, and leachate collection and gr oundwater monitoring system requirements, which all need to be evaluated independent of the underlying CCR disposal unit to ensure that th e overfill design is environmentally protective

.



### Part VI. Inspection Requirements

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0057

- 11 Organization: Southern Company Commenter Type: Electric Utility Company
Comment 67 : The inspection requirements outlined in section 257.83 in the proposed rule are not appropriate for “overfills.” The proposed rule states th at section 257.83 applies to inspections of surface impoundments, and are further intended to assess the structural integrity of a surface impoundment and any potential future failure. Since the likely case for new expanded units on top of existing units w ill consist of placement of “dry” ash with only enough moisture added to condition the ash sufficient to achieve the needed compaction, the proposed language for inspecting these expansions according to the requirements for structural integrity of surface impoundments would be inappropriate. Even if the expansion is constructed over a closed37

surface impoundment, the surface impoundment would have been adequately dewatered prior to its construction. It is the presence of the water within the surface impoundm ent that creates the loading conditions that may justify frequent inspections. The sluice water previously associated with a surface impoundment used for CCR storage or disposal no longer exists. EPA must understand this important concept and not exert err oneous inspection requirements on those facilities that the proposed rule was not originally intended to cover. EPA Response : The Agency is establishing inspection requirements for all CCR landfills which would include a new CCR landfill constructed over a closed CCR surface impoundment. These inspections consist of both weekly inspected conducted by a qualified persons an d annual inspection s conducted by a qualified professional engineer. These inspection must identify and address among other things, any appearances of an actual o r potential structural weakness of the CC R unit in addition to any existing conditions that are disrupting or have the potential to di s rupt the operation and safety of the CC R unit. These inspections have been developed to address not only concerns with the presence of any water but for any type of condition that may affect the integrity of the unit.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0059

- 10 Organization: Commonwealth of K entucky Commenter Type: State Government
Comment 59 : The Commonwealth believes, from years of solid waste permitting experience, that a site designed by a professional engineer includes unit dewatering and sufficient stability making weekly unnecessary. The Commonwealth believes that annual inspections should be sufficient

. EPA Response : The Agency disagrees and refers the commenter to the discussion in Unit VI of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0060

- 15 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Trade Association
Comment 6 0 : The Agency also poses several questions about structural integrity inspections and possibilities of pairing these inspections with location restrictions. USWAG supports the imposition of annual inspections of structural integrity o n overfill units. While structural stability is the primary design consideration for the construction of these units, an annual structural stability inspection is a reasonable approach to regulating these units. We support the application of these requirem ents throughout the post closure life of these units EPA Response: The Agency acknowledges and appreciates this comment. In this rule the Agency is promulgating inspections requirements for CCR landfills that consist of both weekly inspections conducted by a qualified person and annual inspection conducted by a qualified professional engineer. The commenter is refereed to Unit VI of the preamble for additional discussion of this requirement. ,38

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0076

- 8 Organization: Nebraska Public Power District (NPPD) Commenter Type: Electric Utili ty Company
Comment 61 : The frequency of inspections should be selected based on the design of the facility. Overfill facilities constructed over surface impoundments may require more frequent inspections compared with those constructed over dry landfills. Inspections by qualified personnel one time per month and after significant precipitation events, along with annual (or bi

annual) inspections by a professional engineer should be sufficient for most situations. During the post

- closure period, the interval of inspections may also decrease based on the performance of the underlying facility and the overfill facility

. EPA Response: The Agency acknowledges and appreciates this comment. In this rule the Agency is promulgating inspections requirements for CCR landfills that consist of both weekly inspections conducted by a qualified person and annual inspection conducted by a qualified professional engineer. The commenter is refereed to Unit VI of the preamble for additional discussion of this requirement.

C omment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0080

- 9 Organization: Dominion Resources Services, Inc. Commenter Type: Electric Utility Company
Comment 62 : The Agency solicits comments on whether overfills should be subject to the same inspection requirements as surface impoundments in the proposed rule. In the proposed rule, inspections are required on a weekly basis by qualified personnel and annually by an independent professional engineer. We support these two elements of a comprehensive inspection program as good risk management and early detection of issues of potential structural instability or, of lesser urgency, the need for basic maintenance. This in spection regime should take place throughout the active life of the overfill as this timeframe is of greatest concern for issues to occur due to the routine placement, shaping, sloping, and compacting of CCRs. Once the unit goes into closure and subsequent ly into post

- closure care, the risk of issues of concern are drastically reduced due to the suspension of loading and operation on the overfill as well as the closure process ending in proper slope stability, compaction, and cover. Once in post

- closure

car e, the only inspection obligations remaining are those that provide for maintenance of the closure systems including the cover, leachate collection system, and groundwater monitoring system. Therefore, we recommend that overfill inspection requirements inc lude weekly inspectors by qualified personnel and annual inspections by an independent professional engineer throughout the active life of the unit

. EPA Response: The Agency acknowledges and appreciates.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0086

- 9 Organization: Dynegy Inc. (Dynegy) Commenter Type: Electric Utility Company39

Comment 63 : The p roposed CCR Rule would require weekly inspections by qualified personnel, in addition to annual inspections by an independent registered professional engineer. D ynegy believes less frequent inspections are justifiable. In general, CCR landfills are less likely to fail because internal hydrostatic pressures on perimeter embankments are much lower. Thus, weekly inspections are not warranted to address long

- term stru ctural integrity and would impose unnecessary burdens. Annual inspections by an independent registered professional engineer would be sufficient

. EPA Response: The Agency acknowledges and appreciates this comment. In this rule the Agency is promulgating inspections requirements for CCR landfills that consist of both weekly inspections conducted by a qualified person and annual inspection conducted by a qualified professional engineer. The commenter is refereed to Unit VI of the preamble for additional discussion of this requirement.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0091

- 6 Organization: Texas Coal Combustion Products Coalition (TCCPC) Commenter Type: Trade Association
Comment 64 : Annual inspections of structural integrity should apply to overfills

. EPA Response: The Agency acknowledges and appreciates this comment. In this rule the Agency is promulgating inspections requirements for CCR landfills that consist of both weekly inspections conducted by a qualified person and annual inspection conducted by a qualified professional engineer. The commenter is refereed to Unit VI of the preamble for additional discussion of this requirement.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0103

- 16 Organization: PPL Services Corporation Commenter Type: Electric Utility company
Comment 65 : The Agency also poses several questions about structural integrity inspections and possibilities of pairing these inspections with location restrictions. PPL supports the imposition of annual inspections of structural integrity on overfill unit s. While structural stability is the primary design consideration for the construction of these units, an annual structural stability inspection is a reasonable approach to regulating these units. PPL also support the application of these requirements thro ughout the post closure life of these units

. EPA Response: The Agency acknowledges and appreciates this comment. In this rule the Agency is promulgating inspections requirements for CCR landfills that consist of both weekly inspections conducted by a qualified person and annual inspection conducted by a qualified professional engineer. The commenter is refereed to Unit VI of the preamble for additional discussion of this requirement.40

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0109

- 6 Organization: Hoosier Energy Rural Electric Cooperative, Inc. (Hoosier) Commenter Ty pe: Electric Utility Company
Comment 66 : On structural integrity, weekly inspections are more than should be required for any facility, although we agree that unusual weather or seismic conditions should trigger immediate inspections. Hoosier believes that inspection requirements are site specific and can be made part of any permit, with a minimum annual requirement. Periodic inspections of all CCR units are a necessary practice to ensure that the overall structural integrity of the CCR unit is maintained a nd that actual and potential s tructural weaknesses and other hazardous conditions are quickly identified and remediated throughout the active life of the unit. All CCR surface impoundments pose some risk of release

— whether from a catastrophic failure or fr om a more limited structural failure, such as occurred at Duke Energy’s Dan River plant. Periodic inspections are a generally accepted, prudent engineering practice that will significantly reduce the risks of such failures; during the Impoundment Assessme nt Program, EPA discovered that many facilities routinely conduct some sort of periodic inspection and monitoring, although the frequency varied widely between facilities. The final rule merely codifies this practice, by establishing a consistent minimum. EPA is therefore requiring that all CCR surface impoundments be inspected by a qualified person both weekly (for visual signs of a potentially adverse condition) and monthly (for instrumentation monitoring). Consistent with the proposed rule, EPA is also requiring annual inspections for all CCR surface impoundments that exceed the specified size threshold of: (1) a height of five feet and a storage capacity of 20 acre

- feet; or (2) a height of 20 feet, must also be inspected no less than annually by a quali fied professional engineer. These inspection requirements are generally being promulgated as proposed, with minor technical clarifications. EPA Response : As discussed in Unit IV of preamble, this rule does provide for permits, it is a self

- implementing rule. It does, however, as also discussed in Unit VI of the preamble allow for both weekly and annual inspection for certain CCR surface impoundments and al l CCR landfills. The commenter is referred to the discussion in the preamble for addition information on these requirements.



### Part VII

. Other Requirements for Overfills
Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0063

- 2 Organization: Geosynthetic Institute Commenter Type: Trade Association
Comment 67 : Again we bifurcate our comments into dry and wet disposal practices. Regarding dry disposal of CCR’s, there is a direct parallel to post

- closure beneficial uses of RCRA Subtitle D landfills. Regarding wet dispo sal of CCR’s, the situation is much more difficult. Only with

some type of ground modification technique can any loads be imposed. Thus, deep foundation systems such as; densification through accelerated consolidation, grouting, deep mixing techniques, str uctural support systems, etc., can an in

- situ conditions be upgraded to the point of some beneficial use. While time consuming and relatively expensive, however, such wet ash improvements are well within the state

- of

- the

- practice

.41

EPA Response : T he Agency acknowledges and appreciates this comment.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0063

- 2 Organization: Geosynthetic Institute Commenter Type: Trade Association
Comment 68 : The characteristics of the containment structure and the surroundings at CCR impoundment facilities offer unique challenges to both the closures of the impoundments and to development of overfills that are not necessarily a function of the size of the facility but a function of its geometry, e.g., up

- ground containment vs. cross

- va lley fill, upstream vs. downstream construction, and the geology and history of the setting. Seymour, et al. (2013) 6 discussed many of the constraints that can affect the closures and overfills at CCR impoundment facilities

. EPA Response : The Agency ackno wledges and appreciates this comment. The commenter is referred to the closure discussion found in Unit VI of the preamble supporting this rule.42 

# Volume 11 B : Harmonization with ELG Rule

Section 6 Risk assessment
Section 6.9 Risk assessment

- use of ELG facility specific ICR collected data
Section 6.9.1 Comments on the ELG data set
Section 6.9.2 I nterception analysis
Section 6.9.3 Exclusion of smaller impoundments
Section 6.9.4 Risk of fugitive dust at landfills
Section 6.9.5 Revised risk assessment supporting CCR disposal under RCRA Subtitle D
Section 9 Regulatory Impact Analysis and other rulemaking requirements
Section 9.3 R egulatory costs
Section 9.3.13 Cost benefit analysis in the ELG proposed rule related to CCR
Secti on 9.4 Environmental and economic benefits
Section 9.4.8 Environmental assessment
Section 10 Beneficial use including perceived stigma issue
Section 10.7 Impact of FLG proposed rule on beneficial use of CCR
Section 12 Out

- of

- scope comments
Section 12.7 Outside of scope of the ELG proposed rule

– ELG/CCR coordination issues
Section 12.7.1 Outside the scope of CCR issues raised in the ELG proposal
Section 12.7.2 Outside scope of the ELG proposed rule
Section 13 Overall coordination between the ELG and CCR rules
Section 13.1 Minimize overlap/avoid duplication/confusion
Section 13.2 Comingling of wastewaters/anti

- circumvention
Section 13.3 Alternative or suggested approaches to coordinating rules
Section 13.4 Subtitle D Prime option role in coo rdination
Section 14 Coordination of CCR substantive requirements with ELG requirements
Section 14.1 Modification of operations to comply with ELG
Section 14.1.1 Zero discharge for ash to eliminate need for surface impoundments43

Section 14.1.1.1 Feasibility of zero discharge, general
Section 14.1.1.2 Bottom ash

- specific issues
Section 14.1.1.3 Fly ash

- specific issues
Section 14.1.2 Voluntary incentive program for closing CCR impoundments/eliminating

all process wastewater
Section 14.1.2.1 Feasibil ity of a voluntary incentive program
Section 14.1.2.2 Specific requirements for the voluntary incentive program
Section 14.2 Best management practices for CCR surface impoundments
Section 14.2.1 BMP/structural integrity requirements
Section 14.2.2 Regul atory authority/overlap
Section 14.3 Combustion residuals leachate from landfills and surface impoundments
Section 14.3.1 Legacy wastewater in CCR surface impoundments
Section 14.3.2 Exclusion for leachate from CCR landfills handling CCR displaced as a

result of the ELG rule
Section 15 Coordination of ELG and CCR implementation timelines
Section 15.1 Determining time needed for operational changes to comply with ELG

before requiring decision to close or retrofit surface impoundment under CCR
Section 15.2 Timeframe for compliance under voluntary incentive program
Section 15.3 Timeframe for compliance with CCR leachate ELG limits
Section 15.4 Overall coordination of timeframe for compliance with CCR and ELG

requirements
Section 15.5 Timing of imple mentation unclear/requires clarification
Section 16 Consideration for constraints implementing requirements under both ELG

and CCR rules
Section 16.1 Multiple regulatory authorities as constraint to implementation
Section 16.2

– Other implementation con straints44

Summary of Effluent Limitations Guidelines and Standards for the Steam Electric Power
Generating Point Source Category Proposed Rule
On June 7, 2013 (78 FR 34432), EPA proposed a regulation that would strengthen the
controls on discharges from certain steam electric power plants by revising the technology

- based
effluent limitation guidelines (ELG) and standards for the steam electric power generating point

source ca tegory. As part of this proposal, EPA discussed its current thinking on how a final
RCRA CCR rule might be aligned and structured to account for any final requirements adopted
under the ELG for the Steam Electric Power Generating point source category. Two primary
means of integrating the two rules were discussed: (1) coordinating the design of any final
substantive CCR regulatory requirements and (2) coordinating the timing and implementation of
the rules to allow facilities to coordinate their compliance planning and implementation and to
protect electricity reliability for consumers. EPA stated that consistent with RCRA section
1006(b), effective coordination of any final RCRA requirements with the ELG requirements
would be sought in order to minimize the overall complexity of the two regulatory structures,
and facilitate implementation of engineering, financial, and permitting activities. EPA solicited
comments on how any final CCR final rule might be aligned and structured to account for any
final requir ements adopted under the ELG for the Steam Electric Power Generation point source

category.
Summary of Comments on the Coordination of the ELG and CCR rules (from the ELG proposed rule)

– As part of the June 7, 2013 proposed ELG r ule , EPA requested commen ts related to the intersection between the proposed ELG and CCR rules. Note that general comments are addressed in detail after this summary.

Risk Assessment

– Revisions to the CCR Risk Assessment45

In the proposed ELG rule, EPA requested comment on its proposal to incorporate additional information obtained from the Information Collection Request (ICR) associated with the ELG rulemaking. EPA indicated it expected that the use of the data would lower the CCR rule risk assessment results by “as much as an order of magnitude.” Several commenters agreed that EPA should update the CCR risk assessment using the new data, adding that by using this new data, EPA was promoting sound science with respect to the risk of CCRs. Others commented that the
new data ref

erenced in the ELG proposal clearly demonstrate that, strictly from a risk perspective, the Subtitle D Prime option was the more technically justified option of the two Subtitle D choices presented in the CCR proposal.

Other commenters expressed concern t hat revising the CCR risk assessment with this data set and lowering the expected risk assessment results by as much as an order of magnitude was both reckless and unjustified. They stated that EPA’s risk assessment already under

- represents risk of

water c ontamination in a variety of ways due to uncertainties that EPA is not proposing to address in the ICR. Moreover, they argued that EPA was not proposing to address limitations of the groundwater model EPA used to develop its risk assessment (EPAMCTP) that, if they were fixed, would counteract the risk

- reducing impact of the close proximity of CCW impoundments
to surface water.

Specifically, commenters stated that the EPAMCTP cannot model a scenario in which CCW impoundments directly intersect the water ta ble; however, readily available information shows that many CCW do, in fact, extend directly into the water table and that there are many up

gradient wells in extremely close proximity to coal ash ponds that can be exposed to contamination plumes from CCW ponds through scenarios that the EPAMCTP cannot model. In addition, commenters stated that EPA’s use of the data ignores key factors that affect migration of CCR contaminants including infiltrating leachate

- soil interactions, the effects of water table

mo unding or depletion on the direction of groundwater flow at the local scale, aquifer heterogeneities, and the presence of actual receptors that are likely impacted by the CCR waste management units. EPA must consider the complex interactions of groundwater flow, leachate development, and large waste deposits and examine the site

- specific evidence that identifies risks and documents high levels of contaminants in groundwater at sites near large bodies of water, where such interactions have taken place.46

In addition, commenters stated that because EPA’s risk assessment did not accurately account for all of the potentially impacted receiving waters, the risk was erroneously lowered. Commenters added that the data set, while potentially relevant to determining the quality of water discharged directly to surface water, must not be used to revise the CCR risk assessment since combining the ELG’s treated and untreated leachate data with the CCR

- specific leachate data in the risk assessment would be arbitrary and wi thout rational basis. Commenters also noted that reliance on what they termed to be the one

- sided set of data from the utility industry in response to an ICR, without further checking of its accuracy and consideration of other basic information by EPA, co uld result in the adoption of rules that fail to meet EPA’s obligation to protect human
health and the environment. Others added that the risk assessment should be amended to reflect the large increase in the number of CCR surface impoundments and landfill s (including those that are unlined or inadequately lined) and thus the corresponding increase in risk. Commenters stated that EPA must determine the extent to which both existing and closed CCR disposal units are employing critical safeguards and factor t his information into the final risk assessment.

Commenters stated that the ELG survey was not designed to contribute meaningful data to the risk screening assessment. They argued that EPA needed to revise the risk screening assessment for fugitive dust as the 2009 screening risk assessment considered only one source of fugitive dust emissions from coal ash, i.e., wind erosion, and failed to assess the substantial emissions that occur during unloading and grading of the waste as well as from trucks traveling on the deposited waste at the landfill.
With respect to smaller impoundments, commenters indicated that EPA must look at factors beyond volume, which is not always determinative of the risk posed by CCR impoundments, and
consider a multitude of factors in addition to volume of CCR when determining risk to human
health and the environment.
Commenters noted that a revised risk assessment using the ELG ICR data would support regulation of CCRs under Subtitle D or a Subtitle D Prime option. They added that the new data referenced in the ELG Proposal clearly demonstrate that, strictly from a risk perspective, the Subtitle D Prime option is now the more technically justified option of the two Subtitle D choices presented in the CCR Proposal.47

Overall coordinat ion between the ELG and CCR Rules

Commenters urged EPA to coordinate the ELG and CCR final rules to avoid duplication, overlap, and conflicting requirements between these two environmental programs. Commenters stated that EPA should ensure that the provi sions of this proposed ELG rulemaking do not conflict with or contradict EPA’s active rulemaking on CCRs, including citing the statutory obligation under RCRA Section 1006(b) to avoid duplication with the appropriate provisions of other federal statues, in cluding the ELG rule.

Some commenters noted that since the ELG rule appears to be on course to be finalized before the CCR Rule, resolving any coordination issues between the two rules through “coordinating the design of any final substantive CCR regulato ry requirement” may not be adequate. As such, EPA will need to work through all related issues of these rules before finalizing either rule. Commenters added that care should be taken to avoid pre

- ordaining a result in one proceeding by
what action is tak en in the other proceeding. For example, leachate requirements established by the ELG proceeding may dictate that only a certain type of liner could be used for landfills under the CCR rules regardless of what CCR comments say about the efficacy (or lack t hereof) of using that type of liner solely in the context of the statutory and regulatory context of the CCR rulemaking. Likewise, EPA’s anticipated resolution of certain matters in the CCR proceeding should not be determinative of the rules applied to rel ated ELG matters. In short, EPA should not reach a conclusion in the one proceeding that indirectly and inexorably leads to a result that EPA would otherwise be unable to effectuate in the other proceeding.

Other commenters stated that consolidating all r egulatory requirements for impoundments and landfills under the CCR rulemaking process is more transparent and efficient for the regulated community. Splitting the regulatory requirements between two program authorities, as contemplated in this rulemaking, would create confusion in the regulated community. Commenters suggested that in order for there to be effective coordination between the final CCR and ELG rules, the same regulatory agency must have authority over both regulatory programs for implementati on and enforcement of the two new sets of rules. One state suggested the use of a tiered approach based on several factors for determining the time to complete closure of the48

largest category of surface impoundments such as size, whether “clean

- closed” or “capped” with

waste

- in

- place, site geology, volume of ash, depth to groundwater, time to dewater, and volume of material for the final cover. Others indicated that by allowing for the ongoing use of impoundments for specific wastes and allowing permit writ er discretion for imposing complimentary and site condition appropriate effective dates for regulation as well as the timing and closure requirements for impoundments.

Some commenters provided specific suggestions for clarifying the ELG/CCR proposed rules

. Examples included requesting that EPA explicitly acknowledge that CWA new source performance standards (NSPS) are not triggered by a new cell or new landfill built to manage CCR waste streams displaced as a result of a facility’s compliance with a new EL G requirement; that the final ELG rule should not address seepage or leakage from a surface impoundment to groundwater; instead, such issues should be addressed in the CCR rulemaking and by applicable state regulation. In addition, several commenters state d that EPA should take into consideration the cumulative effect of its recent proposed and enacted rules on the electric power industry and provide maximum flexibility regarding implementation and implementation timelines to mitigate the collective impact of all the various rulemakings.

With respect to the concept of non

- commingling of select waters associated with CCRs with other waters produced within the EGU Facility, commenters stated that this would impose significant costs for facilities to redesign and implement new water management systems to prevent commingling which will result in significant expenditures for new treatment technology and operations further impacting and increasing cost of electricity. As such, they argued that commingling of water s from faculties utilizing dry ash management systems should be allowed. Commenters also stated that the proposed anti

- circumvention provisions were impractical and would result in overly stringent standards and compliance monitoring requirements; would
d iscourage wastewater reuse; central treatment and the recycling, reuse, and conservation of water; and that these provisions should be revised to allow water reuse provided all applicable water quality standards are met.49

With respect to coordination of th e ELG and CCR rules and the Subtitle D Prime option, many commenters stated that EPA should align the proposed ELG rule with Subtitle D Prime of the proposed CCR rule, indicating that because Subtitle D prime allows surface impoundments to continue operati ng for the remainder of their useful life, it is the most compatible option for harmonizing with the ELG Rule. Selection of the Subtitle D Prime option would enable CCR impoundments that meet applicable groundwater monitoring and corrective action require ments, to remain operational and to continue to manage and receive specified wastewaters as contemplated under the steam electric ELGs proposal. It would provide the ability to continue discharging legacy wastewaters until such time as the NPDES permitting authority mandates compliance is in jeopardy. In addition, commenters provided suggestions for revising the Subtitle D Prime option to better integrate and coordinate with the ELG rule, including suggestions related to specified location restrictions, cl osure requirements, compliance obligations, liner retrofit requirements and state implementation.

C oordination of CCR Substantive Requirements with ELG Requirements
Commenters encouraged EPA to coordinate CCR substantive requirements for CCR units with
EL G requirements. They noted that any regulations of fly ash transport water, bottom ash transport water, FGD wastewater, combustion residual leachate, or the ponds and landfills that
receive CCRs will be relevant to the CCR rule and deserve close coordinat ion.

With respect to fly ash and bottom ash, commenters noted that for the dry handling of fly ash transport water as BAT, it would be important for EPA to immediately establish the concomitant design and maintenance standards essential for the construct ion and safe operation of engineered coal ash landfills under RCRA. Commenters stated that if the ELG rule requires dry handling of fly ash or bottom ash, a significant portion of the industry may be required to construct on

- site
landfills to handle the dr y material or transport and dispose of thousands of tons of CCRs per year in off

- site landfills. If the CCR rule requires these ponds to close, one negative consequence is the cost associated with the loss of the remaining capacity and the procurement of a lternative disposal options. Commenters argued that any further regulation of fly ash transport water and bottom ash transport water is unjustified and unwarranted because dry handling is not cost
effective for either wastewater and that the same is true f or combustion residual leachate.50

Commenters stated that the ELGs should maintain the option of impounding bottom ash transport water for all existing facilities. They added that a prohibition on the discharge of fly ash/bottom ash transport water would hav e the unintended consequence of compelling the closure of impoundments under the proposed CCR rule, while under the proposed ELG rule, that particular impoundment may continue to be operated for some period of time until the legacy
wastewaters have been di scharged. They stated that many utilities currently use backup fly ash sluice systems and believe that their continued use of such systems as a backup system for limited periods of time is appropriate and most cost

- effective, instead of installing backup d ry handling systems. In addition, industry experience indicates that converting existing EGU’s bottom ash handling systems to dry handling systems is extremely costly and has minimal health
and environmental benefits.
Commenters indicated that assuming th at the final ELG rule results in some facilities ceasing the management of certain CCR transport waters in surface impoundments, there should be corresponding modifications in the substantive requirements for surface impoundments in the
final CCR rule. The y argued that reduced use of impoundments for the management of CCR necessarily will reduce the risk of potential CCR groundwater contamination from these impoundments. This consequence must be considered for purposes of a final CCR rule.

Commenters also s tated that bottom ash is relatively inert. The low level of toxics in bottom ash transport water, as well as the high costs of retrofitting bottom ash handling systems at existing facilities as discussed below, render any “zero discharge” approach (i.e., c losed loop system) to bottom ash transport water unjustified.
Several commenters noted that State requirements may necessitate the accelerated closure of fly ash ponds that are no longer used for CCR disposal. This accelerated schedule will incur
addition al costs for the affected companies that have not been accounted for by EPA.
Voluntary incentive program for closing CCR impoundments/eliminating process wastewater
Several commenters supported EPA’s proposed voluntary incentive program for closing CCR impoundments as a way to eliminate process wastewater. Since impoundment closures represent the most environmentally significant contribution toward ZLD and as such, the incentive for a commitment to close impoundments should provide for additional compli ance timing reflecting51

the value of this closure commitment. Commenters added that the timing of impoundment closure under the ELG regulations should be consistent with the timing of impoundment closure under the final CCR regulation, including when incen tives are being assigned, enabling permit writer discretion giving consideration to site specific conditions and control measures. In addition, commenters requested that EPA clarify when the two and the five years begin to run and that the starting dates s hould be consistent with the “as soon as possible” dates after July 1, 2017, for the different waste streams.

Commenters also stated that the voluntary incentives are unlikely to do much good because they are too limited. They encourage dischargers to und ertake only two specific actions, namely eliminating all discharges for the entire plant or closing surface impoundments. Commenters
indicated that it would be more effective to offer incentives to eliminate individual waste
streams. The rule could allow a dditional time to eliminate discharges of pollutants waste stream

by

- waste stream for those waste streams that are not otherwise subject to a “no discharge” limit. This would encourage progress toward eliminating discharges even by permittees who cannot
cl ose an impoundment or eliminate discharges for the entire plant. Commenters also noted that the incentive toward zero liquid discharge would be more effective if the incentive program was tiered or scaled. One commenter stated that the incentive program i s clearly targeted at the use of CCR surface impoundments, and is not appropriate for regulation under the Clean Water Act. The goal of this program is more appropriately managed under the pending CCR rule.

Best Management Practices (BMPs) for CCR Surface Impoundments
A number of commenters supported establishing required BMPs applicable to surface impoundments at power plants that manage CCR material and establishing BMPs applicable to active and inactive surface impoundments at power plants that manage C CRs, which represent the primary and most significant risk associated with the generation and management of CCR material. However, commenters stated that the structural integrity requirements for surface impoundments are best addressed as part of the pendi ng CCR rule. They indicated that the MSHA were a good starting point for developing comparable standards for CCR impoundments. However, these standards should be developed as part of a single, comprehensive regulatory program under RCRA as proposed in the CCR rulemaking rather than through conditions in52

NPDES permits and that the proposed BMPs for surface impoundment structural integrity should be omitted from the final ELGs as unnecessary and duplicative. Other commenters provided suggestions on how to str engthen the MSHA requirements related to inspection, reporting, and corrective action requirements.
Several commenters argued that EPA’s BMPs proposal is insufficiently described to allow for meaningful comment at this stage and reflects additional flawed assumptions, as well as again insufficient necessary underlying data and analysis (e.g., of associated costs). They added that such BMPs are likely to duplicate and potentially conflict with existing federal and state regulation of such impoundments, and that they do not take cumulative impacts into consideration. Commenters stated that the BMPs may duplicate or conflict with State Dam Safety programs, and that BMPs are not needed for surface impoundments. In addition,
commenters stated that EPA has fail ed to provide any definition or clarification regarding the “independence” of a registered professional engineer for the purposes of the annual certification for ensuring structural integrity of surface impoundments. Commenters also provided suggested
revi sions to the proposed BMPs related to applicability, EAP, and other requirements.
Several commenters argued that the MSHA standards are not appropriate. MSHA regulations address coal slurry impoundments at coal mines and not impoundments containing coal

c ombustion byproducts at coal

- fired power plants. In most cases, MSHA regulations apply where there are mine workings beneath or near a refuse embankment or impoundment where it may be appropriate to consider instabilities and failure occurrences of the imp oundments.
Commenters stated that establishing BMPs only for those CCR surface impoundments that are “direct dischargers.” is unacceptable because such a narrow exercise of EPA’s authority under the CWA leaves much of the universe of large and life

- threate ning CCR impoundments unaddressed. Consequently it is essential that EPA establish BMPs to ensure CCR impoundments are safely closed to minimize pollutant discharge to such waters. Where CCR is left in place, EPA must require closure plans with minimum saf eguards including provisions for major slope stability, groundwater monitoring, cap

- and

- cover requirements, provisions to preclude the probability of future impoundment of water, and post

- closure care.
Combustion Residuals Leachate from Landfills and Surfa ce Impoundments53

Commenters stated that, to ensure harmonization between the two rules, impoundments that formerly managed CCR but continue to accept other regulated waste streams should be able to continue operating so long as they are providing a necessar y function at the facility. Commenters stated that EPA needed to clarify several aspects related to definitions and applicability and exclusions, including related to beneficial use and storm water runoff and clarifying terms.
Commenters generally supporte d EPA’s plan to designate wastewaters generated before the compliance date set by the permitting authority as legacy wastewater subject only to existing limitations. Without the legacy wastewater provisions, utilities would be forced to develop technologie s that could separately treat the current and legacy wastewaters. For example, if ongoing and legacy fly ash transport waters had to meet BAT limitations, there would be no practicable way to get rid of the legacy transport waters, since there would be “no discharge” requirement under the BAT limitations. Some of the water could be recycled, particularly in bottom ash systems, but for the most part, there would be no effective way to dispose of the legacy wastewaters other than by the energy intensive proce ss of forced evaporation. However, commenters indicated that this provision needed to be addressed in the CCR rule noting that the Subtitle D Prime option would allow existing surface impoundments to continue managing
CCRs and low volume wastewaters while implementing groundwater monitoring and corrective action, if necessary and therefore was the only reasonable option to harmonize the CCR and ELG
rules.
Coordination of ELG and CCR Implementation Timelines

Commenters stated that EPA must integrate compli ance options and timelines for the CCR and ELG final rules and that aligning the timing of the two rules is important in order for facilities to fully understand its ELG requirements prior to having to make compliance decisions regarding
the CCR rule. Coor dinate the timing and implementation of the final rule ELG requirements with the final rule CCR requirements is important to provide generating plants a reasonable and certain timeline for implementation that allows for coordinated planning, as well as con sideration of potential electric reliability concerns. Moreover, owners/operators of steam electric facilities also must coordinate ELG compliance activities with compliance plans and potentially significant plant modifications that may be required under o ther forthcoming EPA rules54

applicable to steam generators, including the CCR rule and the cooling water intake structure Clean Water Act Section 316(b) standards.
Commenters indicated that EPA needs to clarify the time frame for required compliance. For th e regulated community to be able to adequately develop and implement a sensible compliance strategy, EPA must provide clarity as to the final requirements of both the ELG and CCR rules before requiring the industry to invest significant resources and under take major capital projects. It is only with clarity and the finalization of the proposed rules that a specific owner/operator will be able to evaluate their regulatory compliance options. This includes clarification of the

t imeframe for compliance under v oluntary incentive program.
To avoid inconsistency, commenters requested that EPA eliminate the automatic closure requirement in the CCR rule if an impoundment is still being used to manage wastewater streams
consistent with the ELG rule. In the event that the ELG rule compels a facility to cease introduction of CCRs into an impoundment, the CCR rule would then require the facility to commence closure of that impoundment. This premature closure of impoundments is inconsistent with the ELG requirements that promote the continued use of these same impoundments for a critical wastewater treatment purpose, so long as they are operated in an environmentally sound manner.
Other commenters suggested that the best way to ensure adequate time to comply is to leave i t in the hands of the permit writer to decide the “as soon as possible” date for compliance, as EPA has proposed in the ELG Rule. Giving permit writers the flexibility to allow sufficient time for plant modifications that may be required by the new rule. S uch flexibility would be particularly important if a facility owner/operator decides to close a CCR impoundment and implement an alternative dry ash management system. It could take 8 to 10 years to site, design, permit, construct, and render operational a lternative dry management systems, including constructing new wastewater treatment and landfill capacity to replace that provided by the impoundments.
Some commenters supported a step

- wise approach for implementation of both rules. It is important that the regulated community know with certainty what the regulatory requirements will be under both sets of rules before it invests significant resources and begins to undertake major capital modifications that likely will be required to comply with these inter

- r elated regulations.55

Commenters noted that a five

- year implementation time period for a wet to dry conversion is not practical given the uncertainties over the availability of adequate engineering capacity to conduct
all of the conversions for the entire in dustry within this time period. The amount of equipment and labor needed to support so many projects within the same time period would be overwhelming. EOP estimates that the industry will need up to ten years to site, design, permit, construct and make op erational alternative disposal capacity for displaced CCR in addition to the needed construction of new wastewater treatment capacity. Others noted that the time periods proposed for closure of existing impoundments are impractical and infeasible for large r impoundments In addition, the requirements to eliminate discharges from bottom ash impoundments in the ELG proposed rule are not cost

- effective, and should not be retained in the
final rule.
Consideration for any other practical constraints facilities ma y face in implementing any requirements under both the ELG and CCR rules

Commenters noted that EPA should ensure that agency

- wide policies do not conflict with proposed rulemakings and that EPA should allow the States their existing permitting authority
wi th respect to the establishment of internal monitoring points and combined waste streams.
Commenters stated that one of the practical aspects that we have considered is how implementation and enforcement of the two rules will occur between the EPA and sta te authorities. Therefore to promote coordination, simplification, and harmonization of the CCR and ELG rules, it was recommend that EPA develop the CCR rule to include a mechanism that allows for state program administration instead of the self

- implementi ng approach in the current proposal. They noted that creating a State

- Administered CCR Permit Program would facilitate
coordination between Federal and State authorities and between the CCR Rule and the ELG
Rule.

One commenter indicated that EPA needed to clarify its intentions regarding impoundments that handle or manage some CCR wastewater, in spite of the multiple significant regulatory concerns that naturally arise under those circumstances.
Below are the individual response to comments for the Effluent Limitations Guidelines (ELG) and Standards for the Steam Electric Power Generating Point Source Category, EPA requested56

comments related to the intersection between the proposed ELG and CCR rules. This volume of
the “C omment S ummary and R esponse ” document addresses only those ELG comments that directly respond to the Agency’s request for comment on (1) coordinating the design of any final substantive CCR regulatory requirements and (2) coordinating the timing and implementation of
the rules to all ow facilities to coordinate their compliance planning and implementation and to protect electricity reliability for consumers. Comments pertaining to the risk assessment are addressed in Volume X of the “Comment Summary and Response (CSR)” document; commen ts pertaining to the regulatory impact analysis are addressed in Volume XII.



### Section 6.9

– Risk assessment

- use of ELG facility specific ICR collected data

These comments are all addressed in Volume X of the CSR document. 

### Section 6.9.1

– Comments on the ELG data set

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0009

- 3 Organization: Dominion Resources Services, Inc. Commenter Type: Electric Utility Company
Comment: The Agency has also acknowledged that information obtained since the proposed CCR rule's publicatio n in June 2010, most notably the ELG information collection request (ICR), has made it question the validity of the CCR rule's original risk assessment. We agree that these data provided many new and updated factors, including impoundment type, size, and l ocation that should have a direct effect on lowering the CCR rule's original risk assessment. In fact, the Agency states in the proposed ELG rule that incorporating these data into an updated CCR risk assessment model would "have the potential to lower the CCR rule risk assessment results by as much as an order of magnitude." 78 Fed. Reg. at 34442. We request that this new acknowledgement of a lower risk assessment be r eflected in the final CCR rule. RCRA Subtitle D Prime Option is the Only Option Consisten t with the ELG Rule and Should be the Selected CCR Rule Option
Th is comment is addressed in Volume X of the CSR document.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 17 Organization: Southern Company Commenter Type: Electric Utility Company
Comment: Southern agrees that EPA should update the CCR risk assessment using the new data. When EPA uses these new data in a manner that promotes sound science, Southern agrees with EPA that the updated results have the “potential to lower the CCR Rule risk assessment results by as much as an order of magnitude”[Footnote 54: Id. col. 2.]. Southern urges EPA to update the CCR risk assessment with data from the ELG ICR, harmonize its conclusions with the final57

ELG requirements, and in turn “provide strong suppo rt for a conclusion that regulation of CCR disposal under RCRA Subtitle D would be adequate”[Footnote 55: Id.].
Th is comment is addressed in Volume X of the CSR document.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 12 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Advocacy Group
Comment: USWAG would like to emphasize that new data referenced in the ELG Proposal clearly demonstrate that, strictly from a risk perspective, the Subtitle D Prime option is now the more technically justified option of the two Subtitle D choices presented in the CCR Proposal. Under the Subtitle D Prime option, existing surface impoundments can continue to operate for the remainder of their useful lives, provided they continue to meet all applicable gr oundwater monitoring and any associated corrective action requirements. 75 Fed. Reg. at 35210. Under the Subtitle D Prime option, any groundwater contamination threats from an impoundment during its operating life and during post

- closure would be detected and appropriate corrective action would be taken. In all other respects, the Subtitle D Prime and the alternative Subtitle D option are identical. Response : Th is comment is addressed in Volume X of the CSR document. The reader is also referred to the disc ussion in Units IV and V of the preamble supporting this rule for a discussion of the Bevill deferral and the subtitle D approach for regulating the disposal of CCR.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0033

- 3 Organization: Kansas City Board of Public Utilities (BPU) Commenter Type: Electric Utility Company
Comment: Another concern is the apparent blurring of the lines as to what and how data can be used in each of the two proceedings. See 78 FR at 34442 (discussing how new data in the CCR rule might af

fect the risk assessment in that proceeding). Even though it appears that the results of this intermingling “could provide strong support for a conclusion that regulation of CCR disposal under RCRA Subtitle D would be adequate,” id., a conclusion that BPU supported in its CCR comments, each proceeding ultimately must stand on its own merits

. Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0037

- 1 Organization: Appalachian Voices and Clean Water for North Carolina Commenter Type: Advocacy Group58

Comment: EPA proposes to incorporate additional information obtained from its Information Collection Request(ICR) associated with the Effluents Limitation Guidelines rulemaking in a manner that it expects will lower the CCR rule risk assessment results by “as much as a n order of magnitude.” This proposal is both reckless and unjustified because EPA’s risk assessment already under

- represents risk of water contamination in a variety of ways due to uncertainties that EPA is not proposing to address (but could have easily a ddressed) in the ICR. Moreover, EPA is not proposing to address limitations of the EPAMCTP model that, if they were fixed, would counteract the risk

- reducing impact of the close proximity of CCW impoundments to surface water. Response : Th is comment is add ressed in Volume X of the CSR document. The reader is also referred to the discussion in Units IV and V of the preamble supporting this rule for a discussion of the Bevill deferral and the subtitle D approach for regulating the disposal of CCR.

Comment Nu mber: EPA

- HQ

- RCRA

- 2013

- 0209

- 0048

- 1 Organization: Citizens Coal Council (CCC) Commenter Type: Advocacy Group
Comment: Reliance on the one

- sided set of data from the utility industry in response to an ICR, without further checking of its accuracy and consideration of other basic information by EPA could result in the adoption of rules that fail to meet EPA’s obligation to protect human health and the environment. Our examination of ash disposal practices at power plants in Missouri and Indiana suggests that threats to groundwater and drinking water are imminent and not reflected in the information that EPA appears to be gathering for its rulemakings under RCRA and the CWA on coal ash. Response : Th is comment is addressed in Volume X of the CSR document. The reader is also referred to the discussion in Units IV and V of the preamble supporting this rule for a discussion of the Bevill deferral and the subtitle D approach for regulating the disposal of CCR.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0050

- 1 Organization: Citizens Coal Council (CCC) Commenter Type: Advocacy Group
Comment: Attachments providing supporting information for the Citizens Coal Council comments (submission EPA

- HQ

- RCRA

- 0209

- 0048) related to the CCR risk assessment. Includes on Coal As h Exposure to the Water Table and Complex Hydrogeology Put Wells and Human Receptors at Risk data from MO Power Plants and elevation data from Mo Power Plant ash ponds

. Response : Th is comment is addressed in Volume X of the CSR document. The reader is also referred to the discussion in Units IV and V of the preamble supporting this rule for a discussion of the Bevill deferral and the subtitle D approach for regulating the disposal of CCR.59

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0054

- 11 Organization: Earthjustice Commenter Type: Advocacy Group
Comment: EPA’S USE OF CHEMICAL DATA SUBMITTED TO THE OFFICE OF WATER TO MODEL IMPACTS TO GROUNDWATER FROM CCR DISPOSAL UNITS IS ARBITRARY AND CAPRICIOUS AND WITHOUT RATIONAL BASIS, BECAUSE THE DATA ARE NOT REPRESENTATIVE OF LEACHATE FROM CCR LANDFILLS AND IMPOUNDMENTS. Response : Th is comment is addressed in Volume X of the CSR document. The reader is also referred to the discussion in Units IV and V of the preamble supporting this rule for a discussion of the Bevill deferral and the subtitle D approach for regulating the disposal of CCR.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0054

- 12 Org anization: Earthjustice Commenter Type: Advocacy Group
Comment: EPA MUST CONSIDER INCREASED RISK FROM THE SUBSTANTIAL RISE IN THE NUMBER OF UNLINED AND INADEQUATELY LINED SURFACE IMPOUNDMENTS IDENTIFIED IN THE DATA GATHERED FOR THE ELG RULE. Response : Th is comment is addressed in Volume X of the CSR document. The reader is also referred to the discussion in Units IV and V of the preamble supporting this rule for a discussion of the Bevill deferral and the subtitle D approach for regulating the disposal of CCR.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0054

- 15 Organization: Earthjustice Commenter Type: Advocacy Group
Comment: EPA MUST CAREFULLY ASSESS ALL ELG DATA THAT RESULTS IN INCREASED RISK TO HUMAN HEALTH AND THE ENVIRONMENT AND REVISE THE CCR RISK ASSESSMENT ACCORDINGLY. Response : The Agency acknowledges and appreciates this comment. Th is comment is addressed in Volume X of the CSR document. The reader is also referred to the discussion in Units IV and V of the preamble supporting this rule for a d iscussion of the Bevill deferral and the subtitle D approach for regulating the disposal of CCR.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0054

- 16 Organization: Earthjustice Commenter Type: Advocacy Group
Comment: EPA DID NOT ACCURATELY DETERMINE ALL THE POTENTIALLY IMPACTED RECEIVING WATERS FOR SOME COAL PLANTS.60

Response : The Agency acknowledges and appreciates this comment. Th is comment is addressed in Volume X of the CSR document. The reader is also referred to the discussion in Units IV and V of the p reamble supporting this rule for a discussion of the Bevill deferral and the subtitle D approach for regulating the disposal of CCR.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0055

- 1 Organization: ARIPPA Commenter Type: Trade Association
Comment: A review of EPA’s Technical Development Document for the Proposed Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category reveals several fundamental flaws in the development of the proposed rule due to omitting an e valuation of all the end uses of CCRs

. The CCR rule did not address the beneficial utilization of coal combustion byproducts in mine land reclamation. Thus, EPA’s focus in this Proposed ELG rule is predicated on the CCRs being disposed of a lined landfill. There is nothing in the development document to indicate that EPA considered other methods of managing the CCRs. Response : The Agency acknowledges and appreciates this comment. Th is comment is addressed in Volume X of the CSR document. The reader is also referred to the discussion in Units IV and V of the preamble supporting this rule for a discussion of the Bevill deferral and the subtitle D approach for regulating the disposal of CCR. The commenter is also referred to Units IV and VI for a complete discu ssion of the beneficial use aspects of the rule.



### Section 6.9.2

– Interception analysis

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0037

- 1 Organization: Appalachian Voices and Clean Water for North Carolina Commenter Type: Advocacy Group
Comment: EPA proposes to incorporate additional information obtained from itsInformation Collection Request (ICR) associated with the Effluents LimitationGuidelines rulemaking in a manner that it expects will lower the CCR rule risk assessment results by “as much a s an order of magnitude.” This proposal is both reckless and unjustified because EPA’s risk assessment already under

- represents risk of watercontamination in a variety of ways due to uncertainties that EPA is not proposing toaddress (but could have easily addressed) in the ICR. Moreover, EPA is not proposing toaddress limitations of the EPAMCTP model that, if they were fixed, would counteractthe risk

- reducing impact of the close proximity of CCW impoundments to surface water.

We believe that EPA's risk ass essment model dramatically under

- represents water contamination risk in North Carolina and most likely other states because: A. The groundwater model EPA uses to develop its risk assessment (EPAMCTP) cannot model a scenario in which CCW impoundments direct ly intersect the water table, however, readily available information shows that many CCW impoundments in North Carolina (and likely61

elsewhere) do, in fact, extend directly into the water table.B. There are many up

- gradient wells in extremely close proximit y to coal ash ponds that can be exposed to contamination plumes from CCW ponds through scenarios that the EPAMCTP simply cannot model. Our own sampling, performed in partnership with Duke University, is finding elevated levels of numerous toxic metals asso ciated with coal ash in up

- gradient wells closest to the coal ash ponds at the G. G. Allen and Belews Creek power plants. Response : The Agency acknowledges and appreciates this comment. Th is comment is addressed in Volume X of the CSR document. The reader is also referred to the discussion in Units IV and V of the preamble supporting this rule for a discussion of the Bevill deferral and the subtitle D approach for regulating the disposal of CCR.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0050

- 1 Orga nization: Citizens Coal Council (CCC) Commenter Type: Advocacy Group
Comment: Attachments providing supporting information for the Citizens Coal Council comments (submission EPA

- HQ

- RCRA

- 0209

- 0048) rela ted to the CCR risk assessment, which i ncludes information on Coal Ash Exposure to the Water Table and Complex Hydrogeology
, Put Wells and Human Receptors at Risk data from MO Power Plants
, and elevation data from Mo Power Plant ash ponds

. Response : The Agency acknowledges and appreciates this comment

. Th is comment is addressed in Volume X of the CSR document. The reader is also referred to the discussion in Units IV and V of the preamble supporting this rule for a discussion of the Bevill deferral and the subtitle D approach for regulating the disposa l of CCR.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0054

- 9 Organization: Earthjustice Commenter Type: Advocacy Group
Comment : EPA’S PROPOSAL TO USE A GROUNDWATER INTERCEPTION MODEL THAT GROSSLY UNDERESTIMATES RISK TO DRINKING WATER IS ARBITRARY AND CAPRICIOUS AND CONTRARY TO LAW. Response : The Agency acknowledges and appreciates this comment. Th is comment is addressed in Volume X of the CSR document. The reader is also referred to the discussion in Units IV and V of the preamble supporting this rule for a discussion of the Bevill deferral and the subtitle D approach for regulating the disposal of CCR.



### Section 6.9.3

– Exclusion of smaller impoundments62

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0054

- 11 Organization: Earthjustice Commenter Type: Advocacy Group
Comment: EPA MUST CONSIDER INCREASED RISK FROM THE SUBSTANTIAL RISE IN THE NUMBER OF UNLINED AND INADEQUATELY LINED SURFACE IMPOUNDMENTS IDENTIFIED IN THE DATA GATHERED FOR THE ELG RULE. Response : The Agency acknowledges and appreciates this comment. Th is comment is addressed in Volume X of the CSR document. The reader is also referred to the discussion in Units IV and V of the preamble supporting th is rule for a discussion of the Bevill deferral and the subtitle D approach for regulating the disposal of CCR.



### Section 6.9.4

– Risk of fugitive dust at landfills

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0054

- 13 Organization: Earthjustice Commenter Type: Advocacy Group
Comment: EPA MUST REVISE THE RISK SCREENING ASSESSMENT FOR FUGITIVE DUST, BUT MUST NOT MISAPPLY ELG DATA

. Response : The Agency acknowledges and appreciates this comment. Th is comment is addressed in Volume X of the CSR document. The reader is also referred to the discussion in Units IV and V of the preamble supporting this rule for a discussion of the Bevill deferral and the subtitle D approach for regulating the disposal of CCR.



### Section 6.9.5

– Revised risk assessment supporting CCR disposal under RCRA Subtitle D

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0009

- 3 Organization: Dominion Resources Services, Inc Commenter Type: Electric Utility Company
Comment: The Agency has also acknowledged that information obtained since the proposed C CR rule's publication in June 2010, most notably the ELG information collection request (ICR), has made it question the validity of the CCR rule's original risk assessment. We a gree that these data provided many new and updated factors, including impoundment type, size, and location that should have a direct effect on lowering the CCR rule's original risk assessment. In fact, the Agency states in the proposed ELG rule that incorp orating these data into an updated CCR risk assessment model would "have the potential to lower the CCR rule risk assessment results by as much as an order of magnitude." 78 Fed. Reg. at 34442. We request that this new acknowledgement of a lower risk asses sment be r eflected in the final CCR rule.63

RCRA Subtitle D Prime Option is the Only Option Co nsistent with the ELG Rule and s hould be the Selected CCR Rule Option

. Response : The Agency acknowledges and appreciates this comment. Th is comment is addressed in Volume X of the CSR document. The reader is also referred to the discussion in Units IV and V of the preamble supporting this rule for a discussion of the Bevill deferral and the subtitle D approach for regulating the disposal of CCR.

Commen t Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0009

- 4 Organization: Dominion Resources Services, Inc Commenter Type: Electric Utility Company
Comment: This conclusion that Subtitle D regulation is warranted by a revised CCR risk assessment co upled with the discussion regarding the continued use of impoundments throughout their useful life as critical wastewater treatment systems makes Subtitle D Prime the best and only option to be implemented in the final CCR rule. Therefore, we recommend that the Agency select the Su btitle D Prime option in the final CCR rule. Response : The Agency acknowledges and appreciates this comment. Th is comment is addressed in Volume X of the CSR document. The reader is also referred to the discussion in Units IV and V of the preamble support ing this rule for a discussion of the Bevill deferral and the subtitle D approach for regulating the disposal of CCR.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 17 Organization: Southern Company Commenter Type: Electric Utility Company
Comment: Southern agrees that EPA should update the CCR risk assessment using the new data. When EPA uses these new data in a manner that promotes sound science, Southern agrees with EPA that the updated results have the “potential to lower the CCR Rule risk assessment res ults by as much as an order of magnitude”[Footnote 54: Id. col. 2.]. Southern urges EPA to update the CCR risk assessment with data from the ELG ICR, harmonize its conclusions with the final ELG requirements, and in turn “provide strong support for a con clusion that regulation of CCR disposal under RCRA Subtitle D would be adequate”[Footnote 55: Id.].

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0017

- 1 Organization: BHP Billiton New Mexico Coal Commenter Type: Other Company
Comment: Although a final risk assessment for the CCR rule has not yet been completed, reliance on the data and analyses discussed above may have the potential to lower the CCR rule risk assessment results by as much as an order of magnitude. If this proves to b e the case, EPA's current thinking is that, the revised risks, coupled with the ELG requirements that the Agency64

may promulgate, and the increased Federal oversight such requirements could achieve, could provide strong support for a conclusion that regu lation of CCR disposal under RCRA Subtitle D would be adequate. Response : The Agency acknowledges and appreciates this comment. Th is comment is addressed in Volume X of the CSR document. The reader is also referred to the discussion in Units IV and V of the preamble supporting this rule for a discussion of the Bevill deferral and the subtitle D approach for regulating the disposal of CCR.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0022

- 4 Orga nization: Gypsum Association Commenter Type: Trade Association
Comment: The Gypsum Association maintains that Subtitle D regulation is appropriate irrespective of the outcome of the Proposed ELG Rule or corresponding new data. Indeed, the Gypsum Association advocated for such an outcome in its November 2010 comments on the Proposed CCR Rule. In those comments, the Gypsum Association provided a comprehensive overview of external and internal environmental, health and safety studies that have rep eatedly affirmed the safety of FGD gypsum and FGD wallboard. In connection with its review of and comments on the Proposed CCR Rule, the Gypsum Association retained ARCADIS, an environmental consulting firm, to evaluate data concerning FGD gypsum and de termine whether FGD gypsum and FGD gypsum wallboard are safe and environmentally responsible. All publicly available data regarding FGD gypsum were reviewed, as was the Proposed CCR Rule and its underlying data. Based on that review, ARCADIS found that FGD gypsum simply is not RCRA hazardous. Moreover, ARCADIS concluded that none of the analyses relied upon by EPA presented any scientifically defensible information suggesting that FGD gypsum poses an environmental or human health concern. Instead, all available data confirm the safety of the product. Therefore, regulation of FGD gypsum under Subtitle D remains the appropriate approach regardless of which regulatory option is selected for the Proposed ELG Rule or consideration of the new utility data . Further, the data strongly support the explicit regulatory exemption for FGD gypsum that the Gypsum Association has proposed. Response : The Agency acknowledges and appreciates this comment. Th is comment is addressed in Volume X of the CSR document. The reader is also referred to the discussion in Units IV and V of the preamble supporting this rule for a discussion of the Bevill deferral and the subtitle D approach for regulating the disposal of CCR.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0025

- 10 Organization: Southern Company Commenter Type: Electric Utility Company
Comment: In the context of the ELG proposed rule, as well as in the course of litigation concerning the deadline for a CCR rule under RCRA, [Footnote 17: Declaration of Ms. Suzanne Rud inski, Appalachian Voices v. EPA, No. 1:12

- cv

- 523

- RBW, at 8 (D.D.C. Oct. 11, 2012).]65

EPA has recognized that the outcome of using this new and updated information “couldsignificantly affect the results of that assessment.” [Footnote 18: 78 Fed. Reg. at 34, 442.] Southern Company supports the use of these data in a manner th at promotes sound science in its applicability to “provide strong support for a conclusion that regulation of CCR disposal under RCRA Subtitle D would be adequate.” [Footnote 19: Id.] Respo nse : The Agency acknowledges and appreciates this comment. Th is comment is addressed in Volume X of the CSR document. The reader is also referred to the discussion in Units IV and V of the preamble supporting this rule for a discussion of the Bevill deferral and the subtitle D approach for regulating the disposal of CCR.
Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 12 Orga nization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Advocacy Group
Comment: USWAG would like to emphasize that new data referenced in the ELG Proposal clearly demonstrate that, strictly from a risk perspective, the Subtitle D Prime option is now the more technically justified option of the two Subtitle D choices presented in the CCR Proposal. Under the Subtitle D Prime option, existing surface impoundments can continue to operate for the remainder of their useful lives, provided they continue to meet all applicable groundwater monitoring and any associated corrective action requirements. 75 Fed. Reg. at 35210. Under the Subtitle D Prime option, any groundwater contamination threats from an impoundment during its operating life and dur ing post

- closure would be detected and appropriate corrective action would be taken. In all other respects, the Subtitle D Prime and the alternative Subtitle D option are identical.
Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0027

- 3 Organization: Kentucky Depart ment for Environmental Protection Commenter Type: State Government
Comment: Although a final risk assessment for the CCR rule has not yet been completed, reliance on the data and analyses discussed above may have the potential to lower the CCR rule risk as sessment results by as much as an order of magnitude. If this proves to be the case, EPA’s current thinking is that, the revised risks, coupled with the ELG requirements that the Agency may promulgate, and the increased Federal oversight such requirements could achieve, could provide strong support for a conclusion that regulation of CCR disposal under RCRA Subtitle D would be adequate.As stated in its original comments, the Commonwealth strongly supports the Subtitle D approach to the CCR landfill and surf ace impoundment rules.
Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0027

- 3 Organization: Kentucky Department for Environmental Protection Commenter Type: State Government Comment: Another concern is the apparent blurring of the lines as to what and how data can be used in each of the two proceedings. See 78 FR at 34442 (discussing how new data in theCCR rule might affect the risk assessment in that proceeding). Even though it appear sthat the results of this intermingling “could provide strong support for a conclusion that regulation of CCR disposal under RCRA Subtitle D would be adequate,” id., a conclusion that BPU supported in its CCR comments, each proceeding ultimately must stand on its own merits

.66

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0040

- 7 Organization: MidAmerican Energy Holdings Company (MidAmerican) Commenter Type: Electric Utility Company
Comment: The substantive requirements of both the CCR and ELG rules must be coordinat ed.EPA’ s evaluation of how to harmonize the substantive requirements in the two rules focuses oncoordinating requirements for surface impoundments because these units will be regulated under both rules. [ Footnote 24: Id. at 34441.] EPA should align the prop osed ELG rule with Subtitle D Prime of the proposed CCR rule.
Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0052

- 4 Organization: Duke Energy Commenter Type: Electric Utility Company
Comment: Duke Energy filed comments in the recent CCR NODA [Footnote 6 SeeComments of Duke Energy on the Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities; Notice of Data Availability and Request for Comment; filed on September 3, 2013 to Docket No.EPA

- HQ

RCRA

- 2012

- 0028.] supporting the use of the ELG ICR (and other) data in modifying the final CCR risk assessment. Duke Energy supported the work completed by Gradient for USWAG. Gradient conducted a critical review of the new data to ass ess how their proper incorporation into EPA’s risk model would influence the final CCR risk assessment. The Gradient report [Footnote 7 See Attachment A to Comments of USWAG Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities; Notice of Data Availability and Request for Comment; filed on September 3, 2013 to Docket No.EPA

- HQ

- RCRA

- 2012

- 0028.]
confirms that EPA was correct in suggesting that the new information referenced in the NODA substantially reduces the alleged risks reflected in the CCR risk assessment associated with the disposal of CCR in landfills and surface impoundments.
The Gradient report makes clear that a revised CCR risk assessment that properly incorporates the new data referenced in the NODA can no longer support EPA’s proposal to regulate CCR as Subtitle C hazardous waste or to impose a mandatory retrofit requirement for all unlined CCR surface impoundments under the Subtitle D option. This new information in the CCR rulemaking record will provide compelling technical justification for EPA to select the Subtitle D Prime option in the final CCR rule.
Comment Number: EPA

- HQ

- RCRA

- 2013

- 02 09

- 0054

- 15 Organization: Earthjustice Commenter Type: Advocacy Group
Comment: EPA MUST CAREFULLY ASSESS ALL ELG DATA THAT RESULTS IN INCREASED RISK TO HUMAN HEALTH AND THE ENVIRONMENT AND REVISE THE CCR RISK ASSESSMENT ACCORDINGLY.Lack of all safeguards m ust be factored into the final risk assessment

. The significant increase in the number of CCR damage cases demonstrates the validity of the high risk findings of the draft risk assessment, particularly as it relates to arsenic.EPA’s CCR impoundment assessme nt reports revealed poor operation and maintenance practices at a large percentage of CCR impoundments.67

Response to All Previous Comments Without a Response : The Agency acknowledges and appreciates this comment. Th is comment is addressed in Volume X of the CSR document. The reader is also referred to the discussion in Units IV and V of the preamble supporting this rule for a discussion of the Bevill deferral and the subtitle D approach for regulating the disposal of CCR.



### Sectio n 13

– Overall coordination between the ELG and CCR rules No significant comments.



### Section 13.1

– Minimize overlap/avoid duplication/confusion

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0014

- 1 Organization: Pennsylvania Coal Alliance (PCA) Commenter Type: Advocacy Group
Comment: EPA should ensure that the provisions of this proposed rulemaking do not conflict with or contradict EPA’s active rulemaking on coal combustion residuals (CCRs) under EPA’s RCRA docket. (See Docket No. EPA

- HQ

- RCRA

- 2012

- 0028 for co mments submitted by PCA as well as the National Mining Association. See also Docket No. EPA

- HQ

- RCRA

- 2009

- 0640 for our original comments regarding regulation of CCRs.) It appears that both EPA

- HQ

- OW

- 2009

- 0819 and EPA

- HQ

- RCRA

- 2012

- 0028 attempt to manage CCRs in surface impoundments. Conflicting and or contradicting regulations will cause confusion and time delays in implementation of final rules. Response: T he Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.
Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0014

- 5 Organization: Pennsylvania Coal Alliance (PCA) Commenter Type: Advocacy Group
Comment: EPA should take into consideration the cumulative ef fect of its recent proposed and enacted rules on the electric power industry and provide maximum flexibility regarding implementation and implementation timelines to mitigate the collective impact of all the various rulemakings.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0015

- 1 Organization: PPL Services Corporation Commenter Type: Electric Utility Company

Comment : We appreciate EPA’s acknowledgement of the potential overlap between the new ELGs and the proposed Coal Combustion Residuals (CCR) Rule, both of which will regulate68

management of CCRs in surface impoundments. In adopting final ELGs, we urge EPA to avoid duplication, overlap, and conflicting requirements between these two environmental programs

. Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 12 Organization: Southern Company Commen ter Type: Electric Utility Company
Comment: Since the ELG Rule appears to be on course to be finalized before the CCR Rule, resolving any coordination issues between the two rules through “coordinating the design of any final substantive CCR regulatory req uirement” may not be adequate. Southern urges EPA to work through all related issues of these rules before finalizing either rule. Otherwise, it is likely that whatever rule is finalized first will have to be amended once the second rule is finalized. Resolving any inconsistencies through changes in the second rule alone is unlikel y to be completely effective. Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 13 Organization: Southern Comp any Commenter Type: Electric Utility Company
Comment: Southern agrees with EPA that it is legally obligated to integrate all RCRA provisions with other Acts of Congress that grant regulatory authority to the EPA Administrator. According to RCRA § 1006(b)( 1), “[t]he Administrator shall integrate all provisions of this Act for purposes of administration and enforcement and shall avoid duplication, to the maximum extent practicable...” In this case, it is prudent for EPA to consider the requirements proposed in the ELG Rule and align the requirements with the final CCR Rule to avoid any duplication or inconsistencies. EPA must implement complementary final rules that allow for a step

- wise approach for the regulated industry to make proper co mpliance decisions. Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 2 Organization: Southern Compan y Commenter Type: Electric Utility Company
Comment: Southern agrees that the ELG Rule and the CCR Rule must be aligned to minimize the potential for overlapping or contradictory requirements and to facilitate efficient implementation of the rules.

Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.69

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0019

- 3 Organization: American Electr ic Power (AEP) Commenter Type: Electric Utility Company
Comment: EPA is seeking to coordinate any final RCRA Coal Combustion Residuals (CCR) rule with the ELG requirements to minimize the overall complexity of these two regulatory structures and facilitate implementation of engineering, financial and permitting activit ies (78 FR at 34441). AEP not only agrees that EPA should coordinate the two rulemakings, but that it has a statutory obligation to do so under RCRA Section 1006(b) to avoid duplication with the appropriate provisions of other federal statues, including th e ELG rule.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0020

- 11 Organization: El ectric Power Generation Association (EPGA) Commenter Type: Trade Association

Comment: On a more practical note, the cumulative impacts must be considered because the availability of capital to make required improvements to a generation station may be constrained due to compliance with other EPA rulemakings. Additionally, given the scope of retrofits, installation of additional controls and other physical improvements, industry may struggle to find, contract and schedule contractors to make the appropri ate modifications in order to satisfy rule timelines. Taken together, the latest suite of EPA rules has further strained an already constrained industry. It is for this reason that EPA should provide maximum flexibility and consider, to the extent practica ble, coordinating implementation and compliance timelines to mitigate the collective impac t of the various rulemakings.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0020

- 4 Organization: Electric Power Generatio n Association (EPGA) Commenter Type: Trade Association

Comment: The Proposal includes provisions to regulate wastewater streams from coal combustion residuals ("CCRs"). EPA also has an active rulemaking on CCRs which is currently under consideration. See Docket No. EPA

- HQ

- RCRA

- 2013

- 0209. Both the current Proposal and the CCR rulemaking seek to manage the same unit and/or activity

– i.e., the management of CCRs in surface impoundments. It is essential that these two regulations do not conflict with or contr adict each other.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.70

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0021

- 13 Organizati on: The Large Public Power Council Commenter Type: Advocacy Group

Comment: In addition, it is crucial that EPA allow for coordination of both the substantive requirements and the compliance deadlines of the ELG and CCR rules in order to assist facilities in reaching compliance in the most cost and time effective manner possible. Affected facilities will be faced with important economic decisions regarding the method of compliance and must be able to make such decisions with full information of the regulati ons that will affect them. For example, determining whether to close or retrofit a surface impoundment will have serious operational and financial repercussions for a facility. Full information regarding all regulations must be available b efore such a deci sion is made.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0024

- 2 Organization: X cel Energy Commenter Type: Electric Utility Company

Comment: Consolidating all regulatory requirements for impoundments and landfills under the CCR rulemaking process is more transparent and efficient for the regulated community. Splitting the regulatory r equirements between two program authorities, as contemplated in this rulemaking, will create confusion in the regulated community.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0025

- 6 Organization: Southern Company Comment er Type: Electric Utility Company

Comment: Southern Company has multiple surface impoundments managing CCRs and low volume wastewaters. Integrating the timing and potential requirements of the CCR and ELG rules will be a multifaceted decision

- making proces s that must be considered and evaluated on a site by site basis. Because both the ELG and the CCR proposals attempt to regulate certain aspects of surface impoundments, it is important for EPA to avoid imposing conflicting or inconsistent obligations in th e two rules.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.71

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 10 Organization: U tility Waste Activities Group (USWAG) Commenter Type: Advocacy Group

C omment: USWAG’s suggestions for EPA selecting the Subtitle D Prime option and modifying the requirements for surface impoundments in the final CCR rule are fully consistent with EPA’s goal of coordinating “any final RCRA requirements with the ELG requirements, to minimize the overall complexity of these two regulatory structures, and facilitate implementation of engineering, financial and permitting activities.”
Response: The Agency ack nowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0029

- 4 Organization: Midwest Generation, LLC Commenter Type: Electric Utility Company

Comment: Midwest Gen appreciates that EPA outlined other Clean Air Act, Clean Water Act, and Resource Conservation and Recovery Act regulations facing the power sector in the preamble to its ELG proposal. [Footnote 4: See 78 Fed. Reg. at 34440

- 41.] Midwest Gen sup ports EPA’s acknowledgement of these concurrent requirements. All of the rules affecting the power sector overlap with each other, and all of the rules will have some impact on power sector reliability. Midwest Gen encourages EPA to take into account the d irect effect each rule has on available capital and labor resources, with many of the rules individually running into the hundreds of millions of dollars in compliance costs. The impact of these multiple regulations is particularly problematic for merchant producers like Midwest Gen who cannot finance the compliance costs over the same lengths of time allowed to regulated utilities and cannot pass these costs along to rate

- paye rs, as regulated utilities do. Executive Order 13563 directs EPA to “tailor its r egulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations.” [Footnote 5: See 76 Fed. Reg. at 3821.]As EPA m oves forward with the ELGs and the other rules affecting the power sector, Midwest Gen encourages EPA to perform a cumulative cost

- benefit analysis on all of the rules, including reliability standards, affecting the electric power industry. By cumulatively evaluating the costs, the timing, and the impacts on reliability of implementation of the various rules affecting the power sector, EPA can reduce compliance costs where there are synergies, streamline the regulatory process, ensure system reliability, an d provide greater certainty for the regulated industry.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.72

Comment Number: EP A

- HQ

- RCRA

- 2013

- 0209

- 0029

- 6 Organization: Midwest Generation, LLC Commenter Type: Electric Utility Company

Comment: Midwest Gen applauds EPA’s intention to better align the requirements of the proposed ELGs and the CCR rules. EPA should tailor its regulations to focus on the areas of primary concern, while coordinating overlapping rule requirements to prevent unnecessary duplica tion.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0029

- 8 Organization: Midwest Generation, LLC Commenter Type: Electric Utility Company

Comment: Midwest Gen strongly encourages EP A to coordinate its rulemakings on CCRs between the RCRA and CWA dockets and avoid any overlapping or inconsistent requirements.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0030

- 1 Organization: Santee Cooper Commenter Type: Electric Utility Company

Comment: Santee Cooper agrees with EPA's desire to avoid conflicts between the ELG rulemaking and the CCR rulemaking. Of particular note, both the proposed CCR and these proposed regulations will regulate surface impoundments . This of course will lead to conflicting and overlapping regulations, and will likely have unintended consequences.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationshi p between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0030

- 3 Organization: Santee Cooper Commenter Type: Electric Utility Company

Comment: The ELGs must be coordinated with the CCR rule because both involve the same waste streams (fly ash, bottom ash, and FGD wastes). Coordinated requirements are essential to assure compliance in the most efficient and cost

- effective manner, Only after both r ules are finalized can a utility determine and begin to plan what plant changes are needed to comply with both rules. Careful coordination of the various implementation dates of bot h regulations will be crucial. One suggestion that would help with the coor dination concerns would involve separating the scope of the two regulations. Regulating disposal under the CCR rule and limiting the ELGs to treatment of the waste73

streams, which would include the regulation of surface impoundments, would leave only the ti ming issues to be coordinated.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0033

- 2 Organization: Kansas City Board of Public Utilities (BPU) Commenter Type: Electric Utility Company

Comment: While BPU commends EPA for recognizing the interaction between the instant ELG rules and the rules for CCR before sett ing rules in either case, there still exists a concern that actions taken in this case will, for all practical purposes, dictate what the result will be in the CCR case. See 78 FR at 34441

- 42 (“EPA is considering how these predictions [about ELG] might aff ect any specific technical requirements under RCRA that could be applicable to CCR surface impoundments”).
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0033

- 4 Organization: Kansas City Board of Public Utilities (BPU) Commenter Type: Electric Utility Company

Comment: To this end, care should be taken to avoid pre

- ordaining a result in one proceeding by what action is taken in the other proceeding. For example, leachate requirements established by the ELG proceeding may dictate that only a certain type of liner could b e used for landfills under the CCR rules regardless of what CCR comments say about the efficacy (or lack thereof) of using that type of liner solely in the context of the statutory and regulatory context of the CCR rulemaking. Likewise, EPA’s anticipated r esolution of certain matters in the CCR proceeding should not be determinative of the rules applied to related ELG matters. In short, EPA should not reach a conclusion in the one proceeding that indirectly and inexorably leads to a result that EPA would ot herwise be unable to effectuate in the other proceeding. BPU urges the Agency to keep that principle in the forefront of its thinking about how ELG and CCR regulations interact with each other

. Response: The Agency acknowledges and appreciates this comment . The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0038

- 15 Organization: Edison Electric Institute (EEI) Commenter Type: Trade Association

Comment: EPA proposes three “anti

- circumvention” requirements. These would require facilities to (i) demonstrate compliance before using a wastestream in another plant process or mixing a74

wastestream with another wastestream (proposed 423.13(l)(3)); (ii) not move wastestreams subject to zero discharge to another process operation with less stringent limits (proposed 423.13(n)); and (iii) use “sufficiently sensitive” analytical methods. These proposed anti

circumvention provisions should be eliminated or at a minimu m revised to address negative consequences for reuse strat egies and sampling methodology. EEI recommends that EPA delete these three provisions from the ELG rule. As discussed below, they either duplicate or conflict with already

- existing regulations. They are contrary to EPA’s traditional goal of encouraging centralized waste treatment. And they are likely to interfere with the important goal of conserving water. For example, some power stations use bottom ash transport water as makeup water for the scrubb er. The bottom ash transport water is sent to a settling pond, then routed to the scrubber as makeup. Requiring internal limits may discourage this process.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0038

- 8 Organization: Edison Electric Institute (EEI) Commenter Type: Trade Association

Comment: consistent with the August 2013 public meeting, EPA should explicitly acknowledge that CWA new source performance standards (NSPS) are not triggered by a new cell or new landfill built to manage CCR wastestreams displaced as a result of a facility’s compli ance with a new ELG requirement. As EPA staff noted on the webcast, modification of an existing generating unit and its affiliated disposal facilities is an “exist ing source,” not a new source. EEI believes that any changes in the combustion residual leach ate category contrary to EPA’s proposed options and these clarifications will not help the environment. Moreover, regulating leachate from CCR impoundments under the ELG rules threatens to duplicate or conflict with regulatory requirements that will be set under the coming CCR rule.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0039

- 10 Organization: Dynegy Inc. Commenter Type: Electric Utility Company

Comment: It is critically important for EPA to coordinate the timing and implementation of the final rule ELG requirements with the final rule CCR requirements to provide generating plants a reasonable and certain timeline for implementation that allows for coordinated planning, as well as consideration of potential electric reliability concerns. Given the overlap of the ELG and CCR proposed rules in terms of requiring significant environmen tal compliance investment decisions at generating plants and the long lead times involved in implementing such major plant modifications, it is imperative that (i) generating plants are not forced to make compliance planning decisions based on one rule wit hout understanding the75

implications of the other rule on those decisions, and (ii) adequate time is allowed to make and implement those compliance planning decisions.
Response: The Agency acknowledges and appreciates this comment. The commenter is referre d to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0039

- 6 Organization: Dynegy Inc. Commenter Type: Electric Utility Company

Comment: EPA proposes to regulate combustion residual leachate as a separate wastestream. Currently, combustion residual leachate is classified as “low volume waste”. The Proposed ELG Rule would define “combustion residual leachate” to “include liquid that has pass ed through the containment structure (e.g., bottom, dikes, berms of a surface impoundment [and] also includes the terms seepage, ... leak, and leakage[.]”
The final ELG rule should not address seepage or leakage from a surface impoundment to groundwater; ins tead, such issues should be addressed in the CCR rulemaking and b y applicable state regulation.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA ru le and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0041

- 1 Organization: Certain Teed Corporation Commenter Type: Beneficial User

Comment: . CERTAINTEED SUPPORTS EPA'S INTENTION TO REVIEW THE PROPOSED ELG RULE AND PROPOSED CCR RULE TOGETHER

. Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0045

- 2 Organization: Big Rivers Elec tric Corporation (BREC) Commenter Type: Electric Utility Company

Comment: ELGs should avoid duplicative regulatory involvement with the Coal Co mbustion Residuals (CCR) rule. In the ultimate adoption of final ELGs, we request that EPA avoid duplicative requirements across both the water and waste realms contain ed within these two directives.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule an d the ELG Rule.76

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0052

- 1 Organization: Duke Energy Commenter Type: Electric Utility Company

Comment: Both the ELG Proposal and CCR Proposal were developed independently by the Office of Water Management and the Office of RCRA respectively, without coordination or consideration in regards to the combined economic and regulatory impact on Duke Energy and th e electric utility industry. EPA has a statutory obligation under RCRA section 1006(b) to integrate the provisions of RCRA (the CCR rule) to avoid duplication with the appropriate provisions of other federal statutes, including the CWA (the ELG rule). The Executive Order 13563, titled “Improving Regulation and Regulatory Review” signed by the President on Jan. 18, 2011 requires EPA to recognize that the electric utility industry faces a significant number of regulatory requirements, some of which may be red undant, inconsistent, or overlapping. It directs EPA to coordinate the development of any proposed rules to simplify and reduce duplicative requirements. It is important that EPA fulfill this directive and minimize any overlapping requirements and the over all complexity of the regulatory structure of the respective rules under which a facility must operate. This is the perfect circumstance for coordination where there are two rules regulating the same substances (CCR) in the same disposal units (surface imp oundments).
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0052

- 8 Organization: Duk e Energy Commenter Type: Electric Utility Company

Comment: Utilities need time to coordinate the im plementation of both Proposals In addition to coordination on substantive issues, EPA also requested comment on how to best coordinate “the timing and implementation of the final rule requirements to provide facilities with a reasonable timeline for implementation that allows for coordinated planning and protects electricity reliability for consumers.” EPA’s goal is consistent with its statutory requirem ents. The implementation dates for each rule should not require facilities to make decisions without understanding the implications that such decisions would have for meeting any requirements for the other rule. The Agency must also consider the time a fac ility needs to determine whether any changes to its operations are needed to comply with the ELG Proposal, and if so, what those modifications might be before the facility would be required to close or retrofit a surface impoundment pursuant to the CCR pro posal.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0058

- 1 Organization: Missouri Joint Municipal Electric Utility Commission (MPUA) Commenter Type: Electric Utility Company77

Comment: The electric generation industry, including public power or community

- owned utilities, face a host of rigorous new requirements including several Clean Air Act (CAA) regulations, the Coal Combustion Residuals rule (CCR), and the Clean Water Act (CWA) § 316(b) intake aquatic protection fine structure rule (expected by November 2013) and the CO2 regulations for new and existing power plants. The Envi ronmental Protection Agency (EPA) needs to evaluate the cumulative impact of these regulations as part of its assessment of the proposed effluent guidelines rule. The Office of Management and Budget (OMB) guidance and Executive Order 13563 require EPA to c onsider the cumulative effects of regulations and seek to reduce overlapping and inconsistent requirements.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0059

- 2 Organization: Public Service Company of New Hampshire Commenter Type: Electric Utility Company

Comment: Contaminated leachate collected on a site for treatment or disposal shoul d beconsidered a low volume waste. Yet, all signs point to EPA regulating collection systemsof this kind for landfills pursuant to the upcoming CCR rule. See 75 Fed. Reg. 35,239(June 21, 2010). PSNH therefore believes that regulation of this waste stream i s best left for that rulemaking to avoid the possibility of duplicati ve or inconsistent regulation.
Response: The rule has also been designed to provide electric utilities and independent power producers generating CCR with a practical approach for implementation of the requirements and has established implementation timelines that take into account, among other t hings, other upcoming regulatory actions affecting electric utilities. Specifically, EPA developed implementation time frames that would ensure that owner or operators of CCR units would not be required to make decisions about those CCR units without firs t understanding the implications that such decisions would have for meeting the requirements of all applicable EPA rules . See unit VIII for implementation timeframes for minimum national criteria and coordination with the ELG rule.
Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0054

- 17 Organization: Earthjustice Commenter Type: Advocacy Group

Comment: THE ELG RULE DOES NOT ELIMINATE THE NEED FOR STRINGENT CCR DISPOSAL RULES UNDER RCRA.

THE AGENCY’S WEAK OPTIONS IN THE ELG RULE WILL GUARANTEE CONTINUED RELEASE OF HAZARDOUS SUBSTANCES FROM LEGACY WASTEWATER, EXISTING SURFACE IMPOUNDMENTS AND NEW SURFACE IMPOUNDMENTS.78

UNDER ALL OPTIONS, RCRA CLOSURE AND POST

- CLOSURE STANDARDS FOR CCR SURFACE IMPOUNDMENTS MUST BE REQUIRED TO ENSURE PROTECTION OF HUMAN HEATH AND THE EN VIRONMENT.

1. Federal regulations are necessary because state laws fail to require safe closure and post

closure of CCR impoundments. 2. The magnitude of the risk requires immediate EPA action.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.


### Section 13.2

– Comingling of wastewaters/anti

- circumvention

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0013

- 2 Organization: Florida Electric Power Coordinating Group, Inc. (FCG) Commenter Type: Electric Utility Company
Comment: Interference with Water Reuse Objectives

As part of what EPA characterized as “anti

- circumvention” measures, the proposed rule revisions would impose compliance monitoring for several individual wastestreams prior to comingling with other wastestreams for reuse within the steam electric generating process. 78 Fed. Reg. 34465. These requirements would apply to FGD wastewater as well as the zero discharge limits for ash transport water and FGMC wastewater. EPA requested input as to whether and to what extent these anti

- circumvention provisions “may discourage water re

- use.” Fed. Reg. 34466. The FCG submits that EPA’s proposed anti

- circumvention compliance monitoring requirements would discourage wastewater reuse, and therefore would create significant problems for the State of Florida and the state’s regulated community. Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 23 Organization: Southern Company Commenter Type: Electric Utility Company

Comment: As part of what it has characterized as “anti

- circumvention” measures, EPA’s proposed rule revisions would require compliance mon itoring for several wastestreams prior to reuse or other comingling with process wastewater. This requirement would apply to FGD wastewater as well as the zero discharge limits for ash transport water and FGMC wastewater. EPA specifically requested comment s on whether and to what extent these anti

- circumvention provisions “may discourage water re

- use.” The proposed anti

- circumvention provisions would discourage water reuse, and therefore would create significant problems for the State of Florida and the sta te’s regulated community.79

EPA’s proposed anti

- circumvention language appears to be based on a stringent application of the existing internal wastestream rule, as set forth at 40 CFR §122.45(h). EPA’s internal wastestream rule was first promulgated several decades ago, and its continued environmental policy value has been surpassed by a Florida regulatory paradigm that places a considerable premium on maximizing reuse of wastewater. Reuse as implemented by Gulf Power Company and other Florida steam electric generating systems is environmentally beneficial both in terms of resource conservation and pollution management. EPA needs to ensure that its proposal to micro

- manage individual wastestreams does not thwart the systematic and thoughtful policy objectives associated with reusing plant wastewaters.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the dispo sal of CCR in landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 4 Organization: Southern Company Commenter Type: Electric Utility Company

Comment: EPA proposes “anti

- circumvention” provisions that will either duplicate or conflict with existing or near

- final EPA regulations that also address the same issues (, mixing of wastestreams, internal limits, and analytical methods with sufficiently sensitive detection limits). These provisions would also discourage central treatment and the recycling, reuse, and conservation of water.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble di scussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid waste management plans.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0018

- 3 Organization: JEA Commenter Type: Electric Utility Company

Comment: Proposed “Anti

- circumvention” provisions are impractical and result in overly stringent standards

- To demonstrate compliance to the new standards, EPA proposes internal monitoring obligations that require sources to demonstrate compliance internally, prior to the mixing of a waste stream with other streams. JEA believes this provision is overly restrictive and could negatively impact water reuse. A waste stream, in the context of this rule, should be defined to be a stream leaving the plant or no longer bei ng used within the plant for a beneficial use. It is imperative that EPA focus on the important issue of minimizing the release of pollutants, while also reducing the burdens associated with monitoring and compliance that do not efficiently advance health and environmental goals. EPA must clarify in the rule that the ELG requirements do not apply to waste streams that are not discharged to waters of the United States. Proposed provisions requiring upstream monitoring are not practical at JEA because of80

the significant expense that would be required to completely reconfigure their existing plumbing and operations. The final rule should provide facilities with existing combined wastewater treatment with an alternative option for setting its effluent discharge limits.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0019

- 10 Organization: American Electric Power (AEP) Commenter Type: Electric Utility Company

Comment: EPA’s proposed anti

- circumvention provisions would discourage water reuse and should be revised to allow water reuse, provided all applicable water quality standards are met. EPA has proposed anti

- circumvention provisions that would 1) require that compli ance with new effluent limits applicable to a particular waste stream be demonstrated prior to use in another plant process that results in a discharge or mixing with other waste steams; 2) would prevent the circumvention of an effluent subject to a zero d ischarge limit to a process with discharge limits that are less stringent than intended by the ELGs; and 3) require the use of EPA approved analytical methods that are sufficiently sensitive to provide reliable quantified results at levels necessary to dem onstrate compliance with applicable effluent limits (78 FR at 34465

- 34466). These anti

- circumvention provisions, particularly the first and second provisions, would limit opportunities for water reuse. For example, bottom ash transport water is used at so me power plants for scrubber make

- up water, fly ash conditioning or other plant services. However, the second proposed anti

- circumvention provision, along with the proposed zero discharge limit for bottom ash transport water pollutants, would prevent the u se of this water in any power plant process. Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the dis posal of CCR in landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0020

- 1 Organization: Electric Power Generation Association (EPGA) Commenter Type: Trade Association

Comment: EPA’S PROPOSED ANTI

- CIRCUMVENTION PROVISIONS ARE ARBITR ARY, CAPRICIOUS, AND AN ABUSE OF DISCRETION, AND WILL DISCOURAGE THE RECYCLE AND REUSE OF WASTEWATERS EPA has taken the unprecedented step of proposing three stringent "anti

- circumvention" provisions in the Proposal. As summarized by EPA, these provisions would:
a. Require that compliance with the new limits applicable to a particular wastestream (e.g., FGD,81

gasification wastewater, and leachate) be demonstrated prior to use of the wastewater in another plant process that results in surface water discharge or mixing the treated wastestreams with other wastestreams.
b. Establish requirements intended to prevent steam electric power plants from circumventing the effluent limits and standards by moving effluent produced by a process operation for which there is a zero discharge effluent limit/standard to another process operation for discharge under less st ringent requirements than intended by the steam electric guidelines.
c. Expressly require permittees to use analytical EPA

- approved methods that are sufficiently sensitive to provide reliable quantified results at levels necessary to demonstrate complian ce with the effluent limits proposed by the rulemaking when such methods are available.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for pr omulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0023

- 6 Organization: Ameren Missouri Commenter Type: Electric Utility

Comment: In a discussion of "anti

- circumvention" measures in the Preamble, EPA proposes requirements for internal monitoring of a number of categorical waste streams within a plant instead of at the outfall where they discharge to waters of the US. The proposed EL Gs adds this requirement for "monitoring prior to use or comingling" specifically in BAT standards for FGD wastewater and gasification wastewaters (per § 423. 13(g) and (h)) and in NSPS for these two wastewaters plus leachate (per § 423.15(b)(13), (15) and (16)). While restricted uses of such anti

- circumvention criteria are not excessively burdensome for these few waste streams, we are concerned that there could be unintended and significant impacts if such criteria were broadly applied.

As a result Ameren Missouri urges EPA not to expand these or similar anti

- circumvention measures to any other waste streams.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’ s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0038

- 15 Organization: Edison Electric Institute (EEI) Commenter Type: Electric Utility Company

Comment: EPA proposes three “anti

- circumvention” requirements. These would require facilities to (i) demonstrate compliance before using a wastestream in another plant process or mixing a82

wastestream with another wastestream (proposed 423.13(l)(3)); (ii) n ot move wastestreams subject to zero discharge to another process operation with less stringent limits (proposed 423.13(n)); and (iii) use “sufficiently sensitive” analytical methods. These proposed anti

circumvention provisions should be eliminated or at a minimum revised to address negative consequences for reuse strategies and sampling methodology.
EEI recommends that EPA delete these three provisions from the ELG rule. As discussed below, they either duplicate or conflict with already

- existing regulati ons. They are contrary to EPA’s traditional goal of encouraging centralized waste treatment. And they are likely to interfere with the important goal of conserving water. For example, some power stations use bottom ash transport water as makeup water for t he scrubber. The bottom ash transport water is sent to a settling pond, then routed to the scrubber as makeup. Requiring internal limits may discourage this process.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0039

- 7 Organization: Dynegy Inc. (Dynegy) Commenter Type: Electric Utility Company

Comment: EPA’s proposed anti

- circumvention provision would, in part, require that compliance with new effluent limits applicable to a particular wastestream (e.g., FGD wastewater) be demonstrated prior to mixing the treated wastestream with other wastestreams. 78 Fed. Reg. at 34,465. Accordingly, EPA’s proposal would require internal compliance monitoring points for specific wastestreams, 78 Fed. Reg. at 34,523, with certain exceptions. For example, EPA would allow F GD wastewater to be mixed with combustion residual leachate prior to the compliance monitoring point. See, e.g., proposed § 423.13(g)(3). In addition, as stated in EPA’s preamble, 78 Fed. Reg. at 34,523, and the TDD (p. 14

- 15), internal monitoring points w ould not be required “where BAT limitations are equivalent to BPT limitations[.]”
EPA should clarify in the final ELG rule or the final rule preamble that nonchemical metal cleaning wash waters and bottom ash transport water may be comingled prior to comp liance monitoring at the outfall. Many power plants discharge numerous wastewaters (except once

through cooling waters) to ash ponds. This includes low

- volume wastewaters (e.g., floor drainage wastewaters), bottom ash transport water, and nonchemical metal cleaning wash waters. Dynegy’s coal

- fired power stations discharge their nonchemical metal cleaning wash waters to their ash pond systems in accordance with and as approved by their NPDES permits. That practice should be allowed to continue. Generating pl ants with cooling ponds may recycle bottom ash transport water to those ponds. Under Options 4 and 5 or EPA preferred Option 4a (for units above 400 MW), zero discharge of bottom ash transport water would be required, eliminating a plant’s ability to re

- us e the bottom ash transport water if the cooling pond potentially discharged to a water of the United States (i.e., emergency overflow). This would have the perverse effect of requiring a plant to draw more83

water from nearby rivers, aquifers or municipal su pplies during dry summer periods, essentially reducing or eliminating a plant’s efforts to conserve water use for cooling.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussio n for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0043

- 2 Organization: Gulf Power Company Commenter Type: Electric Utility Company

Comment: As part of what it has characterized as “anti

- circumvention” measures, EPA’s proposed rule revisions would require compliance monitoring for several wastestreams prior to reuse or other comingling with process wastewater. 78 Fed. Reg. 34465. This requirement would apply to FGD wastewater as well as the zero discharge limits for ash transport water and FGMC wastewater. EPA specifically requested comments on whether and what extent these anticircumvention provisions “may discourage water re

- use.” 78 Fed. Reg. 34466. The proposed anti

- circumvention provisions would discourage water reuse, and therefore create significant problems for the State of Florida and its regulated community. EPA’s proposed anti

- circumvention language appears to be based on a st ringent application of the existing internal wastestream rule, as set forth at 40 C.F.R. §122.45(h). EPA’s internal wastestream rule was first promulgated several decades ago, and its continued environmental policy value has been overtaken by a Florida reg ulatory paradigm that places a considerable premium on maximizing reuse of wastewater. Such reuse, as implemented by Gulf Power Company and other Florida steam electric generating systems, is environmentally beneficial both in terms of resource conservatio n and pollution management. Gulf Power Company requests that EPA consider whether its proposal to micro

- manage individual steam electric generating plant wastestreams under the Part 423 revisions thwarts the systematic and thoughtful Florida policy objecti ves associated with reusing plant wastewaters.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the d isposal of CCR in landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0055

- 5 Organization: ARIPPA Commenter Type: Trade Association

Comment: EPA is imposing significant costs for facilities to redesign and implement new water management systems to prevent commingling which will result in significant expenditures for new treatment technology and operations further impacting and increasing cost o f electricity. Piping modifications, pumps, wet wells, storage tanks, separate sampling points and other modifications to appurtenances, and potential changes to plant balance of water will incur costs.84

New and separate treatment systems for separated wast e streams will also result in significant expenditures.In addition, EPA’s concept of using an effluent limits and loading limits appears to be a new approach. In the past, EPA had established effluent limits and did not couple that to loading limits. The c oncept of loading is tied to the amount of water to be treated. This is a problematic issue from the perspective that any water contributions that is highly variable will result in wide swings in pollutant loading. Determining the volume of water that will be treated will be problematic; especially if it is tied to precipitation events (of an unknown duration) making if difficult to insure proposer treatment; especially with relationship to CCR management.Accordingly, commingling of waters from faculties ut ilizing dry ash management systems should be allowed.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Volume XII of the CSR document for a full discussion on the cost benefits of this rule. The commenter is als o referred for his edification to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0063

- 2 Organization: San Miguel Electric Cooperative, Inc. Commenter Type: Electric Utility Company

Comment: San Miguel believes mixing of various water streams should be encouraged in order to recycle and conserve water. San Miguel mixes water streams from our c ooling tower blowdown, wet bottom ash closed loop system and wet flue gas scrubber in order to recycle water to maintain a zero liquid discharge. Without the ability to mix the various water streams a zero liquid discharge facility would be nearly impossib le. It appears the anti

- circumvention provisions proposed would discourage conservation and recycling of water.
Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s decision to regulate CCR under subtitle D of RCRA. Th e commenter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.


### Section 13.3

– Alternative or suggested approaches to coordinating rules

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0027

- 2 Organization: Kentucky Department for Environmental Protection Commenter Type: State Government
Comment: The Commonwealth, in its response to comments for the August 2, 2013 Federal Register regarding disposal, suggested some version of the tiered approach based on sev eral factors for determining the time to complete closure of the largest category of surface impoundments. These factors might include, size, whether “clean

- closed” or “capped” with waste

- in

- place, site geology, volume of ash, depth to groundwater, time to dewater, and volume of material for the final cover. These are factors that would be considered in the approach using85

the Environmental Performance Standards but would have specific tim es tied to the considerations. The design, permitting and construction could generally take about two

- three years for the smaller ponds and five years or more for the larger category of ponds. Regardless, adequate time must be allowed for drainage of largest ponds, such as a 576

- acre impoundment owned by AEP. Construction of an overfill on undrained soils could lead to continued loss of soil water and loss of buoyancy support leading to global stability failure. Design engineers and state regulators must have the flexibility as allowed in its current special waste rules for ad ditional time when such technical issues arise.H.R. 2218 allows ten years before an unlined surface impoundment must perform groundwater corrective action. See Section (c)(4)(A)(i)(II) of the bill. The Commonwealth also agrees with this approach. Response : The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. T he commenter is also referred to Unit IX of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid waste management plans.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0035

- 1 Organization: Minnesota Power (ALLETE) Commenter Type: Electric Utility Company

Comment: ELG and CCR Rules, Complimentary Regulation. Minnesota Power supports EPA’s intention to develop the final ELG rule and the pending CCR rules so they complement one

another and enhance the efficiency of the final regulations (FR page 34441). For example, the ELG and CCR final rules should be consistent: a. allowing for the ongoing use of impoundments for bottom ash management under either the BPT outcome or the closed loop outcome of the proposed ELG regulat ion. b. allowing for the ongoing use of impoundments for FGD wastewaters under any proposed ELG outcome. c. allowing permit writer discretion for imposing complimentary and site condition appropriate effective dates for regulation as well as the timing and closure requirements for impoundments.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

Co mment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0052

- 2 Organization: Duke Energy Commenter Type: Electric Utility Company

Comment: State

- administered permit programs are the best option for harmonizing proposals

In order for there to be effective coordination between the final CCR and ELG rules, the same regulatory agency must have authority over both regulatory programs for implementation and enforcement of the two new sets of rules. The final CCR rule must include a mechanism for qualified state solid waste regulato ry agencies, which have a CCR permit program that meets or86

exceeds the federal standards and criteria, to directly administer the CCR Subtitle D regulations. The Subtitle D option in the proposed CCR rule would be self

- implementing, with enforcement of the regulations achieved through RCRA citizen suit provisions. Duke Energy supports state

approved CCR Subtitle D permits and state

- approved NPDES permits to provide regulatory certainty for compliance.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments



### Se ction 13.4

– Subtitle D Prime option role in coordination

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0015

- 3 Organization: PPL Services Corporation Commenter Type: Electric Utility Company
Comment: We also urge EPA to prevent the premature closure of CCR surface impoundments and to enable such impoundments to continue to manage and receive specified wastewaters as contemplated under the ELG Proposal by:1. selecting the Subtitle D Prime option in the final CCR rule to enable CCR impoundments, which meet applicable groundwater monitoring and corrective action requirements, to remain operational and;2. modifying the proposed Subtitle D Prime rule to ensure application of only specified location restrictions to existing CCR surface impoundments; and3. Revising the pro posed Subtitle D rule to eliminate the requirement that CCR units automatically commence closure upon the cessation of the receipt of CCRs. Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the p reamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 15 Organization: Southern Company Commenter Type: Electric Utility Company

Comment: As already discussed, Southern supports the Subtitle D prime option with the same modifications for the CCR Rule. But the CCR Rule contains two other options: the Subtitle D and Subtitle C options. Neither of those options is a good fit w ith the proposed ELG Rule. Under the Subtitle D option, EPA proposed that unlined ponds must be retrofitted with a liner or cease receiving CCRs and close within five years of the effective date of the final rule. All ponds would essentially be closed with in seven years of the effective date of a Subtitle C regulatory option.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments . The commenter87

is also referred to Unit VI for a discussion of the technical standards applicable to CCR landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 16 Organization: Southern Company Commenter Type: Electric Utility Company
Comment: If EPA were to promulgate a Subtitle C CCR final rule instead of a Subtitle D or D prime rule, then power plants would be required to eliminate all wet surface impoundments within seven years of the state adoption of the final rule because of application of Universal Treatment Standards (UTS)[Footnote 50: 40 C.F.R. § 268.48.]. This requirement would make it impossible for facilities to continue di scharging legacy wastewaters

– or even to continue storing legacy wastewaters that have already been sent to a surface impoundment. It also would make it impossible to continue sending low volume wastewaters to surface impoundments. For these reasons, a Su btitle C CCR Rule would be wholly incompatible with the ELG Rule. Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtit le D rule for the disposal of CCR in landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 19 Organization: Southern Company Commenter Type: Electric Utility Company
Comment: A modified Subtitle D Prime approach[Footnote 44: The Subtitle “D Prime” Option contains the same elements of the primary “Subtitle D” Option with the exception that Subtitle “D Prime” “would not require the closure or installation of composite liners in existing surface impoundments; rather, these impoundments could continue to operate for the remainder of their useful life.” 75 Fed. Reg. at 35,210 col. 2.] properly developed with additional state regulatory oversight provisions would be fully protective of human health and the environment, with the least duplication or preclusion of ongoing state and private efforts to manage CCRs. All CCR facilities would be subject to groundwater monitoring, and new CCR facilities and certain expansions would be subject to Subtitle D standards comparable to those that apply to Subtitle D facilities today. Existing facilities would be required to demonstrate that they are performing safely and effectively through a combination of measures, including groundwater monitoring . In comparison to both the Subtitle D and Subtitle C proposal, a modified Subtitle D Prime approach would allow for more flexible, practical, and effective management of CCR surface impoundments (including alternative corrective action, closure, and post

- closure care options) for the remainder of their useful lives. Subtitle D Prime has the additional benefit of being the most compatible with the ELG Rule. Response : The Agency acknowledges and appreciates the comment. The commenter is referred to Units I V and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid waste management plans.88

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0024

- 3 Organization: Xcel Energy Commenter Type: Electric Utility Company

Comment: Critical for EPA is to effectively align and integrate the final CCR rule with the final ELG rule is the selection of the Subtitle D Prime option in the final CCR rule. This is because of the options presented within the proposed CCR rule, only the Subtitle D Prime option provides for the possibility of surfac e impoundments to remain in operation. A CCR rule that results in the mandatory and premature closure of impoundments that are otherwise operating in a protective manner would be inconsistent with the contemplated future role of impoundments in the ELG rul e. We agree that surface impoundment integrity and inspection requirements modeled on the standards for coal slurry impoundments regulated by MSHA is a good starting point for developing comparable standards for CCR impoundments. However, these standards s hould be developed as part of a Single, comprehensive regulatory program under RCRA as proposed in the CCR rulemaking rather than through conditions in NPDES permits. Comment: Since the proposed ELGs do not contemplate any of the waste streams as generatin g a hazardous waste as defined under RCRA, the only option suitable for CCR regulation are either the Subtitle D or Subtitle D Prime options listed in the proposed CCR rules published by EPA. However, the Subtitle D option is not tenable given that waste w ater impoundments sometimes serve multiple purposes. Therefore, it is imperative that the CCR rule not compel the premature closure of impoundments meeting applicable groundwater monitoring or corrective action requirements. Only the Subtitle D Prime optio n offers this possibility. Xcel Energy strongly supports the Subtitle D Prime option and urges EPA to select the Subtitle D Prime option for the CCR rulemaking process.
Response: The Agency acknowledges and appreciates the comment. The commenter is referr ed to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments . The commenter is also referred to Unit VI for a discussion of the technical sta ndards applicable to CCR landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0025

- 2 Organization: Southern Company Commenter Type: Electric Utility Company
Comment: EPA’s selection of the Subtitle D Prime option presented in the 2010 CCR proposal. Utilities should be allowed to continue operating surface impoundments to manage both CCRs and wastewaters, subject to any applicable groundwater monitoring standards and corrective action, if necessary. The Subtitle D Prime option complemen ts the intent of the ELG proposal, which also should allow the continued management of legacy wastewaters and other regulated waste streams. Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this89

subtitle D rule for the disposal of CCR in landfills and surface impoundments . The commenter is also referred to Unit VI for a discussion of the technical standards applicable to CCR lan dfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0025

- 9 Organization: Southern Company Commenter Type: Electric Utility Company

Comment: EPA’s Subtitle D Prime approach from the 2010 proposed CCR rule lends itself to greater flexibil ity and coordination with the ELG proposal, while affording protection of human health and the environment. The Subtitle D Prime option would allow existing surface impoundments to continue managing CCRs and low volume wastewaters while implementing ground water monitoring and corrective action, if necessary. The only reasonable option in light of EPA’s obligation to harmonize the CCR and ELG rules is to promulgate Subtitle D Prime or a modified Subtitle D CCR rule to allow for the continued use of the surfa ce impoundments.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills an d surface impoundments . The commenter is also referred to Unit VI for a discussion of the technical standards applicable to CCR landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 1 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Advocacy Group
Comment: USWAG believes that harmonization of the two rules requires: Selection of the Subtitle D Prime option in the final CCR rule to enable CCR impoundments, that meet applicable groundwater monitoring and c orrective action requirements, to remain operational and to continue to manage and receive specified wastewaters as contemplated under the ELG Proposal;

- Modification of the proposed Subtitle D Prime Rule to ensure application of only specified location r estrictions to existing CCR surface impoundments to prevent the premature closure of such impoundments and to enable the impoundments to remain operational and to continue to manage and receive specified wastewaters as contemplated under the ELG Proposal;

- Modification of the proposed Subtitle D rule to eliminate the requirement that CCR units automatically commence closure upon the cessation of the receipt of CCR in order to prevent the premature closure of such units under the final CCR rule.
Response: T he Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments . The commenter is also referred to Unit VI for a discussion of the technical standards applicable to CCR landfills and surface impoundments.90

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 11 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Typ e: Advocacy Group

Comment: USWAG believes that EPA’s selection of the Subtitle D Prime option in the final CCR rule is critical for EPA to effectively align and integrate the final CCR with the final ELG rule. This is because only the Subtitle D Prime opti on provides for the realistic possibility of surface impoundments continuing to operate to manage CCR, provided that applicable groundwater monitoring and corrective action requirements are met. The Subtitle D Prime option is necessary to align the final C CR rule with the structure of the ELG Proposal because the ELG rulemaking contemplates a future role for impoundments for purposes of managing legacy CCR transport waters, as well as serving as part of the ELG treatment train for other specified wastewater s. Indeed, any CCR rule that results in the mandatory and premature closure of impoundments that are otherwise operating in a protective manner would be inconsistent with the contemplated future role of impoundments in the ELG rule. Failure to align the ru les in this manner will result in serious compliance concerns and create an unnecessarily complex regulatory structure, both of which are inconsistent with the directions in RCRA Section 1006(b).
Response: The Agency acknowledges and appreciates the commen t. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments . The commenter is also referred to Unit VI for a disc ussion of the technical standards applicable to CCR landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 14 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Advocacy Group

Comment: Given the continued role of wastewater impoundment management under the ELG Proposal, it is absolutely critical that the final CCR rule not compel the premature closure of CCR surface impoundments that are meeting applicable groundwater monitoring and/or corrective action requirements. Only the Subtitle D Prime option offers this possibility under the CCR Proposal. Given that CCR impoundments can continue to operate in a manner fully protective of human health and the environment under this option, there i s no reason for EPA not to pursue this choice and ensure the effective alignment and coordination between the two rules. ]
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments . The commenter is also referred to Unit VI for a discussion of the technical standards applicable to CCR landfills and surface impoundments.91

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 24 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Advocacy Group

Comment: USWAG read with interest EPA’s statement in the preamble to the ELG Proposal that development of the final ELG rules, combined with the anticipated reduction in the risk assessment for CCR, could have broad implications for the final CCR rule. Specifically, EPA stated that: If this proves to be the case [i.e., a reduced risk in the CCR risk assessmen t], EPA’s current thinking is that, the revised risks, coupled with the ELG requirements that the Agency may promulgate, and the increased Federal oversight such requirements could achieve, could provide strong support for a conclusion that regulation of C CR disposal under RCRA Subtitle D would be adequate. 78 Fed. Reg. at 34442. USWAG obviously supports this statement and believes that the reduced risk assessment results for CCR alone will be sufficient for EPA to select the Subtitle D Prime option. We als o must note, however, as made clear in our initial comments, that the Subtitle D option is the only legally viable option available to EPA in the final CCR rule. See USWAG CCR Comment at 41. Therefore, the real choice for EPA is not choosing between the Su btitle C and Subtitle D options, but rather which Subtitle D option to select. As explained above, to ensure consistency and integration between the final CCR and ELG rules, while continuing to protect human health and the environment, the Agency should

se lect the Subtitle D Prime option.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CC R in landfills and surface impoundments . The commenter is also referred to Unit VI for a discussion of the technical standards applicable to CCR landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0028

- 3 Organization: Tri

- State Gene ration and Transmission Association, Inc. (Tri

- State) Commenter Type: Electric Utility Company

Comment: The RCRA Subtitle D Prime option is the most appropriate option among t hose proposed in the CCR rule.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments . T he commenter is also referred to Unit VI for a discussion of the technical standards applicable to CCR landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0040

- 7 Organization: MidAmerican Energy Holdings Company (MidAmerican) Commenter Type: Electric Utility Company92

Comment: The substantive requirements of both the CCR and ELG rules must be coordinated. EPA’s evaluation of how to harmonize the substantive requirements in the two rules focuses on coordinating requirements for s urface impoundments because these units will be regulated under both rules. As part of EPA’s effort to assess the management of CCR, the agency inspected 516 surface impoundment units at 209 facilities. [Footnote 28: See http://www.epa.gov/wastes/nonhaz/in dustrial/special/fossil/surveys2/summarytable_071913.xls. The data provided in the summary table are used in these comments.] The structural integrity assessments of those inspections generally confirm that EPA?s concerns about CCR impoundment failures are overstated in the CCR risk assessment. EPA states that only those ranking “unsatisfactory” pose an immediate safety threats, [Footnote 29: 78 Fed. Reg. at 34442.] and yet not a single surface impoundment received a ranking of “unsatisfactory.” [Footnote 3 0: EPA Coal Combustion Residuals Impoundment Assessment Reports: http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm. Last accessed September 4, 2013.] Less than one third of the impoundments inspected received a ranking of “poor.” S ome units received a “fair” or “poor” rating solely due to a lack of detailed design or construction data, where they may otherwise be structurally sound. EPA?s CCR rule risk assessment overestimates the actual threat surface impoundments pose to human hea lth and the environment.
During the inspection process, EPA encouraged facilities to respond to the inspection reports and prepare action plans. Nearly all assessed CCR surface impoundments have completed their action plans to implement recommendations ma de by the dam integrity contractors to improve operation and maintenance of the surface impoundments. MidAmerican believes this information must be used to update the CCR rule risk assessment to provide an accurate representation of the current conditions of CCR surface impoundments. An updated risk assessment will appropriately show that surface impoundments pose less of a safety threat than was initially assumed.
When the completed action plan information is incorporated into the risk assessment model, t he lower risk assessment results will not support the surface impoundment liner retrofits required in Subtitle D. It is clear that Subtitle D Prime is the only appropriate option for the regulation of CCR.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments . The commenter is also referred to Unit VI for a discussion of the technical standards applicable to CCR landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0041

- 2 Organization: Certain Teed Corporation Commenter Type: Beneficial User

Comment: The Proposed ELG Rule includes an important discussion on a related rulemaking regarding CCRs. As discussed above, EPA is reviewing the Proposed ELG Rule and Proposed CCR Rule together to understand what impact the two rulemakings will have on human healt h93

and the environment, as well as the regulated community. As part of that coordinated review, EPA has suggested that the new regulatory requirements laid out in the Proposed ELG Rule may allow CCRs to continue to be regulated under Subtitle D of RCRA. 78 Fed. Reg. at 34442. In the absence of any risk to human health or the environment, regulation of CCRs as non

hazardous waste under Subtitle D of RCRA remains the appropriate approach. However, even if EPA were to conclude that CCRs are to be regulated unde r Subtitle D, there is an open question about how the Agency views Wallboard Gypsum. To avoid any regulatory confusion, and consistent with EPA's intent not to regulate beneficially

- reused CCRs such as Wallboard Gypsum, CertainTeed requests that the Agency acknowledge that Wallboard Gypsum does not fall within the definition of a CCR. In the alternative, CertainTeed requests that Wallboard Gypsum be specifically exempt from regulation under 40 C.F.R. § 261.4(a). Specifically, CertainTeed proposes that the A gency adopt the following language as it relates to Wallboard Gypsum: "Wallboard grade synthetic gypsum does not fall within the definition of coal combustion residuals.” In the alternative CertainTeed proposes that the Agency adopt the following language exempting Wallboard Gypsum from regulation under 40 C.F.R. § 261.4(a): “The grade of Wallboard Gypsum used in the manufacture of gypsum panels is excluded from regulation under 40 C.F.R. § 261.4(a).
Response: The Agency acknowledges and appreciates the com ment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments . The commenter is also referred to Unit VI for a d iscussion of the technical standards applicable to CCR landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0049

- 6 Organization: Kansas City Power & Light Company Commenter Type: Electric Utility Company

Comment: As EPA recognizes in the proposed steam electric ELG rule, the final steam ELG and CCR rules will regulate or affect the same unit and/or activity. KCP&L appreciates EPA’s request for comment on its views for how to harmonize these two regulations. As exp lained in more detail in USWAG comments, KCP&L supports that harmonization of the two rules requires:

- Selection of the Subtitle D Prime option in the final CCR rule to enable CCR impoundments, that meet applicable groundwater monitoring and corrective ac tion requirements, to remain operational and to continue to manage and receive specified wastewaters as contemplated under the steam electric ELGs proposal;

- Modification of the proposed Subtitle D Prime option to ensure application of only specified loca tion restrictions to existing CCR surface impoundments to prevent the premature closure of such impoundments and to enable the impoundments to remain operational and to continue to manage and receive specified wastewaters as contemplated under the steam el ectric ELG Proposal;

- Modification of the proposed Subtitle D option to eliminate the requirement that CCR units automatically commence closure upon the cessation of the receipt of CCR in order to prevent the premature closure of such units under the fina l CCR rule;94

- Ensuring that any CCR rule implementation and corresponding compliance obligations for surface impoundment modifications and/or closure not be triggered until a reasonable period of time after the applicable ELG requirements are clearly estab lished for a particular facility in its revised NDPES permit; and

- Developing a mechanism to allow for State implementation of the Subtitle D option

– as opposed to a self

- implementing regime

– in circumstances where a State is able to demonstrate to EPA that its CCR regulations are no less stringent than the final Subtitle D controls.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulg ating this subtitle D rule for the disposal of CCR in landfills and surface impoundments . The commenter is also referred to Unit VI for a discussion of the technical standards applicable to CCR landfills and surface impoundments.

Comment Number: EPA

- HQ

- R CRA

- 2013

- 0209

- 0052

- 3 Organization: Duke Energy Commenter Type: Electric Utility Company

Comment: Duke has reviewed both of the proposed rules and has determined that the regulatory requirements will require the company to make significant modifications to the way they manage CCR in surface impoundments. EPA can best coordinate the requirements of the ELG proposal and the CCR proposal by finalizing the CCR proposal selecting the non

- hazardous waste Subtitle D Prime Option and also providing a reasonable timeline for implementation. This will provide Duke Energy and other electric utilities time to coor dinate compliance planning for the two rules and continue to offer reliable service to their consumers.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments . The commenter is also referred to Unit VI for a discussion of the technical standards applicable to CCR landfills and surface impoundments.

Com ment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0052

- 5 Organization: Duke Energy Commenter Type: Electric Utility Company

Comment: To maintain consistency with coordinating the two rules requires the continued operation of qualified impoundments under the CCR rule. Therefore, EPA must modify the final CCR Rule Subtitle D prime option such that existing surface impoundments are not subject to the full array of location restrictions. Duke Energy contends that an existing surface impoundment should only be subject to th e same location restrictions as those for existing landfills and should have the same opportunity to comply with these requirements through the demonstration of alternatives. In the preamble for the CCR proposal, EPA acknowledges that95

subjecting existing C CR surface impoundments to the full array of locations standards will cause many impoundments to close.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments . The commenter is also referred to Unit VI for a discussion of the technical standards applicable to CCR landfills and surface impoundments.

Com ment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0056

- 5 Organization: Utility Water Act Group, Elizabeth E. Aldridge Commenter Type: Advocacy Group

Comment: EPA should be careful, then, to allow ash ponds to remain in use as needed. This requires crafting the CCR rule so as not to require operators to commence closing ponds within 30 days of last receiving CCRs (75 Fed. Reg. 35,127, 35,252 col. 3 (June 21, 20 10)) and not to require dredging and lining them within five years. Promulgating the “Subtitle D Prime” option in the CCR rulemaking is necessary to accomplish this.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments . The commenter is also referred to Unit VI for a discussion of the technical standa rds applicable to CCR landfills and surface impoundments.



### Section 14

– Coordination of CCR substantive requirements with ELG requirements No significant comments were found in this section

. 

### Section 14.1

– Modification of operations to comply with ELG

No significant comments were found in this section.



### Section 14.1.1

– Zero discharge for ash to eliminate need for surface impoundments

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 5 Organization: Southern Company Commenter Type: Electric Utility Company96

Comment: Under the ELG Rule, EPA proposes to regulate several wastewater discharges associated with CCRs, such as fly ash transport water, bottom ash transport water, and FGD wastewater. EPA is considering eight potential regulatory options, but has four “ preferred” options: 3a, 3b, 3, and 4a[Footnote 45: 78 Fed. Reg. at 34,469.]. All of the preferred options propose requiring dry fly ash handling, and one of the “preferred” options (4a) includes dry bottom ash handling for those units >400MW. For FGD wast ewater, the preferred options range from “best professional judgment” decisions for individual facilities to industry

- wide chemical precipitation plus biological treatment. EPA is also considering further regulation of combustion residual leachate. EPA est imates that 66% of the industry has dry fly ash handling capability, 15% have a combination of wet and dry fly ash handling capability, and 19% have only wet fly ash handling capability[Footnote 46: Id.]. EPA states that dry handling of bottom ash is less prevalent in the industry, and has noted that approximately 30% of the industry operates systems that eliminate the use of transport water, approximately 5% have a combination of wet and dry bottom ash handling capability, and over 65% have only wet bottom ash handling capability. As recognized by EPA, any regulation of fly ash transport water, bottom ash transport water, FGD wastewater, combustion residual leachate, or the ponds and landfills that receive CCRs will be relevant to the CCR Rule and deserves close coordination.
Response: EPA stated that consistent with RCRA section 1006(b), effective coordination of any final RCRA requirements with the ELG requirements would be sought in order to minimize the overall complexity of the two regulatory structures , and facilitate implementation of engineering, financial and permitting activities.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0054

- 18 Organization: Earthjustice Commenter Type: Advocacy Group

Comment: The establishment of dry handling as BAT for fly ash transport water will necessitate the disposal of voluminous quantities of fly ash in landfills rather than surface impoundments. Similarly, dry handling of bottom ash and the solids produced in the chem ical precipitation, biological treatment, and evaporation systems for FGD wastewater, will increase the total solid waste generated by the industry. Therefore, EPA must establish immediately the concomitant design and maintenance standards essential for th e construction and safe operation of engineered coal ash landfills under RCRA. Currently, the majority of states do not require basic protective requirements such as composite liners, leachate collection systems, groundwater monitoring, financial assurance , closure and post

- closure standards and corrective action at all new coal ash landfills. The construction of CCR landfills without these basic standards would undo much of the anticipated benefit of the ELG rule.
Response: The Agency acknowledges and appr eciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to U nit IX of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid waste management plans

. 

### S ection 14.1.1.1

– Feasibility of zero discharge, general97

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 5 Organization: Southern Company Commenter Type: Electric Utility Company

Comment: If EPA nonetheless decides to finalize the rule based on the existing record, any further regulation of fly ash transport water and bottom ash transport water is unjustified and unwarrant ed because dry handling is not cost effective for either wastewater. The same is true for combustion residual leachate.
Response : The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0021

- 2 Organization: The Large Public Power Council (LPPC) Commenter Type: Advocacy Group Comment: ELGs Should Maintain the Option of Impounding Bottom Ash Transport Water for All Existing Facilities. EPA’s adoption of a zero discharge limit for this wastewater stream would have a major impact on the electric power industry. Specifically, it would require 80 percent of the current coal fleet to convert to dry handling of coal ash or other technology for eliminating the discharge of any pollutants from the discharge of the bottom ash tran sport water. These options would impose significant cost on the industry: retrofits of new material handling equipment in the limited space underneath existing boilers are complex and expensive. In addition, industry experience indicates that converting ex isting EGU’s bottom ash handling systems to dry handling systems is extremely costly and has minimal health and environmental benefits. Retrofitting dry collection would require long unit outages and substantial associated replacement power costs during th e outages. In addition, the construction required for dry collection would occur in the section of the facility that is most congested, which will further increase the cost and technical challenges of completing such retrofits. Therefore, because there wil l be little environmental benefit and significant costs, EPA should maintain the surface impoundments treatment option for bottom ash transport water at all EGUs regardless of unit size.
Response : The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0025

- 7 Organization: Southern Company Commenter Type: Electric Utility Company

Comment: If the ELG rule requires dry handling of fly ash or bottom ash, a significant portion of the industry may be required to construc t on

- site landfills to handle the dry material or transport and dispose of thousands of tons of CCRs per year in off

- site landfills. Further, many of the surface impoundments, or ponds, at coal

- fired power plants that receive CCRs, including some of those within Southern Company’s service territory, have a large amount of available capacity remaining. If the CCR rule requires these ponds to close, one negative consequence is the cost98

associated with the loss of the remaining capacity and the procurement of alternative disposal options.
Response : The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 9 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Advocacy Group

Comment: Assuming that th e final ELG rule results in some facilities ceasing the management of certain CCR transport waters in surface impoundments, there should be corresponding modifications in the substantive requirements for surface impoundments in the final CCR rule. Reduced use of impoundments for the management of CCR necessarily will reduce the risk of potential CCR groundwater contamination from these impoundments. This consequence must be considered for purposes of a final CCR rule.
Response : The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0032

- 2 Organization: Siemens Water Technologies LLC (“Siemens”) Commenter Type: Other Company

Comment: Siemens applauds the effort to reduce the amount of water used for top and bottom ash h andling. Given EPA’s target of zero discharge of water used for bottom ash slurry and ash movement activities, the sheer size of typical ash storage facilities make them susceptible to significant precipitation collection during weather events.
Response: E PA stated that consistent with RCRA section 1006(b), effective coordination of any final RCRA requirements with the ELG requirements would be sought in order to minimize the overall complexity of the two regulatory structures, and facilitate implementation of engineering, financial and permitting activities.


### Section 14.1.1.2

– Bottom ash

- specific issues

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0018

- 1 Organization: JEA Commenter Type: Electric Utility Company
Comment: JEA uses water to transport the bottom ash to a surface impoundment. JEA sluices the bottom ash to dewatering bins in order to re

- utilize the sluice water in the process. At times, a blowdown from the sluice water process is discharged to an impoundment t hen to a central wastewater treatment facility in order to maintain proper sluice capabilities. If EPA adopts a zero discharge limit for this wastewater stream, it would have a major impact on JEA. Specifically, it would require our facility to convert to dry handling of coal ash or other technology for eliminating the discharge of any pollutants from the bottom ash transport water. These options99

would impose significant cost with minimal environmental benefit: retrofits of new material handling equipment i n the limited space underneath existing boilers are complex and expensive. Response : The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0019

- 4 Organization: American Electric Power (AEP) Commenter Type: Electric Utility Company
Comment: EPA anticipates that a possible consequence of the proposed ELG requirements is that a number of facilities will choose to convert their fly ash or bottom ash sluicing operations to dry ash

- handling systems and will no longer send such waste to surface impoundments (Id.). It is also likely that some facilities will be retired and closed, leaving “legacy” wastewaters in the impoundments. The ELG proposal contemplates the continued operation of the impoundments and the discharge of th e legacy transport water (i.e. ash transport water already in the pond), yet the proposed CCR rule requires the relining or closure of these same ponds. A prohibition on the discharge of pollutants from fly ash sluice water as proposed under EPA options 3, 3a, 3b, 4a, 4, and 5, and from bottom ash transport water, as proposed under EPA Option 4a, 4, and 5, would mean that many surface impoundments would no longer receive CCRs. This would trigger the proposed CCR rule requirement that closure activities begi n within 30 days of the last receipt of CCR materials and be completed within 180 days of the date of closure (75 FR at 35128, 35252). Thus, a prohibition on the discharge of fly ash/bottom ash transport water would have the unintended consequence of compe lling the closure of impoundments under the proposed CCR rule, while under the proposed ELG rule, that particular impoundment may continue to be operated for some period of time until the legacy wastewaters have been discharged.
R esponse: EPA stated that consistent with RCRA section 1006(b), effective coordination of any final RCRA requirements with the ELG requirements would be sought in order to minimize the overall complexity of the two regulatory structures, and facilitate implementation of engineering
, financial and permitting activities.
Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0019

- 7 Organization: American Electric Power (AEP) Commenter Type: Electric Utility Company

Comment: State requirements may necessitate the accelerated closure of fly ash ponds th at are no longer used for CCR disposal. Following the cessation of fly ash sluicing at facilities that convert to “dry” systems, there would be no further use for the ponds. As a result, the proposed CCR rules will take regulatory precedence and under these rules, closure of the unused ponds must begin within 30 days from the last known receipt of CCR material and be completed within 180 days of the start of closure activities (75 FR at 35252

- 35253), an unrealistic expectation, but not addressed by the ELG r ule proposal. This accelerated schedule will incur additional costs for the affected companies that have not been accounted for by EPA.
Response : The Agency acknowledges and appreciates the comment.100

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0019

- 8 Organization: American Electric Power (AEP) Commenter Type: Electric Utility Company

Comment: AEP’s $/TWPE removal estimates , as well as those of UWAG, demonstrate that the regulation of bottom ash transport water, as proposed in the agency’s effluent gui delines revisions, is not cost effective. However, the lack of a justifiable cost

- benefit analysis is not the only reason to reconsider this proposal. For example, some state regulatory agencies require that ash ponds be closed once wet sluicing is discont inued and the ponds serve no further purpose. For some AEP facilities, the schedule for pond closure would be accelerated, putting further pressure on company budgets that are already stressed. Additionally, some AEP bottom ash retrofits will be tank

- based and will not require the use of bottom ash ponds. Since there would be no further use for these particular ponds, the proposed CCR rules will take regulatory precedence. Under these proposed rules, closure of the unused ponds must begin within 30 days of the last receipt of CCR material and be completed within 180 days of the start of closure activities; an unreasonable time requirement that needs to be addressed under the CCR rule.
Response: The Agency acknowledges and appreciates the comment. The commen ter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX of the preamble for a dis cussion on how EPA expects states to incorporate the CCR rules into state solid waste management plans.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0029

- 1 Organization: Midwest Generation, LLC Commenter Type: Electric Utility Company

Comment: Midwest Gen strongly supports EPA’s proposed options that recognize the performance of gravity settling at surface impoundments as best available technology economically achievable (BAT) for bottom ash transport water, including EPA’s preferred options 3a, 3b, and 3, as well as EPA’s proposed options 1 and 2. This technology is environmentally protective, its effectiveness for treating bottom ash transport water is well

documented, it is the technology used by a majority of facilities, and it is entirely supported by t he statutory factors EPA must consider in establishing BAT. In contrast, EPA’s options that would establish dry handling or closed loop systems as BAT for bottom ash transport water is cost

- prohibitive, presents significant feasibility concerns, and would not result in benefits that would outweigh or justify the significant costs.
Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0029

- 5 Organization: Midwest Generation, LLC Commenter Type: Electric Utilit y Company101

Comment: Midwest Gen strongly opposes EPA’s option to adopt dry handling or closed loop systems as BAT for bottom ash transport water in options 4a (for units rated over 400 MW), 4 and 5 because the conversion of Midwest Gen’s facilities to dry h andling or closed loop systems would be cost prohibitive, would create feasibility issues for certain facilities and, most importantly, is not necessary or justified to achieve the environmental objectives of this rule.
Response: The Agency acknowledges an d appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is also referre d to Unit IX of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid waste management plans.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0038

- 6 Organization: Edison Electric Institute (EEI) Commenter Type: Trade Association

Comment: For the bottom ash transport water, EPA proposes to choose between treatment by impoundment and dry handling or closed

- loop treatment. EEI supports options 1 through 3 (including 3a and 3b), which would set bottom ash transport water limits equivalent to those attainable through treatment in a settling pond, and which is equivalent to the current BPT limits for bottom ash transport water.
Response : The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0039

- 3 Organization: Dynegy Inc. (Dynegy) Commenter Type: Electric Utility Company Comment: Dynegy supports establishing bottom ash transport water effluent limits that are attainable by treatment in a settling pond and equal to the current limits for bottom ash transport water (i.e., EPA Options 1, 2, 3, 3a and 3b). Dynegy opposes Options 4 and 5, which would prohibit discharge of bottom ash transport water, as well as EPA preferred Option 4a, which would prohibit discharge of botto m ash transport water from only those units larger than 400 MW. EPA has not shown that any treatment for bottom ash transport water beyond settling ponds is cost effective.
Response: The Agency acknowledges and appreciates the comment.



### Section 14.1.1.3

- Fly ash

- specific issues

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0021

- 3 Organization: The Large Public Power Council (LPPC) Commenter Type: Advocacy Group102

Comment: EPA Should Maintain the Option to Impound Fly Ash Transport Water from Existing Units in Mo st Circumstances. EPA should also allow the use of wet handling of fly ash and impoundments for fly ash transport water in those cases where mercury adsorption systems do not generate soluble mercury in the fly ash, but rather result in stable mercury form s that are not soluble in water. In allowing for this flexibility EPA could, to the extent needed to address any outstanding environmental concerns, set reasonable numeric limits for specific pollutants of concern present in discharges from fly ash transpo rt water impoundments. Finally, if the final rule does require dry handling of fly ash, EPA should consider providing an exemption for “backup” fly ash sluice systems. Many utilities currently use backup fly ash sluice systems and believe that their contin ued use of such systems as a backup system for limited periods of time is appropriate and most cost

- effective, instead of installing backup dry handling systems. Response: EPA stated that consistent with RCRA section 1006(b), effective coordination of any final RCRA requirements with the ELG requirements would be sought in order to minimize the overall complexity of the two regulatory structures, and facilitate implementati on of engineering, financial and permitting activities.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0038

- 7 Organization: Edison Electric Institute (EEI) Commenter Type: Trade Association

Comment: For a third power plant “key wastestream,” fly ash transport wat er, EPA is proposing two alternatives, either existing BPJ limits or dry handling. EPA’s options 1 and 2 would set TSS and oil and grease limits that can be met by a settling pond. All the other options 3a, 3b, 3, 4a, 4, and 5 would require “dry handling” of fly ash and no discharge of pollutants to waters of the U.S. The four “preferred” options (3a, 3b, 3, and 4a) would require dry handling of fly ash, and no discharge of sluice water, for all in

- scope steam electric facilities. Due to flaws in the Agency ’s underlying assumptions regarding this technology, however, EPA’s cost

- effectiveness analysis is significantly overestimated. Other than options 1 and 2, EPA’s proposals for fly ash transport water do not meet the rulemaking objectives identified in sect ion II.B above, and they do not meet the requirements of CWA section 304(b). As a result, EEI and its members do not support options other than options 1 and 2.
Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0039

- 4 Organization: Dynegy Inc. (Dynegy) Commenter Type: Electric Utility Company

Comment: For the reasons explained by UWAG, dry handling/zero discharge of fly ash transport water cannot be justified on the existing record on a co st

- effectiveness basis. However, as noted in UWAG’s comments, it might be that with more data EPA could justify some treatment for fly ash transport water beyond the existing ELG limits, but EPA would have to reopen the record and collect data on the cost of dry handling of fly ash.103

Response: The Agency acknowledges and appreciates the comment.



### Section 14.1.2

– Voluntary incentive program for closing CCR impoundments/eliminating all process wastewater

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0056

- 7 Organization: Utility Water Act Group, Elizabeth E. Aldridge Commenter Type: Advocacy Group
Comment: UWAG believes that the voluntary incentives are unlikely to do much good because they are too limited. They encourage dischargers to undertake only two sp ecific actions, namely eliminating all discharges for the entire plant or closing surface impoundments. It would be more effective to offer incentives to eliminate individual wastestreams. The rule could allow additional time to eliminate discharges of pol lutants wastestream

- by

- wastestream for those wastestreams that are not otherwise subject to a “no discharge” limit. This would encourage progress toward eliminating discharges even by permittees who cannot close an impoundment or eliminate discharges for t he entire plant.
Response: EPA stated that consistent with RCRA section 1006(b), effective coordination of any final RCRA requirements with the ELG requirements would be sought in order to minimize the overall complexity of the two regulatory structures, a nd facilitate implementation of engineering, financial and permitting activities.


### Section 14.1.2.1

– Feasibility o f a voluntary incentive program

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0040

- 5 Organization: MidAmerican Energy Holdings Company (MidAmerican) Commenter Type: Electric Utility Company

Comment : The proposed voluntary incentive program should be removed from the final effluent limitations guidelines rule. This incentive program is clearly targeted at the use of CCR surface impoundments, and is not appropriate for regulation under the Clean Water Act. The goal of this program is more appropriately managed under the pending CCR rule. MidAmerican recommends that this “incentive” program be removed from the proposed ELG rule entirely.
Response: The Agency acknowledges and appreciates the comment.


### Section 14.1.2.2

– Specific requirements for the voluntary incentive program

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0015

- 7 Organization: PPL Services Corporation Commenter Type: Electric Utility Compan y104

Comment: PPL appreciates the consideration of a voluntary incentive program. However, the approach as detailed in the proposed regulation will likely be an option for only a very few facilities. It would be more effective to offer incentives to eliminate individual wastestreams. We suggest that a third tier be added that would allow additional time for the elimination of one or more wastewaters that the facility may have the ability to remove. In this way, there is an incentive for a facility to move towa rd the EPA’s goal, even if they are not able to eliminate all wastewaters at this time.
Comment: Minnesota Power finds the additional 5 year compliance allowance for zero liquid discharge (ZLD) commitment to not be commensurate with the additional deployment time such plant conversions may take and with the costs that may be associated with doing so. Consequently, Minnesota Power suggests that the incentive toward zero liquid discharge would be more effective if the incentive program was tiered or scaled.
Response: EPA stated that consistent with RCRA section 1006(b), effective coordination of any fin al RCRA requirements with the ELG requirements would be sought in order to minimize the overall complexity of the two regulatory structures, and facilitate implementation of engineering, financial and permitting activities.



### Section 14.2

- Best management practices for CCR surface impoundments No significant comments were received in this area

. 

### Section 14.2.1

– BMP/structural integrity requirements

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0015

- 2 Organization: PPL Services Corporation Commenter Type: Electric Utility Company
Comment: Specifically, structural integrity requirements for surface impoundments are best addressed as part of the pending CCR Rule. The proposed Best Management Practices (BMPs) for surface impoundment structural integrity should be omi tted from the final ELGs as unnecessary and duplicative. Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0017

- 3 Organization: BHP Billiton New Mexico Coal Commenter Type: Other Company
Comment: BNCC and SJCC support establishing BMPs applicable to active and inactive surface impoundments at power plants that manage CCRs. In our view, such an approach would focus105

on the primary and most significant risk associated with the generation and management of CCR material.
Response : The Agency is regulating the disposal of CCR under subtitle D of RCRA. The Agency has also determined that regulation of inactive CCR surface impoundments as defined in section 257.53 is appropriate and necessary as discussed in Unit VI of the preamble supporting this rule. The comm enter is referred to the applicability section of the preamble for a complete discussion.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0023

- 11 Organization: Ameren Missouri Commenter Type: Electric Utility Company

Comment: We agree that surface impoundment integ rity and inspection requirements modeled on the standards for coal slurry impoundments regulated by MSHA is a good starting point for developing comparable standards for CCR impoundments. However, these standards should be developed as part of a Single, co mprehensive regulatory program under RCRA as proposed in the CCR rulemaking rather than throu gh conditions in NPDES permits.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

C omment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0025

- 7 Organization: Southern Company Commenter Type: Electric Utility Company

Comment: The BMPs EPA proposes for surface impoundments in the ELG proposal are similar to those promulgated for coal slurry impoundments re gulated by MSHA at 30 CFR § 77.216 and to comparable requirements in the 2010 proposed CCR rule. MSHA regulations address coal slurry impoundments at coal mines and not impoundments containing CCRs at coal

- fired power plants. In most cases, MSHA regulation s apply where there are mine workings beneath or near a refuse embankment or impoundment where it may be appropriate to consider instabilities and failure occurrences of the impoundments themselves. The construction of coal refuse dikes would require more conservative inspection and storm routing requirements due to the fact that a dike may be raised many times throughout its life, with additions resting on previous dikes and impounded slurry. On the other hand, the dikes at surface impoundments at the faci lities of Southern Company’s operating companies have traditional embankment dams and are constructed in a much more robust manner than coal refuse dikes.
Response: The Agency acknowledges and appreciates the comment. Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0025

- 16 Organization: Southern Company Commenter Type: Electric Utility Company

Comment: EPA Should Not Apply Inappropriate Structural Integrity Standards Southern Company urges EPA not to establish BMPs under the NPDES program; howe ver, if106

EPA continues to consider the MSHA standards as the basis for the BMPs for the assessment of structural integrity, it is appropriate for EPA to consider variations on the MSHA standards, especially for different inspection frequencies or limitation s on the applicability of the MSHA standards for CCR impoundments. The MSHA standards appropriately consider elevation and storage criteria for applying the requirements (i.e., impoundments at coal mines, which impound water, sediment or slurry to an eleva tion of more than five feet and have a storage volume of 20

acre

- feet or more and those coal slurry impoundments that impound water, sediment, or slurry to an elevation of 20 feet or more [Footnote 22: See 30 CFR § 77.216.]). However, EPA, in proposing the se standards to the coal

- fired electric utility industry, has ignored any height and storage criteria and proposes to apply BMPs based on MSHA requirements to “all CCR surface impoundments at steam electric power generating facilities, regardless of height and storage volume.” There is no basis for EPA to impose the proposed requirements on impoundments of any size. Further, Southern Company believes it is critical that EPA tailor the applicability to only those structures that can actually pose a threat to human health and the environment. Diked surface impoundments at coal

- fired power plants are not constructed the same as those regulated by MSHA, which use a broader range of materials (i.e., mine tailings, coal refuse, slurry). The consistently engineered design and construction of CCR surface impoundments presents a different array of potential dam integrity issues than those dams governed under MSHA. It is more suitable for EPA to regulate the aspects of CCR management under RCRA, and therefore establish the structural stability standards under the CCR final rule. For more information on this subject, Southern Company would refer EPA to our comments in response to the CCR proposed rule. Some wastewater facilities are incised, i.e., dug out of the ground, and include no dike or berm component. Facilities of this nature should not be subject to requirements pertaining to the design, construction, operation, or evaluation of facilities with dikes or berms.
Response : The Agency acknowledges and appreciates th e comment. The commenter is referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 17 Organization: Utility Solid Waste Activities Group (USWAG) Commenter T ype: Advocacy Group

Comment: The CCR Proposal’s structural stability requirements are modeled on the long

standing Mine Safety and Health Administration (“MSHA”) dam safety requirements and require, among other things, an annual certification by an indepen dent registered professional engineer to ensure that the design, operation, and maintenance of the impoundment is in accordance with current, prudent engineering practices for the maximum volume of CCR which can be impounded in the unit. Id. at 35245. This is in addition to the proposed requirement that impoundments be inspected on a regular basis to ensure that any potentially hazardous condition or structural weakness is quickly identified and addressed. Id. Indeed, EPA observed that the proposed structur al stability requirements in the Subtitle D proposal “are necessary to ensure that major releases [from CCR impoundments] do not occur that would cause adverse effects on health or the environment.” Id. at 35203.107

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 27 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Advocacy Group

Comment: The proposed BMPs are superfluous and should not be included in the final ELG rule. BMPs cannot be a substitute for the CCR impoundment regulations in the CCR Proposal because EPA lacks sufficient authority under the CWA to address many of the issues (e.g ., closure) and impoundments (e.g., evaporation ponds) covered by the CCR Proposal. BMPs also would not complement the CCR Proposal because they do not impose any requirements that are not already incorporated into the CCR Proposal. USWAG is concerned that having overlapping regulatory schemes potentially overseen by different agencies (or different personnel within the same agency) will present an unnecessary source of potential conflict and confusion. Because EPA can accomplish the intent of the proposed BMPs through the CCR rulemaking, we request that the Agency refrain from including BMPs in the final ELG rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 28 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Advocacy Group

Comment: We reiterate that the proposed BMPs should be abandoned and that CCR surface impoundment monitoring and integrity be covered by the CCR Proposal. However, if EPA elects to proceed with the proposed BMPs, it is important that they are no more onerous than n ecessary. First, EPA should provide greater details on the proposed BMPs through a supplemental proposal that includes draft regulatory language. Second, the BMPs should not be applicable to small impoundments and impoundments that are designated as low ha zard potential. Third, the monitoring frequency should be adjusted to a more reasonable level, especially for lower hazard impoundments. Lastly, EPA should clarify that sensitive CCR impoundment information will not be made widely publically available.

Res ponse : The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0029

- 7 Organization: Midwest Generation, LLC Commenter Type: Electric Utility Company

Comment: In particular, EPA has requested comments on the potential for establishing BMPs for CCR Surface Impoundments, such as periodic inspections. As an initial matter, Midwest Gen notes that EPA has not provided enough detail on potential BMPs to provide meani ngful comment, but Midwest Gen provides the following general principles that Midwest Gen believes should guide EPA’s approach on CCR requirements. As Midwest Gen has previously noted, EPA should tailor these BMPs only to those facilities that have the pot ential to cause the damage that EPA is attempting to prevent. . Midwest Gen encourages EPA to limit its CCR requirements to facilities of a certain size, following the lead of MSHA, which, as EPA notes, has nearly 40 years of experience in similar regulati ons, and based on the substantial body of evidence decided to limit its regulations to impoundments of a certain size.108

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0030

- 4 Organization: Santee Cooper Commenter Type: Electric Utility Company Comment: EPA proposes BMPs to prevent catastrophic failures of impoundments of coal combustion residuals. This issue is also being addressed by the Coal Combustion Residual (CCR) rulemaking under the Resource Conservation and Recovery Act (RCRA). Regulating the

sa me thing under the ELG rules could duplicate or even conflict with the CCR rule. Santee Cooper agrees with EPA's goal to avoid conflicts between the ELG and the CCR rulemaking.
Response : The Agency acknowledges and appreciates the comment

Comment Number : EPA

- HQ

- RCRA

- 2013

- 0209

- 0038

- 12 Organization: Edison Electric Institute (EEI) Commenter Type: Trade Association

Comment: EPA proposes BMPs for CCR Surface Impoundments for plant operators to conduct periodic inspections of active and inactive surface impoundments. In general periodic inspections are a well

- established dam safety practice and important to assess the conditio n and safety of the impoundments being inspected. However, in proposing weekly inspections for all impoundments EPA fails to adopt the sound inspection practices of the dam safety industry. The frequency of a routine periodic inspection should be specific to the impoundment, for instance, MSHA guidelines for high hazard impoundments require quarterly inspections; significant hazard impoundments associated with surface mines require an inspection once every six months. Inactive impoundments coul d be inspecte d less frequently. EPA proposes annual certifications by an independent registered professional engineer that all construction, operation, and maintenance of impoundments is in accordance with an approved plan. This frequency is unnecessarily in excess of standard industry practices which require a quinquennial ( five

- year) inspection by an independent licensed professional engineer that has at least 10 years of experience and expertise in dam design and construction and in the investigation of the safety of existing dams. These inspections are required for dams more than 10 meters high, dams which impound more than 2,000 acre

- feet, or whic h have a high hazard potential. EPA sponsored an intensive nationwide inspection program following the 2008 TVA impoundme nt failure. EPA's letter to utilities dated August 18, 2013 acknowledges they have ceased active involvement in integrity inspections and have rightly turned over responsibility for the impoundment safety program to the states. Based upon a review the insp ection reports, the deference is likely due to the fact that the risk f or a structural failure is low. EPA also proposes emergency response plans as a BMP for all surface impoundments. In the dam safety industry, Emergency Action Plans (EAPs) are required for dams with a high hazard rating, i.e. where a failure could cause a loss of life. An EAP is an extensive and well documented plan used to activate the public safety agencies responsible for public safety. Requiring an EAP for every single impoundment wo uld degrade the fundamental importance of this process as it is used for high hazard facilities

.109

Response : The Agency is regulating the disposal of CCR under subtitle D of RCRA. The Agency has also determined that regulation of inactive CCR surface impoun dments as defined in section 257.53 is appropriate and necessary as discussed in Unit VI of the preamble supporting this rule. The commenter is referred to the applicability section of the preamble for a complete discussion.

Comment: The steam electric i ndustry faces major regulatory challenges from multiple air regulations, the proposed CCR Rule, and the 316(b) intake structure rule. EPA needs to evaluate the cumulative impact of these regulations as part of its assessment of this proposed rule. OMB guid ance and Executive Order 13563 require EPA to consider the cumulative effects of regulations and seek to reduce overlapping and inconsistent requirements. In particular, EPA’s proposal of BMPs for CCR impoundments demonstrates how important it is for EPA t o coordinate the CCR rulemaking under the Resource Conservation and Recovery Act (RCRA) and the ELG rulemaking under the CWA so as to avoid wasteful duplication of effort and conflicts between the two rules.
Response : The Agency acknowledges and appreciates the comment

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0038

- 12 Organization: Edison Electric Institute (EEI) Commenter Type: Trade Association

Comment: EPA Cannot Legally Promulgate BMP Requirements that Have Not Been Published for Comment. EEI cannot comment fully on proposed BMPs for surface impoundments that EPA briefly describes given that EPA offers no details and no proposed language. If EPA were to make “BMPs” a part of the final rule, under the APA, it would first have to publish a Notice of Data Availability (NODA) or supplemental rulemaking notice, inform the public what requirements are being considered, and take comments. OMB guidance and Executive Order 13563 require EPA to consider the cumulative effects of regulations and seek to red uce overlapping and inconsistent requirements. In particular, EPA’s proposal of BMPs for CCR impoundments demonstrates how important it is for EPA to coordinate the CCR rulemaking under the Resource Conservation and Recovery Act (RCRA) and the ELG rulemaki ng under the CWA so as to avoid wasteful duplication of effort and conflicts between the two rules.

Response : The Agency acknowledges and appreciates the comment

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0040

- 10 Organization: MidAmerican Energy Holdings Comp any (MidAmerican) Commenter Type: Electric Utility Company Comment: The proposed BMPs should not be included in the final ELG rule because they are redundant to structural integrity requirements in the proposed CCR rule. MidAmerican is concerned that having overlapping regulatory schemes overseen by potentially different agencies will present an unnecessary source of potential conflict and confusion. EPA should remove any surface impoundment structural integrity BMPs from its ELG rule. Structural integrity requirements for surface impoundments should be implemented through the RCRA Subtitle D Prime rule.110

Response: EPA stated that consistent with RCRA section 1006(b), effective coordination of any final RCRA requirements with the ELG requirements would be sought in order to minimize the overall complexity of the two regulato ry structures, and facilitate implementation of engineering, financial and permitting activities.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0046

- 4 Organization: Ames Municipal Electric System Commenter Type: Electric Utility Company

Comment: Reference located at 78 FR 34466

- 34467, June 7, 2013. The best management practice (BMP) proposed is excessive and too expensive as a blanket requirement for all surface impoundments. Suggest that surface impoundments be categorized as high risk, medium r isk, and low risk, and develop BMP rules appropriate for each category.
Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0052

- 6 Organization: Duke Energy Commenter Type: Electric Utility Company

Comment: The ELG Proposal is not clear whether all proposed BMPs would be mandatory or if permit

- writers will have discretion to incorporate only those BMPs that are appropriate to the circumstances. Additionally, it is unclear if all impoundments will be subject to the same structural integrity requirements. The MSHA coal slurry impoundment regulations and CCR Proposal tailor the structural integrity and monitoring requirements to apply only to those structures that pose a potential threat to human health and the environment. Duke Energy would contend there is no basis to impose the proposed inspection and structural integrity obligations on small impoundments that, in the unlikely event of a catastrophic failure, would present little or no risk of causing signific ant environmental or human health damage. If EPA requires BMPs in the ELG Proposal, they should be coordinated with the requirements in the CCR Proposal. That would be best addressed by the issuance of a supplemental proposal discussing the BMP requirement s in greater detail and providing proposed regulatory text.
Response: EPA stated that consistent with RCRA section 1006(b), effective coordination of any final RCRA requirements with the ELG requirements would be sought in order to minimize the overall com plexity of the two regulatory structures, and facilitate implementation of engineering, financial and permitting activities.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0054

- 2 Organization: Earthjustice Commenter Type: Advocacy Group

Comment: THE BMPS FOR CCR SURFACE IMPOUNDMENTS MUST INCORPORATE ALL THE REQUIREMENTS SET FORTH IN THE REGULATIONS PROMULGATED FOR COAL SLURRY IMPOUNDMENTS BY THE MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) AT 30 C.F.R. § 77.216.111

In order to prevent coal ash impou ndment failures, EPA must build on the MSHA example to include: (1) daily or weekly inspections by trained personnel; (2) specific elements to be included in each inspection; (3) reporting and corrective action requirements for specific structural integrit y warning signs like increases in seepage; and (4) annual engineering inspections and reports with no exceptions.
Response : The Agency acknowledges and appreciates the comment. The commenter is also referred to the Unit VI of the preamble for a complete discussion and rationale for the technical criteria being promulgated in this rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0054

- 6 Organization: Earthjustice Commenter Type: Advocacy Group

Comment: EPA MUST ESTABLISH BMPS FOR ALL CCR SURFACE IMPOUNDMENTS WHE RE RELEASES WOULD DISCHARGE TO SURFACE WATER AND WHERE GROUNDWATER IS HYDROLOGICALLY CONNECTED TO SURFACE WATER. If EPA establishes BMPs for dam safety, the applicability requirements concerning size, height and volume of waste material impounded must be n o less stringent than the requirements applicable to coal slurry impoundments under MSHA regulations at 33 C.F.R. § 77.216.
Response : The Agency acknowledges and appreciates the comment. The commenter is also referred to the Unit VI of the preamble for a complete discussion and rationale for the technical criteria being promulgated in this rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0054

- 7 Organization: Earthjustice Commenter Type: Advocacy Group

Comment: EPA SHOULD ESTABLISH SPECIFIC AND ENFORCEABLE BMPS FOR CLOSURE OF CCR SURFACE IMPOUNDMENTS. EPA must require specific design, maintenance and remediation criteria similar to the closure requirements for CCR surface impoundments proposed under RCRA. Where CCR is left in place, EPA must require closure plans with minimum safeguards including provisions for major slope stability, groundwater monitoring, cap

- and

- cover requirements, provisions to preclude the probability of future impoundment of water, and pos t

- closure care.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to the Unit VI o f the preamble for a complete discussion and rationale for the technical criteria being promulgated in this rule.112

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0055

- 7 Organization: ARIPPA Commenter Type: Trade Association

Comment: EPA is soliciting comments on w hether they should establish Best Management Practices related to impoundments. EPA may establish BMPs that would require to be implemented.An impoundment to be designed and constructed using MSHA design criteria; require weekly inspection report on the im poundment and if a problem were determine to exists remediation actions would be taken immediately.EPA needs to recognize that the MSHA Standards are applicable to certain design criteria. These include but are limited to the following:

- the height of a d am/impoundment

- the storage capacity of the impoundment (acre feet)

- the drainage area discharging into the impoundment As a result, certain impoundments may not meet the criteria established above for MSHA Action. However, OSMRE did develop basic criter ia to cover impoundments that were not covered by MSHA using USDA Soil Conservation Service Guideline.
Response : The Agency acknowledges and appreciates the comment. The commenter is also referred to the Unit VI of the preamble for a complete discussion and rationale for the technical criteria being promulgated in this rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0056

- 5 Organization: Utility Water Act Group, Elizabeth E. Aldridge Commenter Type: Advocacy Group
Comment: EPA is considering “best management practices” (BMPs) for surface impoundments that receive coal combustion residuals. The asserted legal authority would be § 306 for new sources and § 304(e) for existing sources. EPA also cites § 402(a)(2) and 40 C.F.R. §§ 122.44(k) and 122.41(e). EPA says BMPs are “critical” to preventing catastrophic releases like those at Martins Creek, Pennsylvania, and Kingston, Tennessee. EPA’s Analysis of Impoundment Failures Is Inadequate. In its Benefit and Cost Analysis, EPA has calculated the probability and cost s of catastrophic impoundment failures. At least in part this analysis is intended to justify the proposed BMPs. Finally EPA calculated the “benefit” of having the ELG rule reduce the amount of CCRs treated in impoundments. EPA does not explain how it esti mated the reduction in volume to be caused by the ELG rule. Moreover, the flawed parameters mentioned above make the estimation of reduced volume unreliable. Response : The Agency acknowledges and appreciates the comment. The commenter is also referred to the Unit VI of the preamble for a complete discussion and rationale for the technical criteria being promulgated in this rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0059

- 3 Organization: Public Service Company of New Hampshire Commenter Type: Electric Utility Company113

Comment: In the Proposed Rule, EPA has proposed to establish best management practices (“BMPs”) through the NPDES program applicable to surface impoundments that receive coal combustion residuals. that EPA has not and cannot justify imposin g additional regulation on CCR surface impoundments under RCRA or the CWA. Moreover, even if BMPs were justified, there is no benefit or rational basis for imposing these regulations twice

— under separate and distinct regulatory rulemakings. Doing so could result in the promulgation of conflicting or inconsistent BMPs that leave regulated facilities with the potentially impossible task of trying to comply with each. Instead, if EPA erroneously continues down this path, coordination is imperative between the CCR Rule and this Proposed Rule.
Response : The Agency acknowledges and appreciates the comment. The commenter is also referred to the Unit VI of the preamble for a complete discussion and rationale for the technical criteria being promulgated in this rul e.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0063

- 3 Organization: San Miguel Electric Cooperative, Inc. Commenter Type: Electric Utility Company

Comment: Structural integrity of surface impoundments is being addressed in the CCR rulemaking. Additional rulemaking under ELG could be duplicative or in conflict with the CCR rulemaking. In order to avoid conflicts San Miguel urges EPA to allow the rulemaking

co ncerning surface impoundments to be handled under the CCR rulemaking.
Response: EPA stated that consistent with RCRA section 1006(b), effective coordination of any final RCRA requirements with the ELG requirements would be sought in order to minimize the

o verall complexity of the two regulatory structures, and facilitate implementation of engineering, financial and permitting activities.



### Section 14.2.2

– Regulatory authority/overlap
Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 18 Organization: Southern Compa ny Commenter Type: Electric Utility Company
Comment: Structural Stability of Impoundments Should be Dealt with in the CCR Rule. EPA acknowledges that the proposed BMPs for structural integrity in the ELGs are very similar to the proposed structural integrity and corrective action requirements proposed in the CCR rulemaking. 78 Fed. Reg. at 34,466 col. 3. It is inappropriate for EPA to propose the BMPs under the CWA provisions to assure structural integrity, and further inappropriate when EPA has proposed the same requirements in an ongoing rulemaking for the management of CCRs. It is more suitable for EPA to regulate the aspects of CCR management under RCRA, and therefore establish the structural stability standards under the CCR final rule.2. If EPA Nonetheless Retains the BMPs in the ELG Rule, they m ust Be Clarified.114

Response : EPA stated that consistent with RCRA section 1006(b), e ffective coordination of any final RCRA requirements with the ELG requirements would be sought in order to minimize the overall complexity of the two regulatory structures, and facilitate implementation of engineering, financial and permitting activities.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0019

- 11 Organization: American Electric Power (AEP) Commenter Type: Electric Utility Company

Comment: It does not appear that EPA possesses the authority under the Clean Water Act upon which it is relying to propose B est Management Practices for CCR surface impoundments.
The proposed rule sets forth BMPs to address the structural integrity of active and inactive surface impoundments (78 FR at 34466). BMP conditions may be included in a permit pursuant to the CWA and co urts have upheld the inclusion of such conditions. [Footnote 39: 33. U.S.C. §§ 1314(e) and 1342 (a)(2). See Citizen Coal Council et al v. U.S. EPA, 447 F.3d 879 (6th Cir. 2006)] However, the proposed BMPs go beyond practices, inspection, record keeping, da ta collection or the kinds of BMPs framed by the CWA. Much of the text of the proposed BMPs’ is technical in nature and in certain instances may require a permittee to take specific actions that are outside the scope of a typical BMP.
Response : The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0020

- 8 Organization: Electric Power Generation Association (EPGA) Commenter Type: Trade Association

Comment: EPA should not include the proposed best managemen t practices ("BMPs") in the final Proposal, but rather should continue to develop these requirements in the context of the final RCRA CCR rule Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

Re sponse : The Agency acknowledges and appreciates the comment

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0023

- 12 Organization: Ameren Missouri Commenter Type: Electric Utility

Comment: We believe that between the two proposed ELG and CCR rules, that these issues are more appropriately addressed in the CCR rule under the authority of RCRA. The inclusion of BMPs in NPDES permits is a limited way for regulating the structural integrity of surface115

impoundments. Regulating the structural integrity of CCR surface impoundments under RCRA would allow all CCR impoundment design, operation, monitoring, structural integrity, and closure requirements to be covered by the same program. We request tha t the proposed BMPs not be included in the final ELG rule.
Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0025

- 14 Organization: Southern Company Commenter Type: Electric Utility Company

Comment: EPA S hould Not Duplicate Structural Integrity Requirements of the 2010 CCR Proposal Through BMPS in the NPDES Permits. The Clean Water Act Does Not Authorize EPA to Regulate Structural Integrity of Surface Impoundments.Congress intentionally limited EPA’s autho rity in the CWA at section 402 by authorizing EPA to regulate the “discharge of pollutants” to navigable waters, which are subject to applicable technology

- based effluent limitations and water quality

- based limitations under the NPDES permit program. The p rogram is designed to control discharges of pollutants into surface waters, not to control the design and operation of the discharging facility above the point of discharge. Efforts to mandate specific design and construction elements of the surface impoun dment for structural integrity purposes in NPDES permits exceed EPA’s CWA authority.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

C omment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0025

- 4 Organization: Southern Company Commenter Type: Electric Utility Company

Comment: Structural integrity issues. EPA proposes to establish best management practices (“BMPs”) under the CWA through National Pollutant Discharge Elimination System (“NPDES”) permits. Southern Company maintains that direct federal oversight and enforcement of structural stability issues is unnecessary. In any event, however, the CWA does not authorize EPA to impose federal structural integ rity requirements for CCR impoundments.
Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 25 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Advocacy Group116

Comment: EPA requests comments on the concept of establishing a set of best management practices (BMPs) related to surface impoundment structural integrity that would be incorporate operate, but it explained generally that the Agency is considering BMPs to serve t wo functions. First, permitees would be required to conduct inspections of their surface impoundments at least every seven days to ascertain whether any signs of structural instability or other hazardous conditions had manifested. Appropriate response acti ons, including action to eliminate the hazards and notify appropriate authorities, are proposed. Second, EPA proposed mandating a set of structural integrity BMPs modeled on the Mine Safety and Health Administration (MSHA) coal slurry impoundment regulatio ns at 30 C.F.R. § 77.216. USWAG concurs that surface impoundment integrity and inspection requirements modeled largely on the standards for coal slurry impoundments regulated by MSHA are a good starting point for developing comparable standards for CCR imp oundments. However, these standards should be developed as part of a single, comprehensive regulatory program under RCRA as proposed in the CCR rulemaking rather than through conditions in NPDES permits. EPA acknowledged that its proposed BMPs “are similar to the structural integrity inspection and corrective action requirements in the proposed CCR rulemaking” and states that “[s]tructural integrity requirements . . . could, alternatively, be established using RCRA authority.” 78 Fed. Reg. at 34466. Between the two proposed ELG and CCR rules, we believe these issues are more appropriately addressed in the CCR rule under the authority of RCRA. Accordingly, we request that the proposed BMPs not be included in the final ELG rule. If the proposed BMPs are includ ed in the final ELG rule, however, several revisions to the proposal are necessary to bring them more in line with the CCR Proposal and important elements of the MSHA regulations on which they are modeled.
Response : The Agency acknowledges and appreciates the comment

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 26 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Advocacy Group

Comment: In the pending CCR Proposal, EPA is proposing to create a comprehensive federal program for the r egulation of CCR management units, including surface impoundments, under the Agency’s RCRA authority. In contrast, BMPs for the monitoring and structural integrity of surface impoundments are proposed as being merely “supplemental” to the ELGs in the prese nt rule making. 78 Fed. Reg. at 34466. This presents a classic small handle problem; it is unclear why EPA would propose to regulate a class of solid waste management units under its CWA authority through NPDES permits when clear regulatory authority (not to mention a pending CCR Proposal) exists under RCRA for taking similar action. The inclusion of BMPs in NPDES permits is a limited and awkward vehicle for regulating the structural integrity of surface impoundments. Regulating the structural integrity of CCR surface impoundments under RCRA is clearly the better option because it would allow all CCR impoundment design, operation, monitoring, structural integrity, and closure requirements to be covered by the same program. The proposal also does not clarify whether EPA views BMPs as being a substitute for similar provisions proposed in the pending CCR rulemaking or whether the BMPs will be imposed concurrently with overlapping provisions of the forthcoming CCR rule. Neither situation is ideal.117

USWAG believes regulators and regulated industry will benefit from the simplicity and certainty of having all surface impoundment monitoring and structural integrity regulations fall within one comprehensive regulatory program.
Response : The Agency acknowledges and appreciates the comment

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 27 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Advocacy Group

Comment: The proposed BMPs are superfluous and should not be included in the final ELG rule. BMP s cannot be a substitute for the CCR impoundment regulations in the CCR Proposal because EPA lacks sufficient authority under the CWA to address many of the issues (e.g., closure) and impoundments (e.g., evaporation ponds) covered by the CCR Proposal. BMPs also would not complement the CCR Proposal because they do not impose any requirements that are not already incorporated into the CCR Proposal. USWAG is concerned that having overlapping regulatory schemes potentially overseen by different agencies (or di fferent personnel within the same agency) will present an unnecessary source of potential conflict and confusion. Because EPA can accomplish the intent of the proposed BMPs through the CCR rulemaking, we request that the Agency refrain from including BMPs in the final ELG rule.
Response : The Agency acknowledges and appreciates the comment

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 4 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Advocacy Group

Comment: The ELG Proposal requests comment on the inclusion of best management practices (“BMPs”) in NDPES permits that would establish standards for CCR surface impoundment structural integrity which are duplicative of standards in the CCR Proposal. As discussed in Section III below, any requirements regarding the structural integrity of CCR surface impoundments are properly the province of RCRA; therefore, USWAG believes that EPA should not include the proposed BMPs in the final ELG rule, but rather should contin ue to develop these requirements in the context of the final RCRA CCR rule.
Response: EPA stated that consistent with RCRA section 1006(b), effective coordination of any final RCRA requirements with the ELG requirements would be sought in order to minimize the overall complexity of the two regulatory structures, and facilitate implementation of engineering, financial and permitting activities.
Response : The Agency acknowledges and appreciates the comment

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0035

- 3 Organization: Minnesota Power (ALLETE) Commenter Type: Electric Utility Company118

Comment: Best Management Practices. EPA notes that Best Management Practices (BMPs) for impoundment inspections and maintenance may be included in the final ELG(FR page 34466). MP notes that Minnesota state regulations currently administer a number of programs which ensure impoundment structural integrity and that the inclusion of BMPs in the final ELG creates redundant regulation with these existing state programs. EPA conseque ntly should defer to State programs already addressing impoundment structural integrity to avoid confusion or regulatory hardship through prospective conflicting provisions.
Response: The Agency acknowledges and appreciates the comment. The commenter is r eferred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid waste management plans.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0038

- 12 Organization: Edison Electric Instit ute (EEI) Commenter Type: Trade Association

Comment: EPA is considering requiring best management practices (BMPs) for surface impoundments that receive coal combustion residuals. The BMPs would require inspections every seven days, plans for designing, co nstructing, and maintaining existing impoundments, plans for closure, periodic inspections, and annual certification that the construction, operation, and maintenance follow the approved plan. When stability and safety issues are identified, corrective act ion would be required.EPA’s BMPs proposal is insufficiently described to allow for meaningful comment at this stage and reflects additional flawed assumptions, already pervasive throughout this proposed rulemaking, as well as again insufficient necessary

u nderlying data and analysis (e.g., of associated costs). Also, such BMPs are likely to duplicate and potentially conflict with existing federal and state regulation of such impoundments. EPA should examine the need for the BMPs, and whether they are approp riate to set under the CWA, if the agency does intend to pursue the concept.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0038

- 13 Organization: Edison Electric Institute (EEI) Commenter Type: Trade Association

Comment: EPA Cannot Legally Promulgate BMP Requirements that Have Not Been Published for Comment EEI cannot comment fully on proposed BMPs for surface impoundments that EPA briefly describes given that EPA offers no details and no proposed language. If EPA were to make “BMPs” a part of the final rule, under the APA, it would first have to publish a Notice of Data Availability (NODA) or supplemental rulemaking notice, inform the public what119

requirements are being considered, and take comments. Whatever BMPs EPA is c onsidering, they have not been justified according to the factors that EPA must take into account when making BPT or BAT limitations, pretreatment standards, or NSPSs. For BAT requirements under CWA section 304(a)(2), for example, EPA must consider the “pr ocess employed” and “engineering aspects.” EPA must also take into account “the cost of achieving such effluent reduction ...” EPA has not analyzed the cost of achieving the BMPs that it is apparently considering.C. Proposed BMPs are Inappropriate in Conce pt and Require Cumulative Impacts Coordination

. Despite the impossibility of commenting on BMPs that have not been disclosed, EEI incorporates by reference UWAG Comments on the conceptual ash pond BMPs as EPA has described them in its proposal. As demonstr ated in the UWAG comments, and as shown by the record in the CCR rulemaking, the proposed BMPs are unnecessary. The proposed CWA BMPs also may duplicate or conflict with the proposed CCR Rule, as well as some state requirements. EPA should leave regulation of surface impoundments to the proposed CCR rule.
Response: : EPA stated that consistent with RCRA section 1006(b), effective coordination of any final RCRA requirements with the ELG requirements would be sought in order to minimize the overall complexit y of the two regulatory structures, and facilitate implementation of engineering, financial and permitting activities.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0038

- 2 Organization: Edison Electric Institute (EEI) Commenter Type: Trade Association

Comment: EPA should not set best

- management practice (BMP) requirements for coal

combustion residual impoundments, which are separately regulated.
Response : The Agency acknowledges and appreciates the comment

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0038

- 4 Organiza tion: Edison Electric Institute (EEI) Commenter Type: Trade Association

Comment: EPA’s proposed rule is likewise inflexible with respect to the management of coal combustion residuals (CCRs). EPA’s CCR management proposals, including BMPs, exceed EPA’s authority under the CWA.
Response : The Agency acknowledges and appreciates the com ment

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0038

- 5 Organization: Edison Electric Institute (EEI) Commenter Type: Trade Association120

Comment: In addition, EPA should leave regulation of surface impoundments to the CCR rule. At a minimum, EPA must sufficientl y describe and provide an opportunity for meaningful comment on any BMPs for surface impoundment requirements, as well as sufficiently consider landfill construction impli cations of the proposed limits.
Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0039

- 9 Organization: Dynegy Inc. Commenter Type: Electric Utility Company

Comment: Best Management Practices for CCR Surface Impoundments

EPA is considering establishing in the ELG rule “best management practices” (BMPs) for plant operators to conduct periodic inspections of active and inactive CCR surface impoundments and to take corrective actions where warranted. As this issue is currently part of EPA’s CCR rulemaking under RCRA, attempting to regulate the same issue under the ELG rule would be duplicative and inevitably lead to conflict and/or inconsistencies with the ELG rule. Dynegy strongly supports EPA’s intent, 78 Fed. Reg. at 34,441, to avoid conflict s and overlap between the ELG rulemaking and the CCR rulemaking. Such conflicts and overlap will only increase regulatory complexity, administrative burdens and costs

-- with no benefit. To that end, Dynegy believes the simplest and best way to ensure avoi ding any such overlaps and conflicts is for EPA to address BMPs solely in the CCR rulemaking and not in the ELG rule.
Response: The Agency is regulating the disposal of CCR under subtitle D of RCRA. The Agency has also determined that regulation of inacti ve CCR surface impoundments as defined in section 257.53 is appropriate and necessary as discussed in Unit VI of the preamble supporting this rule. The commenter is referred to the applicability section of the preamble for a complete discussion.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0049

- 5 Organization: Kansas City Power & Light Company Commenter Type: Electric Utility Company

Comment: Best Management Practices (BMPs) for Ash Ponds

EPA’s BMPs proposal is insufficiently described to allow for meaningful comment at this stage. The proposed CWA BMPs may duplicate or conflict with the proposed CCR rulemaking under Resource Conservation and Recovery Act (RCRA), as well as some state requirements. EPA should leave regulation of surface impoundments to the pro posed CCR rule.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA.121

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0054

- 1 Or ganization: Earthjustice Commenter Type: Advocacy Group

Comment: THE CWA AUTHORIZES BMPS TO CONTROL RELEASES OF TOXIC OR HAZARDOUS POLLUTANTS FROM CCR SURFACE IMPOUNDMENTS. EPA is considering establishing BMPs that would apply to CCR surface impoundments t hat receive, store, dispose of, or are otherwise used to manage coal combustion residuals including FGD wastes, fly ash, bottom ash (which includes boiler slag), leachate, and other residuals associated with the combustion of coal to prevent uncontrolled d ischarges from these impoundments. [Footnote 708: 78 Fed. Reg. at 34,458.]
We find that the Clean Water Act authorizes EPA to establish specific and enforceable BMPs to ensure both dam stability and safe closure of surface impoundments that discharge, may discharge or are hydrologically connected to surface water.
The CWA section 304(e) authorizes BMPs supplemental to any effluent limitations to control toxic or hazardous pollutants in runoff, spillage or leaks, and sludge or waste disposal that the Adminis trator determines are associated with or ancillary to the industrial process and may contribute significant amounts of pollutants to the nation’s waters.
To adequately address the pollutant discharges from CCR surface impoundments, BMPs must include the sp ecific requirements discussed below, and these conditions must be imposed in NPDES permits that are timely modified.
Response : The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0054

- 2 Organization: Earthjustice Commenter Type: Advocacy Group
Comment: THE BMPS FOR CCR SURFACE IMPOUNDMENTS MUST INCORPORATE ALL THE REQUIREMENTS SET FORTH IN THE REGULATIONS PROMULGATED FOR COAL SLURRY IMPOUNDMENTS BY THE MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) AT 30 C.F.R. § 77. 216. In EPA’s 2010 proposed CCR rule, EPA proposed incorporation of the MSHA standards for coal slurry impoundments set forth in 30 C.F.R. § 77.216.EPA MUST INCLUDE ADDITIONAL REQUIREMENTS IN THE BMPS FOR CCR SURFACE IMPOUNDMENTS. The MSHA regulations are a useful template for impoundment BMP requirements, but they must be strengthened by requiring: (1) daily or weekly inspections by trained personnel; (2) specific elements to be included in each inspection; (3) reporting and corrective action requirements for specific structural integrity warning signs like increases in seepage; and (4) annual engineering inspections and reports with no exceptions. In order to prevent coal ash impoundment failures, EPA must build on the MSHA example to include: (1) daily or weekly inspections by trained personnel; (2) specific elements to be included in each inspection; (3) reporting and corrective action requirements for specific122

structural integrity warning signs like increases in seepage; and (4) annual engineering inspec tions and reports with no exceptions. Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal o f CCR in landfills and surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0054

- 3 Organization: Earthjustice Commenter Type: Advocacy Group
Comment: EPA MUST REQUIRE SPECIFIC BMPS IN NPDES PERMITS TO PROVIDE FOR PUBLIC PARTICIPATION IN THE SUBSTANCE OF THE CONDITIONS, ENSURE ENFORCEABILITY, AND GUARANTEE PROTECTION OF HUMAN HEALTH AND THE ENVIRONMENT.If EPA fails to require specific BMPs in NPDES perm its, with clear reporting and corrective action requirements, then the states will continue to write NPDES permits without enforceable structural integrity standards. Specific standards for design, inspection and corrective action are set forth in both the MSHA regulations and in the CCR proposed rules modeled after those regulations. The BMPs should require adherence to these specific standards, and these standards should be incorporated into NPDES permits to ensure consistent and effective controls on all coal ash impoundments nationwide.The current (administratively extended) permits for three TVA plants in Alabama and Kentucky serve as useful examples of the failure of the status quo; all of these permits effectively ignore structural integrity and lack conditions that would ensure against significant releases of toxic pollutants to surface waters. EPA must fill this regulatory gap with clear prescriptions for permit language adequate to detect and respond to early warnings of compromised dike stability.
Response : The Agency acknowledges and appreciates the comment

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0056

- 6 Organization: Utility Water Act Group, Elizabeth E. Aldridge Commenter Type: Advocacy Group

Comment: BMPs for Ash Ponds

- EPA is considering “best management practices” (BMPs) for surface impoundments that receive coal combustion residuals. The asserted legal authority would be § 306 for new sources and § 304(e) for existing sources. EPA also cites § 402(a )(2) and 40 C.F.R. §§ 122.44(k) and 122.41(e). EPA says BMPs are “critical” to preventing catastrophic releases like those at Martins Creek, Pennsylvania, and Kingston, Tennessee. Clean Water Act § 304(e) provides that EPA may publish BMP regulations for a ny specific toxic or hazardous pollutant to control runoff, spillage or leaks, sludge or waste disposal, and drainage from raw material storage if they may contribute significant amounts of such pollutants to navigable waters.The BMPs would require inspect ions every seven days, plans for designing, constructing, and maintaining existing impoundments, plans for closure, periodic inspections, and annual certification that the construction, operation, and maintenance follows the approved plan. When stability a nd safety issues are identified, corrective action would be required.UWAG appreciates EPA’s commitment to harmonizing and coordinating the ELG and CCR rules. RCRA is the more appropriate program for addressing the structural integrity of surface123

impoundmen ts and landfills managing CCR. Implementing CWA BMPs on top of RCRA design and operation requirements would not only be redundant, but potentially confusing to both the regulated community and regulators.
Response: EPA stated that consistent with RCRA sec tion 1006(b), effective coordination of any final RCRA requirements with the ELG requirements would be sought in order to minimize the overall complexity of the two regulatory structures, and facilitate implementation of engineering, financial and permitti ng activities.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0059

- 3 Organization: Public Service Company of New Hampshire Commenter Type: Electric Utility Company

Comment: BMPs for Ash Ponds

- In the Proposed Rule, EPA has proposed to establish best management practices (“BMPs”) through the NPDES program applicable to surface impoundments that receive coal combustion residuals.EPA is also considering the inclusion of BMPs in the final rule to address the integrity of surface impoundments. These BMPs would be modeled after those applicable to coal slurry impoundments regulated by the Mine Safety and Health Administration (“MSHA”). Facilities using CCR impoundments would need to (1) submit to EPA or the applicable state authority plans for the design, construction, and maintenance of existing impoundments; (2) submit plans for closure to the appropriate authority; (3) conduct periodic inspections by trained personnel who are know ledgeable in impoundment design and safety; and (4) provide an annual certification by an independent registered professional engineer that all construction, operation, and maintenance of impoundments is in accordance with the approved plan. Owners and ope rators would be required to address any problematic stability and safety issues in a timely manner. The BMPs being considered for CCR impoundments at power plants would apply to all structures regardless of height and storage volume; although, EPA is conte mplating possible variations on the BMPs it requires based on distinctive criteria that reasonably permit such differentiations, including but not limited to different inspection frequencies or limitations on the applicability of BMPs.PSNH has a number of concerns with EPA’s proposed BMPs for surface impoundments. Specifically, PSNH questions whether EPA possesses adequate legal authority to regulate these structures pursuant to the CWA. That the agency ostensibly possesses sufficient authority to do so pur suant to RCRA further calls into question why EPA would attempt to establish standards in this rulemaking

– much less create duplicative or overlapping regulations in both this and the CCR rules. PSNH is also troubled by the scant information regarding the proposed BMPs provided in the Proposed Rule. EPA must publish for notice and comment the precise BMPs it intends to adopt to allow the regulated community to meaningfully comment on the proposed standards. Lastly, the materials at the agency’s disposal in connection with its CCR rulemaking effort adequately demonstrate that regulatory standards of this kind are unnecessary. PSNH offers the following discussion for each of these significant concerns.
Response: E EPa acknowledges and appreciates this comment. PA stated that consistent with RCRA section 1006(b), effective coordination of any final RCRA requirements with the ELG124

requirements would be sought in order to minimize the overall complexity of the two regulatory structures, and facilitate implementation of engineering, financial and permitting activities.


### Section 14.3

– Combustion residuals leachate from landfills and surface impoundments

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 20 Organization: Utility Solid Waste Activities Group (USWAG) Commenter T ype: Advocacy Group
Comment: In the recent CCR NODA, the Agency specifically requested comment on the time frame for CCR units to initiate closure when they temporarily are idle, recognizing that there are legitimate circumstances in which disposal units will not receive CCR for exte nded periods of time, even though the facility intends to continue use the unit. See 78 Fed. Reg. 46940, 46944 (Aug. 2, 2013). In response to this issue, and consistent with the points above, USWAG explained that, even in circumstances where a CCR surface impoundment ceases the receipt of CCR altogether, there are compelling reasons to keep the impoundment open in order to continue manage other regulated wastestreams, including wastestreams expressly contemplated for impoundment management under the ELG pro posal. Therefore, we advocated that, so long as the impoundments are continuing to accept any wastestreams for which they are permitted, utilities should be able to continue operating them irrespective of whether they continue to accept CCR. See USWAG comm ents on CCR NODA at 36

– 39 (Docket No. EPAHQ

- RCRA

- 2012

- 0028). Response : The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria of the rule, including applicability and closure.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0052

- 7 Organization: Duke Energy Commenter Type: Electric Utility Company
Comment: EPA must amend the Definition of Combustion Residual Leachate in ELG Proposal

- It is important for EPA to confirm in the final ELG rule that the definition of the term “combustion residual leachate” does not capture wastewater streams that are not subject to regulation under that rulemaking; specifically, wastewaters that are not channeled and discharged via a point source to a water of the United States. This defin ition is overbroad in at least three respects [Footnote 10: See Federal Register Volume 78 No.110 June 7, 2013 at 34533 (proposed to be codified at 40 CFR 423.11(r)).]. First, it could be misconstrued as stating that stormwater flowing off of a landfill is leachate. Second, the proposed definition potentially is broad enough to apply to water that comes into contact with CCR that is beneficially used. Third, the proposed definition could be read to mean that EPA intends to regulate seepage and leakage from units even when it is not collected or channelized and discharged through a point source. It would not be appropriate to construe water as leachate subject to the proposed ELG requirements in any of these circumstances, and Duke Energy does not believe tha t EPA intended the definition to be as broad as it appears to be. Duke Energy requests the EPA revise the regulatory definition for the ELG Proposal as follows:The term combustion residual leachate means leachate from landfills or125

surface impoundments cont aining residuals from the combustion of fossil or fossil

- derived fuel. Leachate includes liquid, including any suspended or dissolved constituents in the liquid that has percolated through the CCR or other materials placed in a landfill, subsequently captu red in a leachate collection system or channelized and then discharged via a point source. This definition excludes stormwater runoff. Response: The Agency acknowledges and appreciates the comment. This CSD or the preamble discussion addressing the technical criteria of the rule do not specifically address comments on the ELG proposed regulatory options.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0055

- 4 Organization: ARIPPA Commenter Type: Trade Association
Comment: ARIPPA is concerned that the agency ha s significantly increased the cost of wastewater treatment based on the proposed rule Furthermore, it will greatly increase the complexity of wastewater treatment and management potentially resulting in greater opportunity for upset conditions and ineffici ent treatment. The proposed rule prevents comingling of select streams. The management of these flows could become very expensive in terms of equipment retrofits and impoundment storage capacity as well as managing biological treatment systems for selenium and having the system function properly. Response: The Agency acknowledges and appreciates the comment. This CSD or the preamble discussion addressing the technical criteria of the rule do not specifically address comments on the ELG proposed regulatory options.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0056

- 2 Organization: Utility Water Act Group, Elizabeth E. Aldridge Commenter Type: Advocacy Group
Comment: In short, “seeps” and “leakage” from landfills and surface impoundments cannot be regulated as comb ustion residual leachate under this rulemaking unless the water is collected or channelized and then discharged via a point source to surface water that constitutes a water of the United States. While seepage that is not collected or channeled would be sub ject to the groundwater monitoring and corrective action requirements under EPA’s proposed CCR rulemaking, the ELG regulations apply only when the seepage is channeled and released through a point source to a surface water that constitutes a water of the U nited States. Therefore, it is important for EPA either (1) to clarify in the final rule “seepage” and “leakage” means only seepage and leakage that is collected and then discharged via a point source to a water of the United States or (2) to amend the reg ulatory text to ensure that these conditions attach to the terms “seepage, leak, and leakage” in the definition. Response: The Agency acknowledges and appreciates the comment. This CSD or the preamble discussion addressing the technical criteria of the rule do not specifically address comments on the ELG proposed regulatory options.126

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0056

- 5 Organization: Utility Water Act Group, Elizabeth E. Aldridge Commenter Type: Advocacy Group
Comment: “Combustion Residual Le achate” Should Not Include Water That May Contact CCR That Is Beneficially Used EPA should clarify that the term “combustion residual leachate” does not include water that has come into contact with CCR that has been beneficially used and has not been disp osed of or otherwise managed in a CCR landfill or surface impoundment. It is important to encourage the beneficial use of CCR. For example, landfills and impoundments are sometimes constructed using structural fill and embankments using CCR. Operators of a landfill may use CCR for daily cover and as part of the final cover material when the landfill is closed. CCR also can be used as road base for service roads to landfills and for other roads as well. These uses of CCR are not to “contain” residuals and therefore do not fall within the proposed definition. But EPA should clarify that this is so. The final ELG rule should say clearly that the term “combustion residual leachate” does not include water that may come into incidental contact with CCR used in b eneficial use applications. Response: The Agency acknowledges and appreciates the comment. This CSD or the preamble discussion addressing the technical criteria of the rule do not specifically address comments on the ELG proposed regulatory options.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0059

- 2 Organization: Public Service Company of New Hampshire Commenter Type: Electric Utility Company

Comment: In the Proposed Rule, EPA has proposed to remove combustion residual leachate from the definition of a “low volume waste” and require leachate from both landfills and ash ponds to be handled, treated, and monitored separately. [Footnote 22: Although, if c hemical precipitation treatment is required for combustion residual leachate wastewaters, EPA discusses in the Proposed Rule the possibility of permittees treating this waste stream along with FGD wastewater. Contrary to EPA’s suggestion, it may not be fea sible to combine leachate and FGD wastewaters at some facilities due to plant layout. Significant distances may separate a landfill/ash pond from FGD treatment infrastructure, making co

- treatment difficult and costly. In the end, and as discussed in detail below, chemical precipitation of residual leachate is too costly when compared to the expected environmental benefit. That combustion residual leachate may have to be handled and treated separate from FGD wastewaters at some facilities further exacerbates the already disparate cost

- effectiveness of this treatment option.
Contaminated leachate collected on a site for treatment or disposal should be considered a low volume waste. Yet, all signs point to EPA regulating collection systems of this kind for land fills pursuant to the upcoming CCR rule. See 75 Fed. Reg. 35,239 (June 21, 2010). PSNH therefore believes that regulation of this waste stream is best left for that rulemaking to avoid the possibility of duplicative or inconsistent regulation.127

Response : EP A’s goal is to ensure that the two rules work together to effectively address the discharge of pollutants from steam electric generating facilities and the human health and environmental risks associated with the disposal of CCRs, without creating avoidabl e or unnecessary burdens.In considering how to coordinate the potential requirements between the two rules, EPA is guided by the following policy considerations: first and foremost, EPA intends to ensure that its statutory responsibilities to restore and m aintain water quality under the CWA and to protect human health and the environment under RCRA are fulfilled. At the same time, EPA would seek to minimize the potential for overlapping requirements to avoid imposing any unnecessary burdens on regulated ent ities and to facilitate implementation and minimize the overall complexity of the regulatory structure under which facilities must operate. Based on these considerations, EPA is exploring two primary means of integrating the two rules: (1) through coordina ting the design of any final substantive CCR requirements regulatory requirements, and (2) through coordination of the timing and implementation of final rule requirements to provide facilities with a reasonable timeline for implementation that allows for coordinated planning and protects electricity reliability for consumers which would be addressed solely under any CCR rule.
Response: The Agency acknowledges and appreciates the comment. This CSD or the preamble discussion addressing the technical criter ia of the rule do not specifically address comments on the ELG proposed regulatory options.



### Section 14.3.1

- Legacy wastewater in CCR surface impoundments

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0015

- 2 Organization: PPL Services Corporation Commenter Type: Electric Utility Company
Comment: EPA should clarify options for continued operation of surface impoundments containing legacy wastewater. The proposed ELGs include provisions prohibiting the discharge of ash transport waters, but do not clearly delineate requirements applicable to surface impoundments containing legacy ash transport waters. Facility owner/operators may find it beneficial to convert existing surface impoundments that formerly handled ash transport waters to other purposes (e.g., stormwater run

- off retention). EPA should clarify that this option is available with appropriate safeguards. It would be cost

- prohibitive

– and operationally infeasible for many facilities

– to “dry out” the surface impoundment and dispose of legacy wastewater prior to conversion of the impoundment to a different use. PPL urges EPA to consider mechanisms to allow conversion of existing surface impoundments including an exemption for legacy wastewaters contained within a converted surface impoundment or authorization for discharge from such surface impoundment through the time when legacy wastewaters are expected to have been flushed from the impoundment based on projected retention times. Response: The Agency acknowledges and appreciates the comment. This CSD or the preamble discussion addressing the technical criteria of the rule do not specifically address comments on the ELG proposed regulatory options.128

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 14 Organization: Southern Company Commenter Type: Electric Utility Co mpany
Comment: In the ELG Rule, EPA proposes that the BAT and Pretreatment Standards for Existing Sources (PSES) would apply to discharges of FGD wastewater, fly ash transport water, bottom ash transport water, flue gas mercury control water, combustion re sidual leachate, and gasification wastewaters “generated on or after the date established by the permitting authority that is as soon as possible... after July 1, 2017.” 78 Fed. Reg. at 34,522. Any wastewater generated prior to that date would be “legacy” wa stewater and would be subject to current limitations only. Id. Also, facilities would be able to continue to discharge low volume wastewaters to ponds or surface impoundments. Southern supports EPA’s plan to designate wastewaters generated before the compl iance date set by the permitting authority as legacy wastewater subject only to existing limitations. But this provision must be viewed in the context of the proposed CCR Rule.
Response: The Agency acknowledges and appreciates the comment. This CSD or the preamble discussion addressing the technical criteria of the rule do not specifically address comments on the ELG proposed regulatory options.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 7 Organization: Southern Company Commenter Type: Electric Utility Company

Comment: EPA’s ELG proposal recognizes that certain “legacy” CCR transport waters, such as fly ash, bottom ash, and flue gas mercury control legacy wastewater, will continue to be managed in impoundments, subject to present BPT limits. See 78 Fed. Reg. at 34,461

- 63. As EPA recognizes, impoundments may be necessary both to treat “legacy” wastewater already in the impoundments and to treat other wastestreams (like combustion residual leachate or low volume waste) that do not require dry handl ing.
Response: The Agency acknowledges and appreciates the comment. This CSD or the preamble discussion addressing the technical criteria of the rule do not specifically address comments on the ELG proposed regulatory options.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0019

- 6 Organization: American Electric Power (AEP) Commenter Type: Electric Utility Company

Comment: AEP reemphasizes the comments that were submitted in the CCR rulemaking record that demonstrate that the time periods proposed for closure of existing impoundments are impractical and infeasible for larger impoundments. In addition, the requirements to eliminate discharges from bottom ash impoundments in the ELG proposed rule are not cost

- effective, and should not be retained in the f inal rule. This is particularly true when one considers the additional costs associated with reengineering and developing new alternatives for handling other low129

volume wastewaters from existing facilities, which are commonly co

- managed with bottom ash slu ice water. AEP urges EPA to allow existing facilities to retain the option of handling bottom ash and other low volumes wastes in existing impoundments.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit VI of the preamble for the final CCR rule for a discussion of all the technical criteria, including closure. It should be noted however that this CSD or the preamble discussion addressing the technical criteria of the rule do not specifically address comments on the ELG proposed regulatory options.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0019

- 9 Organization: American Electric Power (AEP) Commenter Type: Electric Utility Company

Comment: Under its proposed regulatory implementation scheme, EPA is proposing that certain BAT requirements for existing sources apply to discharges of FGD wastewater, fly ash and bottom ash transport water, FGMC wastewater, combustion residual leachate, and gasification wastewater generated on or after the date established by the permit ting authority that is as soon as possible within the first permit cycle after July 1, 2017 (78 FR at 34523). The agency is also proposing for direct dischargers that, “such wastewater generated prior to that date (i.e. “legacy” wastewater) would remain su bject to the existing BPT effluent limits.” This is based on the fact that some wastewater treatment technologies do not represent BAT for legacy wastewater. For example, this was the case for legacy FGD wastewater (78 FR at 34461), fly ash transport water (Id.), bottom ash transport water (78 FR at 34462) and combustion residual leachate (78 FR at 34463). As a result, EPA has proposed that discharges of legacy FGD wastewater, fly ash transport water, bottom ash transport water and combustion residual leac hate would remain subject to the existing BPT effluent limitations for those specific wastewaters. AEP agrees with this proposal and encourages EPA to implement it in the final revised ELGs. The proposed revisions will allow utilities to discharge legacy w astewaters in compliance with existing water quality standards and effluent guidelines, while at the same time, allowing them to close out impoundments as necessary. Without the legacy wastewater provisions, utilities would be forced to develop technologie s that could separately treat the current and legacy wastewaters. For example, if ongoing and legacy fly ash transport waters had to meet BAT limitations, there would be no practicable way to get rid of the legacy transport waters, since there would be “no discharge” requirement under the BAT limitations. Some of the water could be recycled, particularly in bottom ash systems, but for the most part, there would be no effective way to dispose of the legacy wastewaters other than by the energy intensive proce ss of forced evaporation.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit VI of the preamble for the final CCR rule for a discussion of all the technical criteria, including applicability and closure. It s hould be noted however that this CSD or the preamble discussion addressing the technical criteria of the rule do not specifically address comments on the ELG proposed regulatory options.130

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0021

- 6 Organization: The Large Public Power Council (LPPC) Commenter Type: Advocacy Group

Comment: LPPC supports the grandfathering of legacy wastes as proposed by EPA. This approach, which would set up a system whereby waste from the regulated waste streams generated prior to the date established by the permitting authority in permits issued after the proposed rule’s effective date, July 1, 2017, would be considered “legacy wastes” and would be subject only to the existing standard based on BPT. [Footnote 18: 78 Fed. Reg. 34,522

- 34,523 (June 7, 2013).]The creation of a legacy waste program is reasonable and necessary with respect to wastewater already generated at the particular plant. In addition, it is appropriate to set a future date (after July 21, 2017) to transition to the new ELG regulatory regime because it will take several years after the promulgation of a final rule before states are able to integrate the new ELGs into their permitting systems. Waste created in the interim should be subject to the current requirements, as it w ould not be practical for facilities to change their practices without a clear understanding of how it will affect their permits. Failure to grandfather legacy waste would place undue burdens on the regulated industry and would reduce the resources availab le for the potentially capital intensive projects that may be required to bring facilities into compliance with the new rule once the requirements are made a part of the state permitting process. Response: The Agency acknowledges and appreciates the comme nt. The commenter is referred to Unit VI of the preamble for the final CCR rule for a discussion of all the technical criteria, including applicability and closure. It should be noted however that this CSD or the preamble discussion addressing the techni cal criteria of the rule do not specifically address comments on the ELG proposed regulatory options.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0023

- 4 Organization: Ameren Missouri Commenter Type: Electric Utility

Comment: The proposed regulations create a new categorical waste stream with the newly added definition of combustion residual leachate (,leachate') in § 423.11 (r). They also define best practicable control technology currently available (BPT) and new source perf ormance standards (NSPS) for combustion residual leachate in § 423.12(b)(11) and 423.15(b)(16), respectively. The 2013 Technical Development Document and the Preamble to these rules contain discussions of leachate which differ, and may lead to confusion by State regulators. We ask that this definition be clarified by two additions. First, it should plainly state that storm water which falls upon or runs off a covered or capped ash impoundment or landfill, such that it does not contact or flow through ash, s hould not be classified or regulated as leachate. Second, it should clarify that leachate associated with ash impoundments or landfills are not subject to these regulations, unless it is discharged via a point source co nveyance, to waters of the US.

We ful ly support EPA's decision to establish BPT limits for leachate equivalent to those for low volume wastes, and believe it reflects sound policy in light of existing practices for management of these wastes, particularly when considering their typical, limit ed flows. However, with potential burden associated with the proposed NSPS for leachate. While § 423.12(b) clearly131

distinguishes the 2014 NSPS standards from those established in 1982, there remains some uncertainty regarding how EPA and delegated State ag encies might regulate 'new' leachate waste streams from existing sources. This is particularly significant in that impoundment closures and construction or expansion of landfills may well result in installation of new leachate collection, containment and t reatment facilities, as may be driven by either the ELGs or EPA's development of Coal Combustion Residuals (CCR) rules.
We believe these changes are essential, in order to limit the burden of managing leachate under the newly proposed rules. Also, these cl arifications would help ensure effective management of these wastes, without creating unintended consequences, as our industry works to implement changes required by both these rules and the CCR rules.
Response: The Agency acknowledges and appreciates the comment. It should be noted that this CSD or the preamble discussion addressing the technical criteria of the rule do not specifically address comments on the ELG proposed regulatory options.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 19 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Advocacy Group

Comment: As discussed above, however, the ELG Proposal expressly contemplates that certain legacy CCR transport waters will continue to be managed in impoundments and remain subjec t to existing BPT effluent limits, see 78 Fed. Reg. at 34461, 34462, & 34464, and that impoundments that no longer receive certain CCR transport waters will continue to serve a critical component of the treatment system for other regulated effluents (inclu ding, for example, combustion residual leachate, and bottom ash transport water). Id. at 34458. Thus, it is important that an ELG requirement that causes a particular impoundment to cease receiving CCR not automatically trip the unrelated requirement in th e CCR rule that the impoundment immediately begin closure. Again, this is because the ELG rule plainly contemplates that such an impoundment will continue to serve an important treatment function for other regulated wastewaters notwithstanding that it is n o longer receiving CCR transport waters.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit VI of the preamble for the final CCR rule for a discussion of all the technical criteria, including applicability. I t should be noted however that this CSD or the preamble discussion addressing the technical criteria of the rule do not specifically address comments on the ELG proposed regulatory options.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0030

- 2 Organization: Santee Cooper Commenter Type: Electric Utility Company

Comment: In this proposal, EPA recognizes that certain "legacy" CCR transport waters will continue to be managed in impoundments, subject to present BPT limits. [Footnote 1: 78 FR 34461

- 62.] EPA acknowledges that impoundments may be necessary to treat both "legacy "132

wastes already in the impoundments, and to treat other waste streams (like combustion residual leachate or low volume waste) that will not require dry handling. This requires crafting the CCR rule so as not to require utilities to begin closing ponds wit hin 30 days of last receiving CCRs [Footnote 2: 75 FR 35252.] and not to require dredging and lining them within five years. Promulgating the "Subtitle D Prime" option in the CCR rulemaking is necessary to accomplish this.
Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit VI of the preamble for the final CCR rule for a discussion of all the technical criteria, including applicability. It should be noted however that this CSD or the preamble discussion addressi ng the technical criteria of the rule do not specifically address comments on the ELG proposed regulatory options.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0035

- 1 Organization: Minnesota Power (ALLETE) Commenter Type: Electric Utility Company

C omment: CCR Leachate Treatment. EPA is proposing treatment methods for coal combustion leachate (FR page 34454). Minnesota Power comments that the language of the proposed regulation should clarify that leachate treatment requirements only apply to leachate gener ated after the effective date of the final ELG regulation. Leachate generated prior to the regulatory effective date would be “legacy” leachate. The term legacy should be so applied, with consistency, through

- out the final ELG. The proposed language should also clarify that the final ELG will not retroactively require the installation of leachate collection systems in facilities in operation prior to the effective date of the final ELG. In addition, MP advocates that the final ELG and CCR regulations be con sistent given the requirements for the installation of leachate collection systems.
Response: The Agency acknowledges and appreciates the comment. It should be noted however that this CSD or the preamble discussion addressing the technical criteria of the rule do not specifically address comments on the ELG proposed regulatory options as this particular issue is outside the scope of this rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0038

- 11 Organization: Edison Electric Institute (EEI) Commenter Type: Trade Association

Comment: EPA’s ELG proposal recognizes that certain “legacy” CCR transport waters, such as fly ash, bottom ash, and flue gas mercury control legacy waters, will continue to be managed in impoundments, subject to present BPT limits. See 78 Fed. Reg. at 34,461

- 63. A s EPA recognizes, impoundments may be necessary both to treat “legacy” wastes already in the impoundments and to treat other wastestreams (like combustion residual leachate or low volume waste) that do not require dry handling.EPA should be careful, then, to allow ash ponds to remain in use as needed. This requires crafting the CCR rule so as not to require operators to commence closing ponds within 30 days of last receiving CCRs (75 Fed. Reg. 35,127, 35,252133

col. 3 (June 21, 2010)) and not to require dredgi ng and lining them within five years. Promulgating the “Subtitle D Prime” option in the CCR rulemaking is necessary to accomplish this. XIII. Constructing New Landfills Would Be Costly and Time

- Consuming.
Response: The Agency acknowledges and appreciates t he comment. The commenter is referred to Unit VI of the preamble for the final CCR rule for a discussion of all the technical criteria, including applicability. It should be noted however that this CSD or the preamble discussion addressing the technical c riteria of the rule do not specifically address comments on the ELG proposed regulatory options.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0038

- 8 Organization: Edison Electric Institute (EEI) Commenter Type: Trade Association

Comment: Consistent with the August 2013 public meeting, EPA should explicitly acknowledge that CWA new source performance standards (NSPS) are not triggered by a new cell or new landfill built to manage CCR wastestreams displaced as a result of a facility’s compl iance with a new ELG requirement. As EPA staff noted on the webcast, modification of an existing generating unit and its affiliated disposal facilities is an “existing source,” not a new source. EEI believes that any changes in the combustion residual leac hate category contrary to EPA’s proposed options and these clarifications will not help the environment. Moreover, regulating leachate from CCR impoundments under the ELG rules threatens to duplicate or conflict with regulatory requirements that will be se t under the coming CCR rule.
Response: The Agency acknowledges and appreciates the comment. It should be noted however that this CSD or the preamble discussion addressing the technical criteria of the rule do not specifically address this comment on the EL G proposed regulatory options.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0045

- 1 Organization: Big Rivers Electric Corporation (BREC) Commenter Type: Electric Utility Company

Comment: Clarification should be made to options for continued operation of surface impoundments containing wastewater

. The proposed ELGs include provisions prohibiting the discharge of ash transport waters but do not clearly spell out requirements applicable to existing surface impoundments containing wastewaters generated from existing operating facilities. EPA should understand that operational infeasibility exists to dry out existing impoundments. BREC wishes for EPA to consider alternative mechanisms to allow for the conversion of existing impoundments or for the authorization for discharge from said existing surface impoundments until legacy wastewaters have been fully eliminated.
Response: The Agency acknowledges and appreciates the comment. It should be not ed however that this CSD or the preamble discussion addressing the technical criteria of the rule do not specifically address this comment on the ELG proposed regulatory options.134



### Section 14.3.2

– Exclusion for leachate from CCR landfills handling CCR displ aced as a result of the ELG rule

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0020

- 9 Organization: Electric Power Generation Association (EPGA) Commenter Type: Trade Association
Comment: EPA should clarify in the final rule (1) the term "combustion residual leachate" does not encompass water that may come into contact with CCR that is beneficially used, and (2) that combustion residual leachate generated from additional landfill capacity developed for the sole purpose of managing CCR displaced from impoundmen ts as a result of the final ELG requirements is not leachate from a "new source" and therefore is not subject to the new source pretreatment standards for combustion residual leachate.
Response: The Agency acknowledges and appreciates the comment. It should be noted however that this CSD or the preamble discussion addressing the technical criteria of the rule did not specifically address this issue because it was outside the scope of the rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0025

- 3 Organization: Southern Company Commenter Type: Electric Utility Company
Comment: Modification of the requirement to close a surface impoundment based on the known last receipt of CCRs. Surface impoundments serve multiple functions at a power plant. EPA must recognize t hat requiring pond closures in a final CCR rule could undermine other uses of the ponds that are necessary for plant operations and that also should be permissible under the ELG regulations.
Response: The Agency acknowledges and appreciates the comment. It should be noted however that this CSD or the preamble discussion addressing the technical criteria of the rule did not specifically address this issue because it was outside the scope of the rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 31 Organizatio n: Utility Solid Waste Activities Group (USWAG) Commenter Type: Advocacy Group
Comment: USWAG seeks confirmation that any landfills constructed to manage CCR displaced as a result of a facility’s compliance with a newly imposed ELG requirement is not a “new source” and that any combustion residual leachate from such landfills is not subject to the rule’s new source pretreatment standards for combustion residual leachate. Clarification of this position is important because, under EPA’s preferred options, certain existing wastewater streams could become subject to a zero discharge standard. If this option is selected in the final rule, the likely alternative management practice for many utilities will be to convert to dry handling of fly ash and to dispose of the displaced CCR via dry handling in a landfill. While some utilities operate135

dry and wet handling systems in tandem and have adequate existing landfill space to manage the displaced CCR, many utilities currently manage CCR in impoundments and are unlikely to have existing landfill capacity to handle this diverted wastestream. These facilit ies will be compelled in many instances to expand or construct additional onsite landfills at their facilities. If sufficient space is not available or conditions are not otherwise suitable for constructing a landfill onsite, additional offsite landfill ca pacity will need to be constructed for the displaced CCR. In either case, the additional offsite landfill capacity will be dedicated to the same CCR that has been diverted from the pre

- existing impoundment. For the reasons discussed below, USWAG requests t hat EPA clarify that this additional landfill capacity is not subsumed by the ELG requirements for new sources and, in particular, that the combustion residual leachate from such additional capacity is not subject to the proposed pre

- treatment standards fo r combustion residual leachate from new sources.

Response: The Agency acknowledges and appreciates the comment. It should be noted however that this CSD or the preamble discussion addressing the technical criteria of the rule did not specifically address this issue because it was outside the scope of the rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 6 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Advocacy Group
Comment: Residual leachate generated from additional landfill capacity developed for the sole purpose of managing CCR displaced from impoundments as a result of the final ELG requirements is not leachate from a “new source” and therefore is not subject to the new source pretreatment standards for combustion residual leachate.
Response: The Agency acknowledges and appreciates the comment. It should be noted however that this CSD or the preamble discussion addressing the technical criteria of the rule did not specifi cally address this issue because it was outside the scope of the rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0038

- 10 Organization: Edison Electric Institute (EEI) Commenter Type: Trade Association
Comment: New Landfills and Landfill Cells Needed to Handle CCR Displaced by the Steam Electric ELGs Should Be Categorized as Existing Sources It is possible that the new ELG rule, depending on what limits it sets for bottom ash and fly ash transport water, may cause power plants to close ash impoundments and begi n disposing of coal ash in landfills instead. Existing landfills may have to be enlarged, and new landfills may have to be created either on

- or offsite. EPA should make clear that such new cells and landfills are not “new sources” subject to “new source” performance standards. EPA guidance says that the “new source” is the “facility generating the discharge, not the system treating it”.136

Response: The Agency acknowledges and appreciates the comment. It should be noted however that this CSD or the preamble discussion addressing the technical criteria of this rule did not specifically address this issue because it was outside its scope.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0040

- 2 Organization: MidAmerican Energy Holdings Company (MidAmerican) Commenter Type : Electric Utility Company
Comment: The definition of “new source” should not apply to coal combustion residual landfills constructed to manage CCR displaced as a result of newly imposed ELG requirements, or to landfill expansions at an existing facility. MidAmerican requests EPA clarify that leachate generated from required additional CCR landfill capacity is not included in the ELG requirements for new sources, and, in particular, that the combustion residual leachate from such expansion is not subject to the proposed pretreatment standards for new sources. Landfills constructed to manage CCR displaced as a result of a facility’s compliance with a newly imposed ELG requirement do not meet the regulatory definition of “new source” [Footnote 9: 40 CFR §§122. 2, 406.6(m) and 78 Fed. Reg. at 34438.]. Similarly, landfill expansions at existing facilities also do not meet that definition. EPA should also define “combustion residual leachate” to include only leachate generated from landfills or surface impoundments and collected through a leachate collection system designed as such. Regulating leachate from unlined surface impoundments and landfills is inappropriate and beyond the scope of the Clean Water Act (CWA). EPA’s pending CCR rule is a more suitable vehicle for regulation of leachate from unlined surface impoundments or landfills. [Footnote 12: See 75 Fed. Reg. at 35204

- 35207.] The groundwater monitoring system required under the proposed CCR rule would detect any impacts from unlined surface impoundments or landfills and require implementation of corrective action to address those impacts. [Footnote 13: Id.] Furthermore, the definition of leachate should not apply to stormwater runoff, or stormwater in contact with beneficially reused CCR

. Response: The Agency acknowledges and appreciates the comment. It should be noted however that this CSD or the preamble discussion addressing the technical criteria of this rule did not specifically address this issue because it was outside its scope.

Comment Numb er: EPA

- HQ

- RCRA

- 2013

- 0209

- 0049

- 4 Organization: Kansas City Power & Light Company Commenter Type: Electric Utility Company
Comment: EPA should also explicitly acknowledge that CWA new source performance standards (NSPS) are not triggered by a new cell or n ew landfill built to manage Coal Combustion Residues (CCR) waste streams displaced as a result of a facility’s compliance with a new steam electric ELG requirement. Modification of an existing generating unit and its affiliated disposal facilities is an ex isting source, not a new source. EPA guidance also says that the “new source” is the “facility generating the discharge, not the system treating it.”137

Response: The Agency acknowledges and appreciates the comment. It should be noted however that this CSD or the preamble discussion addressing the technical criteria of this rule did not specifically address this issue because it was outside its scope.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0052

- 10 Organization: Duke Energy Commenter Type: Electric Utility Company
Comment: EPA should confirm a landfill constructed to provide additional capacity to comply with the ELG final rule is an existing source

. Duke Energy recommends that EPA confirm that any landfills constructed to manage CCR displaced as a result of a facility’s compliance the ELG Final Rule is not classified as a “new source” and that any combustion residual leachate from such landfills is not subject to the rule’s New Source Pretreatment Standards(NSPS) for this wastestream. Clarification of this p osition is important because under the ELG Proposal the prohibition of discharging flyash or bottom ash transport water will force utilities to begin alternative management practices by converting to dry collection of ash and disposal into landfills. While some of Duke Energy’s coal

- fired units operate both dry and wet handling systems in tandem and may have adequate existing landfill space to manage the displaced CCR, many of the smaller generating stations currently only manage CCR in impoundments. Duke E nergy will need to construct new landfills or expanding existing landfills, some of which will be onsite, while some will be at off

- site locations. Duke Energy also has dedicated landfills that accept CCR from multiple stations and may need more of these t ypes of landfills strategically located to provide additional landfill capacity to handle the flyash or bottom ash that could be collected dry in the future. In all cases, the additional onsite or offsite landfill capacity will be dedicated to the same CCR that had been managed in the pre

- existing impoundments at existing generating stations. Duke Energy requests that EPA clarify that this additional landfill capacity is not a “new source” under the ELG requirements and that the combustion residual leachate from such additional capacity is not subject to the proposed pretreatment standards for combustion residual leachate from new

sources. Response: The Agency acknowledges and appreciates the comment. It should be noted however that this CSD or the preamble discussion addressing the technical criteria of this rule did not specifically address this issue because it was outside its scope.



### Section 15

– Coordination of ELG and CCR implementation timelines No significant comments were found in this section.
Secti on 15.1

– Determining time needed for operational changes to comply with ELG before requiring decision to close or retrofit surface impoundment under CCR138

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0209

- 0027

- 2 Organization: Kentucky Department for Environmental Protection Commenter Type: State Government
Comment: The Commonwealth, in its response to comments for the August 2, 2013 Federal Register regarding disposal, suggested some version of the tiered approach based on several factors for determining the time to complete closure of the largest category of surface impoundments. These factors might include, size, whether “clean

- closed” or “capped” with waste

- in

- place, site geology, volume of ash, depth to groundwater, time to dewater, and volume of material for t he final cover. These are factors that would be considered in the approach using the Environmental Performance Standards but would have specific times tied to the considerations. Response: The Agency acknowledges and appreciates the comment. The commenter is referred to the discussion in Unit VI of the preamble regarding the closure requirements for CC R surface impoundments and CCR landfills covered by this rule. The commenter should also not that the implementation timeframes were developed so as to inform affected stakeholders with all the necessary regulatory information needed to make one decision r egarding the operational status of their unit. It should be noted however that this CSD and the preamble discuss only the technical criteria for this rule and consider technical criteria addressing ELG outside the s c ope of this rule.

Comment Number: EP A

- HQ

- RCRA

- 2013

- 0209

- 0009

- 4 Organization: Dominion Resources Services, Inc Commenter Type: Electric Utility Company
Comment: Eliminate Premature Impoundment Closure Requirement. Under the proposed CCR rule, impoundments are required to commence closure with in 30 days of having last received CCRs. 75 Fed. Reg. at 35252. As stated above, the proposed ELG rule makes clear that impoundments arc critical treatment elements for regulated wastewaters. However, in the event that the ELG rule compels a facility to ce ase introduction of CCRs into an impoundment, the CCR rule would then require the facility to commence closure of that impoundment. This premature closure of impoundments is inconsistent with the ELG requirements that promote the continued use of these sam e impoundments for a critical wastewater treatment purpose, so long as they are operated in an environmentally sound manner. To avoid this inconsistency, we request that the Agency eliminate the automatic closure requirement in the CCR rule if an impoundme nt is still being used to manage wastewater streams consistent with the ELG rule. Response: The Agency acknowledges and appreciates the comment. The commenter is referred to the discussion in Unit VI of the preamble regarding the closure requirements for CCR surface impoundments and CCR landfills covered by this rule. The commenter should also not that the implementation timeframes were developed so as to inform affected stakeholders with all the necessary regulatory information needed to make one decisio n regarding the operational status of their unit. It should be noted however that this CSD and the preamble discuss only the technical criteria for this rule and consider technical criteria addressing ELG outside the scope of this rule.

.139

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 15 Organization: Southern Company Commenter Type: Electric Utility Company
Comment: The Revised Risk Assessment Using ELG ICR Data Will Support a D Prime Option or Will Support Regulation of CCR Disposal Under RCRA Subtitle D . I n the proposed CCR Rule, EPA relied heavily on its Draft Human and Ecological Risk Assessment of Coal Combustion Wastes[Footnote 51: US EPA, August 6, 2007.] to support its Subtitle C option[Footnote 52: 75 Fed. Reg. at 35,167 (Proposed Rule) referencing 4 0 C.F.R. 261.11(a)(3).]. As EPA explains in the ELG proposal: ...EPA did not have definitive data about the location, size, or age of the waste management units, nor on the type or composition of the wastes contained in surface impoundments. Id. at 34,442 col. 1. Consequently, EPA used data thought to represent the industry, when, in fact, the outdated data EPA used was lacking in the assumptions and accuracy to properly represent the current universe of CCR management units across the industry. Now that EP A has acquired data across the industry through the 2010 “ICR” on the location, size, age and contents of surface impoundments containing CCRs, the “data could be used in EPA’s risk assessment for any CCR Rule in several ways that could significantly affec t the results of that assessment[Footnote 53: Id.]. Southern agrees that EPA should update the CCR risk assessment using the new data. When EPA uses these new data in a manner that promotes sound science, Southern agrees with EPA that the updated results h ave the “potential to lower the CCR Rule risk assessment results by as much as an order of magnitude”[Footnote 54: Id. col. 2.]. Southern urges EPA to update the CCR risk assessment with data from the ELG ICR, harmonize its conclusions with the final ELG

r equirements, and in turn “provide strong support for a conclusion that regulation of CCR disposal under RCRA Subtitle D would be adequate”[Footnote 55: Id.].
Response: The Agency refers the commenter to Volume 13 of the CSR.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 15 Organization: Southern Company Commenter Type: Electric Utility Company
Comment: In addition, in response to the ELG Rule, some companies may decide to cease sending CCRs to certain ponds, but will continue to send low volume wastewaters to the ponds and continue to discharge the legacy wastewater and other acceptable wastewaters according to the permitted compliance limits. But if EPA subsequently issues a final Subtitle D CCR Rule that requires the closure of all unlined pon ds (or retrofitting with a composite liner), the company then must close a large number of unlined pond within five years after the effective date of the final rule. In cases of ponds with a majority of their capacity remaining, the date for closure of the pond according to the CCR final requirements will be certain ( i.e., five years), yet there is no current provision for discharging the large volume of water from the pond through the existing discharge point, and no current incentive to recycle the wastew aters ( i.e., legacy wastewaters) in another part of the plant process for reuse (such as for use as scrubber makeup water). Again, alternatively, EPA will need to provide exemptions in the CCR rule to extend all appropriate deadlines in the CCR rule to all ow facilities compliant with ELG requirements to exhaust their140

compliance options authorized under their NPDES permits.
Southern agrees with EPA’s goal that “the implementation dates for each rule would not require facilities to make decisions without und erstanding the implications that such decisions would have for meeting any requirements of each rule.” 78 Fed. Reg. at 34,442 col. 2. The compliance deadlines for the rules must allow adequate time for understanding how the two rules will be implemented an d for taking the actions necessary for compliance with both rules. Because of the number of systems potentially affected (surface impoundments, landfills, water treatment systems, etc.), some facilities will need to sequence their compliance activities. Th e best way to ensure adequate time to comply is to leave it in the hands of the permit writer to decide the “as soon as possible” date for compliance, as EP A has proposed in the ELG Rule.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the comment to Unit V of the preamble for a discussion of the subtitle D regulatory approach.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 8 Organization: Southern Company Commenter Type: Electric Utility Company
Comment: EPA should be careful, then, to allow ash ponds to remain in use as needed. This requires crafting the CCR rule so as not to require operators to commence closing ponds within 30 days of last receiving CCRs (75 Fed. Reg. 35,127, 35,252 col. 3 (June 21, 20 10)) and not to require dredging and lining them within five years. Promulgating the “Subtitle D Prime” option in the CCR rulemaking is necessary to accomplish this.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the comment to Unit V of the preamble for a discussion of the subtitle D regulatory approach.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0019

- 13 Organization: American Electric Power (AEP) Commenter Type: Electric Utility Company
Comment: Even setting aside all of the above concerns, it is not possible for a utility to comply with the propos ed technology requirements within the three to eight year compliance period. For example, in the event that a final ELG rule requires mandatory conversions of wet fly ash systems to dry ash disposal systems, more than five years will be necessary for the d esign, construction and permitting of the alternative landfill disposal space that will be necessary to manage the CCR material that would be diverted from the impoundments to the new landfills. According to the EOP report [Footnote 45: EOP Group, “Cost Es timates for the Mandatory Closure of Surface Impoundments Used for the Management of Coal Combustion Byproducts at141

Coal

- fired Electric Utilities,” Nov. 11, 2010.] prepared for USWAG in the CCR rulemaking docket, a five

- year implementation time period for a wet to dry conversion is not practical given the uncertainties over the availability of adequate engineering capacity to conduct all of the conversions for the entire industry within this time period. The amount of equipment and labor needed to support so many projects within the same time period would be overwhelming. EOP estimates that the industry will need up to ten years to site, design, permit, construct and make operational alternative disposal capacity for displaced CCR in addition to the needed

co nstruction of new wastewater treatment capacity.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surf

ace impoundments covered by rule. The Agency also refers the comment to Unit V of the preamble for a discussion of the subtitle D regulatory approach.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0020

- 6 Organization: Electric Power Generation Association (EPGA) Commenter Type: Trade Association
Comment: AEP reemphasizes the comments that were submitted in the CCR rulemaking record that demonstrate that the time periods proposed for closure of existing impoundments are impractical and infeasible for larger impound ments. In addition, the requirements to eliminate discharges from bottom ash impoundments in the ELG proposed rule are not cost

- effective, and should not be retained in the final rule. This is particularly true when one considers the additional costs assoc iated with reengineering and developing new alternatives for handling other low volume wastewaters from existing facilities, which are commonly co

- managed with bottom ash sluice water. AEP urges EPA to allow existing facilities to retain the option of hand ling bottom ash and other low volumes wastes in existing impoundments.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR l andfills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0021

- 13 Organization: The Large Public Power Council (LPPC) Commenter Type: Advocacy Group
Comment: In addition, it is crucial that EPA allow for coordination of both the substantive requirements and the compliance deadlines of the ELG and CCR rules in order to assist facilities in reaching com pliance in the most cost and time effective manner possible. Affected facilities will be faced with important economic decisions regarding the method of compliance and must be able to make such decisions with full information of the regulations that will a ffect them. For example, determining whether to close or retrofit a surface impoundment will have serious operational and financial repercussions for a facility. Full information regarding all regulations must be available before such a decision is made.142

R esponse: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The commenter is also referred Unit VIII of the preamble for a discussion of implementation timeframes. The Agency also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0023

- 10 Organization: Ameren Missouri Commenter Type: Electric Utility Company
Comment: Another important modification to the CCR Proposal necessary to ensure coordination between the final CCR and ELG rules is the elimination of the requirement to be codified at 40 C.F.R. § 257.1 000)) in the CCR Proposal compelling an impoundment to commence closure within 30 days of the last receipt of CCR. (Federal Register, June 21, 2010,Page 35252). This proposal appears to be based on the assumption that CCR units that perma nently cease to receive CCR will stop functioning as a management or disposal unit. However, this requirement would force the premature closure of impoundments that are otherwise serving critical treatment functions for specified wastewaters under the lega cy provisions of the ELG rule. We support a step

- wise approach for implementation of both rules. It is important that the regulated community know with certainty what the regulatory requirements will be under both sets of rules before it invests significan t resources and begins to undertake major capital modifications that likely will be required to comply with these inter

- related regulations. Any implementation and corresponding compliance obligations for surface impoundment modifications and/or closure un der the CCR rule should not be triggered until a reasonable period of time after the applicable ELG requirements are clearly established for a particular facility in its revised NPDES permit incorporating the new ELG rule requirements.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0023

- 2 Organization: Ameren Missouri Commenter Type: Electric Utility Company
Comment: Fly Ash Transport Waste Stream

- The proposed Effluent Guidelines present a single preferred alternative for "best available technology" (BAT) for fly ash management of "dry handling" (Option 4a in § 423.13). Ameren Missouri believes that EPA should include provisions to allow adequate time for facili ties to fully convert existing fly ash handling systems. For instance, some energy centers have dry fly ash handling installed but rely on wet sluicing for a backup system and/or 'off

- specification' fly ash generation during unit startups or shutdowns. Oth ers have not installed dry fly ash handling capability. Integration of a dry fly ash handling143

system at an existing unit represents a major retrofit within the confines of existing plant infrastructure. If EPA mandates dry fly ash handling, then they must allow adequate time to design, construct, and implement these new systems. EPA's generally applicable implementation timeline is reasonable for most provisions. However, it is imperative that an appropriate amount of time be allowed for the permitting and construction of a coal combustion byproduct landfill in light of EPA's intent to eliminate ponding of fly ash. In this regard, Ameren Missouri requests that the final EIGs allow up to ten years to convert units to dry fly ash handling. This would provide f or an orderly engineered design and would include time to purchase land, obtain permits, and construct the receiving landfill. Although commercial landfills are a potential interim solution, we note that the disposal costs are significantly higher than tho se for an on

- site landfill.
Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0024

- 4 Organization: Xcel Energy Commenter Type: Electric Utility Company
Comment: The compliance timelines identified in both rulemakings (CCR and ELGs) should be consistent to ensure proper coordination of activities involved in modification or conversion of systems to comply with both requirements. The timing of the CCR and ELG propo sals must recognize the interrelated nature of surface impoundments and the process water management systems at power generating stations. As with the CCR proposal, the proposed ELGs will require significant plant modifications that create ripple effects i n other plant systems. The modifications may include: disentangling specific process water streams; engineering new wastewater treatment system(s); evaluating the impacts to other plant systems; engineering impacted plant systems to operate efficiently wit h the process water changes; procuring the required materials and equipment; constructing the changes; and, optimizing the systems will take considerable time. The currently proposed 5 year compliance timeline identified in the ELG proposal (2017

– 2022) i s inadequate for the scope of changes necessary to achieve compliance. The process to engineer, plan, execute, and optimize changes required by the ELGs could require as much as ten (10) years to complete. As previously mentioned, power generating faciliti es are a complex tapestry of systems that are carefully balanced to achieve the highest efficiency possible. Changes to one system impact all the others and it takes considerable time to evaluate and engineer the changes contemplated in the ELG proposal. X cel Energy recommends that EPA allow at least ten (10) years for facilities to achieve compliance and that the specific timing for each facility be decided by the permitting authority. Additionally, timing of surface impoundment closure will require extra time for potentially sighting and constructing new landfill capacity which is largely controlled by local units of government and will introduce other significant issues that are beyond the control of the owner/operator. In light of this the EPA should ens ure that the CCR rulemaking efforts allows for these local variables to control the final compliance on a site specific basis. To ensure that the CCR and ELG rulemaking efforts are properly coordinated, the CCR rule should not require closure of surface im poundments before the associated process waste streams can be modified to meet the ELG requirements.144

Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the tec hnical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the comment er to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding the timeframes for implementing the rule that take into account the implementation timeframes of both rules.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0025

- 12 Organization: Southern Company Commenter Type: Electric Utility Company
Comment: EPA Must Coordinate the Timing and Implementation of the CCR and ELG Rules

EPA also seeks comment on integrating the ELG and CCR rules “(2) through coordination of the timing and implementation of final rule requirements to provide facilities with a reasonable tim eline for implementation that allows for coordinated planning and protects electricity reliability for consumers.” [Footnote 21: 78 Fed. Reg. at 34,441.] In coordinating the timing of these two rules, it is critical that EPA understand the significance of the compliance obligations it imposes. As a practical matter, owners and operators who rely on ponds or a series of ponds to manage their CCRs and associated wastewaters must implement a step

- wise decision

- making process for developing a compliance strateg y for the final CCR and ELG rules. EPA must integrate compliance options and timelines for the CCR and ELG final rules. That includes an allowance for utilities that rely on wet handling of CCRs to have time to design, permit and construct any new handling methods or new technologies that may be necessary for compliance. Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landf ills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding the timeframes for implementing the ru le that take into account the implementation timeframes of both rules.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 18 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Advocacy Group
Comment: USWAG believes that harmonizati on of the two rules requires:

- Selection of the Subtitle D Prime option in the final CCR rule to enable CCR impoundments, that meet applicable groundwater monitoring and corrective action requirements, to remain operational and to continue to manage and r eceive specified wastewaters as contemplated under the ELG Proposal;

- Modification of the proposed Subtitle D Prime Rule to ensure application of only specified location restrictions to existing CCR surface impoundments to prevent the premature closure of such impoundments and to enable the impoundments to remain operational and to continue to manage and receive specified wastewaters as contemplated under the ELG Proposal;

- Modification of the proposed Subtitle D rule to eliminate the requirement that CCR units145

automatically commence closure upon the cessation of the receipt of CCR in order to prevent the premature closure of such units under the final CCR rule

. Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding the timeframes for implementing the rule that take into account the implementation timeframes of both rules.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 21 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Advocacy Group
Comment: In addition to coordination on substantive issues, EPA requests comment on how to best coordinate “the timi ng and implementation of final rule requirements to provide facilities with a reasonable timeline for implementation that allows for coordinated planning and protects electricity reliability for consumers.” 78 Fed. Reg. at 34441. EPA’s “goal is that, consi stent with its statutory requirements, the implementation dates for each rule would not require facilities to make decisions without understanding the implications that such decisions would have for meeting any requirements of each rule.” Id. at 34442. The Agency’s “current approach is to enable a facility to determine whether any changes to its operations are needed to comply with the Steam Electric ELG

— and if so, what those might be

— before the facility would be required, for example, to decide whether to close or retrofit any surface impoundments pursuant to any CCR rule.” Id. As an example, EPA describes a facility that uses CCR surface impoundments for the management of plant wastewater and states that its “current approach would enable the facility

— prio r to the deadline by which the facility would need to decide whether to retrofit or close those surface impoundments to comply with any CCR rule

— to effectively evaluate whether it makes business sense to continue to operate those ponds (with or without any modifications) in light of the requirements of both rules, or whether other changes to facility operations would be more cost

- effective.” Id. USWAG fully supports this step

- wise approach for implementation of the rules. It is fully consistent with the req uirement under RCRA Section 1006(b) to integrate the regulatory provisions of RCRA and CWA to avoid duplication and is in accord with the E.O. 13563 directive to federal agencies to promote “coordination, simplification, and harmonization.” As a threshold matter, it is absolutely imperative that the regulated community know with certainty what the regulatory requirements will be under both sets of rules before it invests significant resources and begins to undertake major capital modifications that likely w ill be required to comply with these inter

- related regulations. Then, and only then, will facility owners/operators be in a position to evaluate their regulatory compliance options, including future regulatory strategies for their CCR surface impoundments. In this respect, USWAG fully agrees with the Agency’s stated goal of enabling a facility to first determine whether any changes to its operations are needed to comply with the ELG

— and if so, what those might be

— before requiring the facility to decide what strategic options to employ with respect to the continued operation of a CCR impoundment under the final CCR rule. Id. at 34442. Given this objective, any implementation and corresponding compliance obligations for surface impoundment146

modifications and/or closure under the CCR rule should not be triggered until a reasonable period of time after the applicable ELG requirements are clearly established for a particular facility in its revised NDPES permit incorporating the new ELG rule requirements.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers th e commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding the timeframes for implementing the rule that take into account the implementation timeframes of both rules.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0027

- 1 Organization: Kentucky Department for Environmental Protection Commenter Type: State Government
Comment: One approach is to examine the ways in which EPA anticipates that facilities are likely to modify the ir operations to comply with the ELG rule, and factor the results of those assessments into EPA’s evaluation of whether separate RCRA requirements under the CCR rule are needed to ensure protection of human health and the environment. For example, as descr ibed in greater detail in this preamble, the ELG rule could eliminate or reduce certain discharges to surface water, including by controlling or eliminating wastewater that is sent to and discharged from surface impoundments. While the ELG would not compel use of a particular technology, EPA predicts that one possible consequence of the proposed ELG requirements is that some number of facilities will choose to convert their sluicing operations to dry ash

- handling systems, and will no longer send such wastes to surface impoundments. EPA is considering how these predictions might affect any specific technical requirements under RCRA that could be applicable to CCR surface impoundments. Thus, for instance, to the extent that facilities would no longer need to o perate surface impoundments, it is possible that this might affect the time frames (or other requirements) necessary for closure of such impoundments. The Commonwealth of Kentucky (Commonwealth) agrees that the ELG rule will affect the closure date for surface impoundments if implemented as proposed. If the effective date of the ELGs is July 1, 2017, the five

- year permit cycle would appear to give facili ties between July 1, 2017 and July 1, 2022 before no

- discharge NPDES permits are reissued and require the beginning of pond closure. The best approach would be to delete the one specific date from the waste rule and mandate closure begin within some set am ount of times from ELG implementation, based on a tier of factors such as size, distance to groundwater, etc. that encourage dry handling of CCR. The ELG rule would stand on its own for requiring when and if to switch to dry handling. The waste rule would contain the tier of times based on the reissuance of the NPDES permit and its triggers for revised treatment.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As147

well as Unit VIII for a discussion regar ding the timeframes for implementing the rule that take into account the implementation timeframes of both rules.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0029

- 2 Organization: Midwest Generation, LLC Commenter Type: Electric Utility Company
Comment: Midwest Gen strongly supports EPA’s proposal to provide sufficient time for facilities to undergo any required modifications to meet the proposed ELGs. Facilities are facing a number of new regulatory requirements, many of which require modifications to e xisting facilities, and sufficient time is needed for planning, budgeting, and construction. However, Midwest Gen also notes that EPA’s proposed compliance timeline would be wholly inadequate if EPA were to adopt bottom ash transport water limits based on dry handling or closed loop systems, which Midwest Gen strongly opposes.
Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0038

- 16 Organization: Edison Electric Institute (EEI) Commenter Type: Trade Association
Comment: Siting, permitting, and construction of new solid waste landfills often takes eight or more years to complete. The ELG rule must be coordinated with the proposed CCR Rule because both involve many of the same wastestreams (fly ash, bot tom ash, and FGD wastes). Coordinated requirements are essential to assure compliance in the most operationally effici ent and cost

- effective manner. According to a report by consultant The EOP Group, Inc., (EOP) for the Utility Solid Waste Activities Group (USWAG) in the CCR rulemaking docket, a five

- year period for wet

- to

- dry conversion is not practical, especially considering the number of qualified engineers available nationwide and the fact that the rule would apply to every coal

- fired unit in the count ry. EOP estimated it would require at least 8

- 10 years to site, design, permit, construct, and start up alternative disposal capacity, in addition to building new wastewater treatment systems. Many factors go into determining a reasonable compliance schedu le

– what type of technologies are required, how many facilities a company must install, how many other facilities are competing for the same resources, how long it takes to get permits, etc. If more than one technology is needed, the time needed to site, design, and construct is on the order of eight to 10 years. EEI recommends a staggered compliance schedule due to the limited availability of experienced engineering and construction companies.
Response: The Agency acknowledges and appreciates this commen t. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Unit V of the preamble for a discussi on of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding the timeframes for implementing the rule that take into account the implementation timeframes of both rules.148

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0038

- 3 Org anization: Edison Electric Institute (EEI) Commenter Type: Trade Association
Comment: EPA should provide adequate time for utilities to implement any new requirements that EPA does impose in a final ELG rule, coordinating implementation of those requiremen ts with compliance with EPA’s separate air, solid waste, and water rulemakings that are affecting or soon will affect the electric utility industry.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding the timeframes for implementing the rule that take into account the implementation timeframes of both rules.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0040

- 8 Organization: MidAmerican Energy Holdings Company (MidAmerican) Commenter Type: Electric Utility Company
Comment: Substantive requirements of a final CCR rule and the proposed ELG rule must be aligned to p revent the premature closure of CCR surface impoundments that meet applicable groundwater monitoring and/or corrective action requirements. The ELG proposal allows for continued use of surface impoundments to manage wastewater and identifies the impoundmen ts as the best practicable control technology currently available for several wastestreams, including legacy ash transport water, combustion residual leachate, and cooling tower blowdown. Under the proposed CCR rule, however, a facility must begin closure of an impoundment within 30 days of the last receipt of CCR. [Footnote 31: See 75 Fed. Reg. at 35252, proposed to be codified at 40 CFR §257.100(j).] The requirement would force the closure of impoundments that are otherwise serving an important treatment function for wastewaters regulated under the ELG rule. The date for initiating closure of a surface impoundment should not be based on its final receipt of CCR, but rather on when the impoundment ceases to serve a function under either the CCR rule or the ELG rule. EPA should amend the regulatory text of the CCR rule to eliminate this automatic closure requirement. The units will remain subject to structural integrity monitoring, groundwater monitoring, and corrective action requirements under the CCR rule. Any potential groundwater issues would be addressed during continued operation of a unit for the purposes of managing wastewater under the ELG rule. This approach would ensure that surface impoundments are operated in a manner that is protective of human health and the environment, while allowing them to continue serving a critical treatment function under the ELG rule.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding the timeframes for implementing the rule that take into account the implementation timeframes of both rules.149

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0040

- 9 Organization: MidAmerican Energy Holdings Company (MidAmerican) Commenter Type: Electric Utility Company
Comment: Regulatory requirements of a final CCR rule should take effect after applicable ELG requiremen ts have been incorporated into revised NDPES permits. In addition to coordination on substantive issues, EPA requests comment on how best to coordinate “the timing and implementation of final rule requirements to provide facilities with a reasonable timeli ne for implementation that allows for coordinated planning and protects electricity reliability for consumers.” [Footnote 32: 78 Fed. Reg. at 34441.] MidAmerican supports a step

- wise approach for implementation of the ELG rule and the CCR rule. It is absol utely critical that the regulated community know with certainty what the regulatory requirements will be under both rules before it invests significant resources to comply with either rule and begins to undertake major capital modifications that likely wil l be required to comply with these inter

- related regulations. In this respect, MidAmerican agrees with EPA’s goal of enabling a facility to first determine whether any changes to its operations are needed to comply with the ELG

– and if so, what those migh t be

– before requiring the facility to decide what strategic options to employ with respect to the continued operation of a CCR impoundment under the final rule. [Footnote 33: Id. at 34442.] Given this objective, any implementation and corresponding compl iance obligations for surface impoundment modifications and/or closure under the CCR rule should not be triggered until a reasonable time after the applicable ELG requirements are clearly established and incorporated into a revised NPDES permit for the fac ility.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agenc y also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding the timeframes for implementing the rule that take into account the implementation timeframes of b oth rules.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0058

- 3 Organization: Missouri Joint Municipal Electric Utility Commission (MPUA) Commenter Type: Electric Utility Company
Comment: We are particularly concerned that the separate rulemaking to regulate coal combustion residuals under the Resource Conservation and Recovery Act (RCRA) will have unfortunate consequences taken together with the present effluent limitations guidelines rul emaking. We appreciate EPA’s desire to coordinate the two rulemakings, and we urge EPA not to promulgate a CCR rule that requires the closing of ash impoundments at almost the same time that the ELG rule may require ash impoundments to stay in service. We will not be able to plan how to comply with the ELG rule until we know what the CCR rule will require.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the t echnical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the150

commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding t he timeframes for implementing the rule that take into account the implementation timeframes of both rules.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0063

- 1 Organization: San Miguel Electric Cooperative, Inc. Commenter Type: Electric Utility Company
Comment: San Miguel supports the efforts of the EPA in coordinating the design, compliance and implementation deadlines for two rulemakings

- Disposal of Coal Combustion Residuals from Electric Utilities rules (CCR) and the Effluent Limitations Guidelines and Standards for the Steam Electric Generating Point Source (ELG)

- assuming the time frame allowed for compliance/implementation provides the needed time for generating entities to design and construct the n eeded additions/modifications. Giving permit wr iters the flexibility to allow sufficient time for plant modifications that ma y be required by the new rule. What constitutes “as soon as possible” needs to be set by the permitting authority and included in the first permit renewal after July 1, 2017. As long as permit authorities require compliance “as soon as possible,” the ELG rule sets no fixed date by which any plant must achieve compliance. This leaves permit writers the flexibility to allow time for plant modifications that ma y be required by the ne w rule. Such flexibility is particularly important if a facility owner/operator decides to close a CCR impoundment and implement an alternative dry ash management system. It could take 8 to 10 years to site, design, permit, construct, and render operationa l alternative dry management systems, including constructing new wastewater treatment and landfill capacity to replace that provided by the impoundments

. Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding the timeframes for implementing the rule that take into account the implementation timeframes of both rules.

Section 15.2

– Timeframe for compliance under voluntary incentive program

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0019

- 12 Organization: American Electric Power (AEP) Commenter Type: Electric Utility Company
Comment: While AEP supports the voluntary incentives, it is not clear when the additional two and five year c ompliance periods would start. EPA is considering the establishment of a voluntary incentive program that would provide more time for proposed BAT requirem ents to be implemented (78 FR at 34458). Two additional years would be granted to implement required151

treatment technologies if all CCR surface impoundments at a facility (excluding leachate impoundments), would be dewatered, closed and capped. Five additio nal years would be granted to implement required treatment technologies if all process wastewater discharges to surface waters, with the exception of cooling water discharges, were eliminated. While AEP supports the proposed incentives, it is not clear whe n the additional two and five year compliance periods would begin. AEP is in agreement with UWAG and suggests that, “the two and five additional years should, in keeping with the compliance dates proposed for the specific limitations, begin to run on the c ompliance date that the permitting authority determines is “as soon as possible” in the first permit renewal cycle after July1, 2017. Where there is more than one compliance date, the lastest of the dates should begin the two and five additional years for the voluntary measures.” [Footnote 43: UWAG ELG Comments, September 20, 2013.]

Response: The Agency acknowledges and appreciates the comment , however it is outside the scope of the CCR rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0021

- 10 Organization: The Large Public Power Council Commenter Type: Advocacy Group
Comment: LPPC supports the proposed extensions for sources w illing to close coal combustion residual (CCR) surface impoundments at participating faciliti es and move to dry handling for coal ash or a closed

- loop, tank

- based process. [Footnote 23: 78 Fed. Reg. 34,467

- 34,468 (June 7, 2013).]Each of these proposed conversion processes are time and resource intensive and would have environmental benefits if they are undertaken. Thus, fac ilities that choose to participate either in the Tier 1 or Tier 2 voluntary incentive programs should have sufficient time to undertake the required changes. In particular, EPA should allow a 2

- year extension for sources that convert to dry handling of ash and commit to close surface impoundments, and a 5

- year extension for sources that eliminate all discharges of process water, as stated in the proposed rule. These additional time periods are reasonable and would encourage the use of these voluntary progra ms. Both the 2

- year and 5

- year extensions are reasonable in light of the capital

and construction

- intensive nature of the projects needed to comply with any dry

- handling provisions or a conversion to zero process water discharge. In implementing these fle xibilities, it is important to clarify the date when the extension begins. The proposed rule does not make it clear whether the date of the extension begins from issuance of permit renewal or 3 years after permit issuance, or at another unspecified date. E PA must clarify this schedule to provide security to facilities regarding their compliance obligations and also provide sources with enough time to undertake this conversion process in a reasonable manner.
Response: The Agency acknowledges and appreciates the comment , however it is outside the scope of the CCR rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0038

- 14 Organization: Edison Electric Institute (EEI) Commenter Type: Trade Association152

Comment: Clarification of Voluntary Incentives Timing is Needed

EPA is considering “voluntary incentives” that would give two additional years for closing surface impoundments and five additional years to eliminate discharge of all process water (except cooling w ater). 78 Fed. Reg. 34,467. Clarification is needed as to when the two and five additional years begin to run. For example, are the additional years triggered by the compliance dates after July 1, 2017 set by the permitting authority for specific limitatio ns, and if so, what limit is the trigger if there are multiple compliance dates associated with different, pertinent wastestreams (e.g., bottom and fly ash transport waters)? EEI believes the two and five additional years should begin to run, in keeping wi th the compliance dates proposed for the specific limitations, on the compliance date that the permitting authority determines is “as soon as possible” (e.g., in conjunction with the first permitting cycle) after July 1, 2017. Where there is more than one pertinent compliance date, the later of the dates should trigger the two and five additional year compliance timing.
Response: The Agency acknowledges and appreciates the comment , however it is outside the scope of the CCR rule.



### Section 15.3

– Timeframe for compliance with CCR leachate ELG limits

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0039

- 8 Organization: Dynegy Inc. Commenter Type: Electric Utility Company
Comment: As proposed by EPA, the deadline for meeting the revised ELG rule (with certain exceptions [Footnote 2: EPA proposes that the effluent limits for nonchemical metal cleaning waste and combustion residual leachate would be effective immediately upon the effective date of the final rule. As discussed in Dynegy’s comments on the proposed nonchemical metal cleaning waste effluent limits (supra page 7), Dynegy does not believe that compliance with any new iron and copper limits for nonchemical metal cleaning wastes should be required immediately upon the effective date of the final ELG rule. ]) would be a date determined by the permitting authority to be “as soon as possible” when the next permit is issued beginning July 1, 2017. Thus, as a practical matter, compliance would not be required until after July 1, 2017 and would not be set until t he next permit is first issued after July 1, 2017. Dynegy supports the flexibility in this compliance timeline approach. The flexibility is very important to plan, budget and construct necessary wastewater treatment system modifications in an orderly manne r over a period of years, particularly for companies with numerous generating facilities subject to the ELG. Depending on the final rule, modification of certain systems may be significant projects requiring extensive engineering and design and constructio n activities. Moreover, owners/operators of steam electric facilities also must coordinate ELG compliance activities with compliance plans and potentially significant plant modifications that may be required under other forthcoming EPA rules applicable to steam generators, including the CCR rule and the cooling water intake structure Clean Water Act Section 316(b) standards.
Response: The Agency acknowledges and appreciates the comment , however it is outside the scope of the CCR rule.153



### Section 15.4

– Overall coordination of timeframe for compliance with CCR and ELG requirements

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0009

- 3 Organization: Dominion Resources Services, Inc. Commenter Type: Electric Utility Company
Comment: Eliminate Premature Impoundment C losure Requirement Under the proposed CCR rule, impoundments are required to commence closure within 30 days of having last received CCRs. 75 Fed. Reg. at 35252. As stated above, the proposed ELG rule makes clear that impoundments arc critical treatment el ements for regulated wastewaters. However, in the event that the ELG rule compels a facility to cease introduction of CCRs into an impoundment, the CCR rule would then require the facility to commence closure of that impoundment. This premature closure of impoundments is inconsistent with the ELG requirements that promote the continued use of these same impoundments for a critical wastewater treatment purpose, so long as they are operated in an environmentally sound manner. To avoid this inconsistency, we r equest that the Agency eliminate the automatic closure requirement in the CCR rule if an impoundment is still being used to manage wastewater stream s consistent with the ELG rule. Coordination of Time lines for Implementation

Another topic the Agency requests comment on is the coordination of compliance and implementation deadlines between the CCR and ELG rules. Consistent with statutory and Executive Order requirements, the Agency's goal is to prevent facilities from having to "make decisions without understanding the implications that such decisions would have for meeting any requirements of each rule." 78 Fed. Reg. at 34442. It is easy to contemplate a facility that is strategically planning for compliance with the ELG rules by assuming that its impo undments will continue to be used for wastewater treatment of bottom ash transport water, as permitted in the facility's state NPDES permit, only to find out that the impoundment must be retrofitted or closed under the CCR rule. It is imperative for regula ted facilities to understand fully the requirements of both rules before they dedicate significant resources and undertake major capital projects that are likely to be required for compliance with each rule. Not being able to make a properly informed decis ion on both sets of rules at the same time would be wasteful in time and money and possible repeated operational downtime from infrastructure modifications. Therefore, we recommend that the Agency align the timing of the two rules such that a facility full y understands its ELG requirements prior to having to make compliance decisions regarding the CCR rule. The other critical timing issue is the management of CCRs and treatment of wastewater streams outside of a surface impoundment. There is a likelihood th at the ELG rule will compel facilities to convert from wet sluicing to dry management of fly ash. In this scenario, facilities are provided with a five

- year period to make this conversion from wet to dry CCR management. It is important to note that as part of this conversion, the facility also needs to identify an alternative disposal location for the dry fly ash, presumably a new landfill. The siting, engineering, local and state approvals, construction, and certification of a new landfill are not simple a ctivities and can be met with delays and opposition that can easily result in the landfill taking 8

- 10 years or more154

to site, engineer, permit, construct, and complete. We ask the Agency to consider these real complications when establishing its compliance schedules. Impoundment closure requirements under the Subtitle D option of the proposed CCR rule will face the same alternative disposal complications described above. The Subtitle D option includes a 5

- year period for the retro fit or closure of a surfac e impoundment. In a majority of cases, it will not be possible or cost

- effective to retrofit an existing surface impoundment. Therefore, the Subtitle D option would most likely require the de facto closure of surface impoundments. The facility will be face d with identifying alternative disposal options, which as described above are lengthy and subject to delays and opposition that will extend this transition period well beyond the 5

- year proposed time frame. Again, to the extent that you do not choose the S ubtitle D Prime option, we request that these complications be considered when the Agency establishes their compliance schedules.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a co mplete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII fo r a discussion regarding the timeframes for implementing the rule that take into account the implementation timeframes of both rules.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 20 Organization: Southern Company Commenter Type: Electric Utility Company
Comment: EPA also seeks comment on integrating the two final rules “through coordination of the timing and implementation of final rule requirements to provide facilities with a reasonable timeline for implementation that allows for coordinated pla nning and protects electricity reliability for consumers”[Footnote 56: 78 Fed. Reg. at 34,441 col. 3.]. For companies like Southern that rely on surface impoundments authorized through NPDES permits to manage their CCRs, a methodical decision

- making proces s must occur when considering the options for compliance with a final rule. In addition, this decision

- making process must occur well in advance of any action being taken. Ideally, EPA would promulgate CCR and ELG Rules that are very compatible and do not impose any conflicting require ments or unnecessary burdens. If EPA were to promulgate the CCR Rule several years after the ELG Rule, many companies may have already decided to continue use of certain ponds by the time the final CCR requirements are known. For example, under EPA’s preferred Option 4a, a facility may conti nue sluicing bottom ash for units with a capacity less than 400 MW. In this instance, a company operating a fully compliant ELG pond would be prohibited, due to the final CCR Rule, from using the pond within five years of the effective date of the CCR Rule (assuming a Subtitle D approach). In this case, the owner or operator will have to go through a second decision

- making process and either build a new lined bottom ash pond or convert to dry bottom ash handling altogether. At the very least, EPA will need to include special exemptions in the CCR rule for all scenarios that are ELG compliant.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criter ia affecting CCR155

landfills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding the timeframes f or implementing the rule that take into account the implementation timeframes of both rules.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0016

- 3 Organization: Southern Company Commenter Type: Electric Utility Company
Comment: Southern further endorses EPA’s goal of ensuring that the implementation deadlines for the ELG and CCR rules are coordinated so that facilities do not have to make compliance decisions without understanding the implications of those decisions for both rul es. Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency a lso refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding the timeframes for implementing the rule that take into account the implementation timeframes of both rules.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 2 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Advocacy Group
Comment: Ensuring that any CCR rule implementation and corresponding compliance obligations for surface impoundment modifications and/or closure not be triggered until a reasonable period of time after the applicable ELG requirements are clearly established for a particular facility in its revised NDPES permit.
Response: The Agency acknowledges and apprecia tes this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding the timeframes for implementing the rule that take into account the implementation timeframes of both rules.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 22 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Advocacy Group
Comment: Finally, it is important for EPA to appreciate the time schedule that will be necessary if, for purposes of either rule, a fac ility owner/operator determines that closure of an CCR impoundment is warranted and that an alternative dry management system will be employed for the CCR. In evaluating this issue in the CCR Proposal, USWAG determined that, if CCR156

impoundments were compel led to close under that rule, it would take the power industry at least 8 to 10 years to site, design, permit, construct, and render operational alternative dry management systems, including constructing new wastewater treatment capacity to replace the

anc illary wastewater treatment function that was provided by the CCR impoundment. See USWAG CCR Comments, EPA

- HQ

- RCRA

- 2009

- 0640

- 10483, App. 19 (Report of EOP entitled “Cost Estimates for the Mandatory Closure of Surface Impoundments Used for the Management of Coal Combustion Byproducts at Coal

- Fired Electric Utilities (Nov. 11, 2010)). USWAG raises this issue because the ELG Proposal contemplates only a 5

- year conversion time frame for a facility to cease the use of impoundments for certain CCR transport water s and to site, design, permit and construct an alternative landfill for the management of the displaced CCR. 78 Fed. Reg. at 34496. A five

- year implementation time period for wet to dry conversion simply will not be achievable in the vast majority of cases due to all the variables associated with designing, siting, and permitting a replacement unit. For example, as the Agency is well aware, opposition to draft permits and appeals of final permit approvals for new CCR landfills from opposition groups can sig nificantly delay the ability of new landfills to actually commence operation, notwithstanding that the applicant may have received final approval from all necessary regulatory authorities. Therefore, any compliance obligation under the final ELG rule that requires a facility to undertake a wet to dry conversion of CCR management should be not be triggered before at least 8 to 10 years after the revised NPDES permit incorporating the new ELG requirements is issued to the facility.
Response: The Agency ackno wledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Un it V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding the timeframes for implementing the rule that take into account the implementation timeframes of both rules.

Comment Numb er: EPA

- HQ

- RCRA

- 2013

- 0209

- 0036

- 5 Organization: Council of Industrial Boiler Owners (CIBO) Commenter Type: Trade Association
Comment: It is difficult to make detailed comments on CCR and surface impoundment management requirements in this proposed regulation because they largely reference the proposed CCR regulation that awaits finalization. It is difficult to comment on the coordinatio n and interdependency of this portion of 40 CFR Part 423 requirements if CCR regulations are not finalized for reference. CIBO members are concerned about the possibility of being covered under all of 40 CR Part 423 if a facility would otherwise only have operations subject to the CCR requ irements in proposed Part 423. Our review of the proposed CCR and surface impoundment management provisions suggests that the regulation does not account for the significant role that surface impoundments have at a power p lant. Their functionality is not limited to managing coal ash. Surface impoundments are used to manage flows of other wastewater streams and to provide mutual treatment benefits that can come from mixing (i.e., comingling), such as thermal treatment and pH adjustment. They are also critical for providing water balance for a utility. Furthermore, many power plants that operate ZLD systems use surface impoundments to manage water flows into and out o f the steam157

generation system. Water and wastewater flows th at can be managed by surface water impoundments include plant washwaters, bottom ash sluicing, stormwater, water treatment system rejects, leachate, FGD blowdown, cooling tower blowdown, boiler blowdown, non

- chemical metal cleaning wastewaters, and chemica l metal cleaning wastewaters. Multiple surface impoundments are often used to manage these flows and control stormwater run

- off from coal piles on other parts of the plants. These ponds are often utilized as make

- up water for various plant processes. EPA h as not made clear its intentions regarding impoundments that handle or manage some CCR wastewater, in spite of the multiple significant regulatory concerns that naturally arise under those circumstances.
Response: The Agency acknowledges and appreciates th is comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding the timeframes for implementing the rule that take into account the implementation timeframes of both rules.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0036

- 8 Organization: Council of Industrial Boiler Owners (CIBO) Commenter Type: Trade Association
Comment: Do not regulate surface impoundments and CCR management until the CCR rule is promulgated.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding the timeframes for implementing the rule that take into account the implementation timeframes of both rules.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0054

- 5 Organization: Earthjustice Commenter Type: Advocacy Group
Comment: IF EPA DOES NOT REQUIRE TIMELY IMPLEMENTATION OF BMPS FOR DESIGN AND INSPECTION OF CCR IMPOUNDMENTS, EPA MUST REQUIRE COMPLIANCE WITH REQUIREMENTS UNDER RCRA. The inclusion of dam safety requirements in BMPs is an urgent matter, as described above. If EPA is unable or unwilling to require compliance with the BMPs no later than three years from the effective date of the final rule, EPA should proceed with establishing identical requirements under RCRA authority.158

Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affe cting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding the timeframes for impl ementing the rule that take into account the implementation timeframes of both rules.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0056

- 8 Organization: Utility Water Act Group, Elizabeth E. Aldridge Commenter Type: Advocacy Group
Comment: New Requirements Need to be Phased in Over Time to Give Permittees Time to Design, Construct, and Test New Equipment Reasonable compliance schedules are crucial to the facilities subject to the proposed rule. EPA may require dry fly ash and dry bottom ash handling. If so, many more landfills will be needed to receive the ash. A three

- or four

- year compliance schedule would be grossly inadequate. Siting, permitting, and constructing new landfills often takes eight or more years to complete. The ELG rule must be coordinated with the CCR rule because both involve of the same wastestreams (fly ash, bottom ash, and FGD wastes). Coordinated requirements are essential to assure compliance in the most operationally efficient and cost

- effective manner. According to a report by consultant EOP Group, Inc. for USWAG in the CCR rulemaking docket, a five

- year period for wet

- to

- dry conversion is not practical, especially considering the number of qualified engineers available nationwide and the fact that the rule would appl y to every coal

- fired unit in the country. EOP estimated it would require at least 8

- 10 years to site, design, permit, construct, and start up alternative disposal capacity, in addition to building new wastewater treatment systems. Because of the financial pressures facing the electric utility industry and the need to finance multiple new requirements under the Clean Air Act, RCRA, and the Clean Water Act, modifications to power plants cannot be made quickly. Companies cannot commit themselves to capital ex penditures until the legal requirements are settled, meaning at the earliest when the ELG rule becomes final (presumably on May 22, 2014). Once the new rule’s requirements are known, each company will have to determine what plant changes are needed to comp ly with the ELG rule and CCR rule together. Then several months of engineering work must be done to design the plant changes. Then, for many companies, Public Service Commission approval has to be secured. The process is long and demanding, and financial d emands are so great that no company can proceed precipitously. These constraints, and others, will determine what is “as soon as possible.” Permitting agencies need the flexibility to take them into account.

Response: The Agency acknowledges and appreciat es this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding the timeframes for implementing the rule that take into account the implementation timeframes of both rules.159

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0 209

- 0059

- 1 Organization: Public Service Company of New Hampshire Commenter Type: Electric Utility Company
Comment: Conversion to Closed

- Loop Systems Is Premature in Light of the Proposed Coal Combustion Residue (“CCR”) Regulations. If EPA’s finalized ash pond regulations prohibit or significantly limit the continued operation of ash ponds, some of those facilities could provide natural, cost

- effective locations for dewatering equipment and structures associated with certain closed

- loop, bottom ash handling technologies. Until the CCR rule is finalized, however, any cost/benefit analysis conducted to determine whether such closed

- loop systems may be appropriate for a particular plant are necessarily premature. Therefore, EPA should not mandate closed

- loop bo ttom ash handling until the CCR rulemaking is complete

. Response: The Agency acknowledges and appreciates the comment.



### Section 15.5

- Timing of implementation unclear/requires clarification

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0014

- 3 Organization: Pennsylvania Coal Alliance (PCA) Commenter Type: Advocacy Group
Comment: We encourage EPA to be clear and concise, and provide adequate timing with respect to implementation. Changes to treatment and ash systems are complex engineering challenges that require not only lead time for materials, design, permitting and testing, bu t also sufficient time to examine impacts on consistency and reliability of power generation and to ensure a cost

ef fective approach to compliance.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As

we ll as Unit VIII for a discussion regarding the timeframes for implementing the rule that take into account the implementation timeframes of both rules.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0019

- 5 Organization: American Electric Power (AEP) Commenter Type: Electric Utility Company
Comment: The compliance timelines of the proposed ELG and CCR rules overlap, making it difficult to conduct long

- range planning. The implementation dates of one rule could require that decisions be made regarding a facility without knowing how those decisions would affect compliance under the other rule. For example, the ELG rule proposes under all options that compliance with the rule be achieved as soon as possible with the first NPDES permit renewal after July 1, 2017. Assuming adoption of ELG Option 4a, a steam

- electric facility operating a160

wet fly ash system with an NPDES permit renewal date of July 31, 2017, must discontinue discharging fly ash transport water by that date. However, the agency makes reference to a compliance period that may be allowed by states. [Footnote 2: EPA Regulatory Impact Analysis for the Proposed Effluent Guidelines and Standards for the Steam Electric Power Generation Point Source Category. EPA

- 821

- R

- 13

- 005, [hereinafter EPA Regulatory Impact Analysis], April 2013.] Assuming a 3

- year compliance period, this same facility would have until July 31, 2020, to comply with the new ELG requirements. However, the CCR rule requires that all CCR ponds be relined or closed within five years of the regulation’s adoption. Assuming a CCR rule adoption year of 2014, the ash pond in question would have to be closed five years later in 2019, on a date occurring before that allowed by the proposed ELG rule. These inconsistencies need to be corrected and th e timelines for the two rules need to be coordinated and reconciled.

Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR la ndfills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding the timeframes for implementing the rule that take into account the implementation timeframes of both rules.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0020

- 2 Organization: Electric Power Generation Association (EPGA) Commenter Type: Trade Association
Comment: THE TIMING FOR IMPLEMENTATION IS UNCLEAR AND SHOULD BE CLARIFIED. EPA addresses the "timing for implementation" in various points throughout the Preamble to the Proposal. See , e.g. , 78 Fed. Reg. at 34442, 34458, 34467, and 34522. These statements are

con fusing and, in some cases, appear to conflict with one another (at least with respect to existing dischargers). In addition, various EPA Headquarters and Regional Office staffs have made statements regarding implementation timing, further complicating the matter. And, of course, the timing issues are further confused by the possible impact of EPA’s proposed "Voluntary Incentive Program" for stations that close coal combustion residuals impoundments or eliminate all process wastewater discharges. See , 78 Fed . Reg. at 34467 and 34468. The appropriate way to handle implementation timing is to be clear, and to provide an adequate length of time (subject to an extension by the permitting authority when additional time is appropriate due to site

- specific facts). E PA clearly recognizes that additional time will be necessary for many facilities, as it states that "EPA judges that, under this proposed approach, all steam electric facilities will have the proposed BAT limitations applied to their permits no later than July 1, 2022." As such, EPGA proposes that the new provisions be implemented as follows for existing sources: a. The new provisions will not be included or referenced in any permits renewed or m odified prior to July 1, 2017. b. The new provisions will be included in permits renewed after July 1, 2017, and dischargers will be provided a minimum of 3 years to ensure com pliance with those provisions. c. The 3 year compliance schedule may be extended to a maximum of 5 years from permit161

renewal date, based on site

- specific facts. This approach will ensure that all generators have adequate time to design, permit, and construct the necessary facilities.
Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As wel l as Unit VIII for a discussion regarding the timeframes for implementing the rule that take into account the implementation timeframes of both rules.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0021

- 9 Organization: The Large Public Power Council Commenter Type: Advocacy Group
Comment: The proposed rule is not sufficiently clear about the time frame for required compliance. The proposed rule states that permits or control mechanisms i ssued after the proposed rule’s effective date would be required to incorporate the effluent limitations. The new standards would apply after July 1, 2017 for new requirements for both direct and indirect dischargers. [Footnote 19: Id. Sources subject only to the current standards will be required to comply immediately u

pon promulgation of a Sources subject only to the current standards will be required to comply immediately upon promulgation of a final rule.] The proposed guidelines will be phased in thereafter, between 2017 and 2022 through NPDES wastewater discharge pe rmits and local pretreatment programs for Publically Owned Treatment Work (POTW) wastes, [Footnote 20: Id.] .]and that such phase

- in shall begin in permits “as soon as possible” in permits issued after July 1, 2017. [Footnote 21: 78 Fed. Reg. 34,460, 34,461 ( June 7, 2013).] However, the proposed rule does not make clear when affected EGUs will be required to comply after a permit renewal. In order to provide for a smooth transition to the new standards EPA will need to increase the clarity of the final rule. In particular, clarification is needed regarding compliance deadlines for affected plants

.

Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical cri teria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency also refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding the timeframe s for implementing the rule that take into account the implementation timeframes of both rules.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0025

- 13 Organization: Southern Company Commenter Type: Electric Utility Company162

Comment: For the regulated community to be able to adequately develop and implement a sensible compliance strategy, EPA must provide clarity as to the final requirements of both the ELG and CCR rules before requiring the industry to invest significant resources an d undertake major capital projects. It is only with clarity and the finalization of the proposed rules that a specific owner/operator will be able to evaluate their regulatory compliance options. For example, EPA should establish a framework for owners and operators to continue to use surface impoundments as a part of their compliance strategy before requiring changes in operations or facilities to comply with the CCR final rule, especially if the CCR rule requires retrofit or closure of surface impoundment s. Response: The Agency acknowledges and appreciates this comment. The commenter is referred to Unit VI of the preamble for a complete discussion of the technical criteria affecting CCR landfills and CCR surface impoundments covered by rule. The Agency al so refers the commenter to Unit V of the preamble for a discussion of the subtitle D regulatory approach. As well as Unit VIII for a discussion regarding the timeframes for implementing the rule that take into account the implementation timeframes of both rules.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0054

- 4 Organization: Earthjustice Commenter Type: Advocacy Group
Comment: EPA MUST ENSURE THAT BMPS FOR CCR SURFACE IMPOUNDMENTS ARE IMPLEMENTED AS SOON AS POSSIBLE TO PREVENT RELEASES OF TOXIC OR HAZA RDOUS POLLUTANTS TO SURFACE WATER. If EPA establishes BMPs for design and operation of CCR surface impoundments, EPA must ensure a means of timely implementation. In light of the substantial risk of failure and the deadly consequences that may ensue, the requirements to inspect, maintain and safely operate the nation’s 309 high and significant

- hazard imp oundments cannot be postponed. EPA can and must require compliance with the BMPs as soon as possible, but no later than three years from the effective date of the final rule. [Footnote 732: 33 U.S.C. § 1311(b)(2)(C),

- (D). See also discussion infra section XI.] EPA clearly acknowledges the imminent need for such requirement s. In the preamble, EPA stated the BMP requirements being considered by the Agency in this rulemaking and in the CCR rulemaking are critical to ensure that the owners and operators of surface impoundments become aware of any problems that may arise with the structural stability of the surface impoundment before they occur and, thus, prevent catastrophic releases, such as those that occurred at Martins Creek, Pennsylvania and TVA’s Kingston, Tennessee facility. [Footnote 733: 78 Fed. Reg. at 34,466.] In fact, EPA points out that the MSHA requirements were created as a result of the 1972 catas trophic slurry pond failure at Buffalo Creek, West Virginia that killed 125 people and destroyed or damaged nearly 1,000 homes. [Footnote 734: See id. at 34,467.] Yet the capacity for unregulated CCR impoundments to cause as much or greater harm than the B uffalo Creek disaster is a genuine threat that EPA must minimize as soon as possible. In fact, the amount of toxic material released from the Kingston dam in 2008 was 10 times the vo lume released at Buffalo Creek.163

Response: The Agency acknowledges and appreciates the comment , however this is outside the scope of the CCR rule.



### Section 16

– Consideration for constraints implementing requirements under both ELG and CCR rules

No significant comments were found in this sectio n


### . Section 16.1

– Multiple regulatory authorities as constraint to implementation

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0014

- 4 Organization: Pennsylvania Coal Alliance (PCA) Commenter Type: Advocacy Group
Comment: EPA should ensure that agency

- wide policies do not conflict with proposed rulemakings and allow the States their existing permitting authority with respect to the establishment of internal monitoring points and combined waste streams. For years, EPA has p romoted responsible water recycling/reuse not only for the electric power industry, but for other industries and the public in general. Proposed regulations that force the management of separate waste streams flies in the face of beneficial recycling and s tates’ rights to manage their programs. Response: The Agency acknowledges and appreciates this comment, however this issue is outside the scope of the CCR rule.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0025

- 8 Organization: Southern Company Commenter Type: Electric Utility Company
Comment: Southern Company supports EPA issuing a performance

- based, non

- hazardous regulatory program that gives states the authority to implement the program to oversee the management of CCRs. A non

- hazardous, state

- based CCR program also would complement a state

- implemented NPDES permit program governing discharges from surface impoundments that manage CCRs and other wastewaters. Any other option for regulating CCRs ultimately creates program conflicts at the state level and is likely to lead to inconsistencies re garding the regulation of the surface impoundment and its contents.
Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0026

- 23 Organization: Utility Solid Waste Activities Group (USWAG) Commenter Type: Advocacy Group
Comment: Creating a State

- Administered CCR Permit Program Would Facilitate Coordination Between Federal and State Authorities and Between the CCR Rule and the ELG Rule164

In order for there to be effective coordination and harmonization between the final CCR and ELG rules, it is imperative that the implementation and enforcement of the two set of new rules be in the hands of the same regulatory agency. For this to occur, however, it is necessary, as USWAG pointed out in its original comments on the CCR proposal, that the final CCR Subtitle D rule include a mechanism for qualified state programs that meet or exceed the federal controls to step in and directly administer the Subtitle D regulations. As currently proposed, however, the Subtitle D rul e would be self

- implementing, with enforcement of the regulations achieved through RCRA citizen suits. This means, as a practical matter, that whether a particular facility is complying with the final Subtitle D rule will be an issue primarily evaluated by citizen groups and the ultimate question of compliance

– i.e., how the regulations should be interpreted

– determined by a federal court in each particular enforcement action. This will result not only in patchwork interpretations of the CCR rule across t he nation, but also will greatly undermine any attempt for regulators to attempt to coordinate and harmonize the implementation of the final CCR rule with the final ELG rule. Response: The Agency acknowledges and appreciates this comment.



### Section 16.2

– Other implementation constraints

Comment Number: EPA

- HQ

- RCRA

- 2013

- 0209

- 0009

- 6 Organization: Dominion Resources Services, Inc. Commenter Type: Electric Utility Company
Comment: The Agency also asks for comments on "any practical constraints facilities may face in implementing any requirements under both rules." 78 Fed. Reg. at 34442. One of the practical aspects that we have considered is how implementation and enforcement of the two rules will occur between the EPA and state authorities. Under the proposed CCR rule, the Subtitle D and D Prime options stipulate self

- implementing requirements for compliance by the regulated party with no state oversight. Any issues of non

- complianc e would be addressed via an EPA audit or citizen lawsuit. By contrast, the proposed ELG rule will, in most cases, be administered through states with delegated NPDES authority. It stands to reason that true coordination and harmonization of the two overlap ping rules can only be accomplished through administration by the same regulatory agency. In the event there is a conflicting requirement, a single regulatory authority will be in a much better position to resolve the matter in an efficient manner as it is in their best interest to do so. For the regulated facility, they will be dealing with a single entity and so should receive consistent compliance guidance eliminating confusion and potential non

compliance issues. In addition, both the regulatory agency and regulated facility would benefit from a single agency performing inspect ions and ensuring compliance with the CCR rule and the ELG rule due to the overlapping requirements and covered topics. Compliance would be enhanced with the ability of the agency to be familiar with all aspects of the facility and to provide direct oversight and verification of potential corrective measures and remedies. Therefore to promote coordination, simplification, and harmonization of the CCR and ELG rules, we recommend tha t the Agency develop the CCR rule to include a mechanism that allows for state program administration instead of the self

- implementing approach in the current proposal.165

Response: The Agency acknowledges and appreciates this comment. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid waste management plans.