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 2014
i

Background

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

the management of coal combustion residuals (CCR) which was published in the Federal 

Register on June 21, 2010. This proposal, under the Resource Conservation and Recovery Act 

(RCRA), addressed the risks from disposal of CCR generated from the combustion of coal at 

electric utilities and from independent power producers. Two regulatory options were proposed. 

Under the first option, EPA proposed to reverse its August 1993 Bevill Regulatory and May 

2000 Bevill Regulatory Determinations regarding CCR and to list CCR as special wastes subject 

to hazardous waste regulations under subtitle C of RCRA when destined for disposal in landfill 

or surface impoundments. Under the second option, EPA proposed to leave the Bevill 

determination in place and regulate the disposal of CCR as non-hazardous solid waste under 

subtitle D of RCRA by issuing minimum national 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 options. The Agency

received over 450,000 comments on the proposed rule. The majority of the comments focused

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

or subtitle D. EPA also conducted eight public hearings 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 disclosure 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 OSWER 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 subtitle D of RCRA. This rule 

addresses the risks from structural failures of CCR surface impoundments, groundwater 

contamination from the improper management of CCR in landfills and surface impoundments 

and fugitive dust emissions. 

The Agency has developed seventeen volumes of 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 

subtitle 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.

Volume Topic

1 General Comments 

2

RCRA Subtitle D Regulatory Approach (Legal issues/Self-implementing 

Design/Reliance on Certifications by an Independent Professional 

Engineer/Recordkeeping, State Submissions, Posting to the 

Internet/Finance Assurance/Alternative Approaches) 

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 Action 
iii

Volume Topic

10 Closure and Post-Closure Care 

11 Additional Comments including Overfills/ Harmonization with ELG. 

12 Beneficial Use 

13 Risk Assessment 

14 State Authorities, Programs and Regulations 

15 Compendium of Damage Cases 

16 Regulatory Impact Analysis (RIA) 

17 EPA’s Assessment Program 

This volume summarizes additional comments received on overfills 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 landfills, 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 requirements 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 EPA 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-specific 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 type 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 static 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 questions 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 development 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 commenter 

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 potentially 
v

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 restrictions 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 meeting 

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 electric 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 of 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 consideration 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 applicable 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 consideration 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 function as a “cap” for the underlying unit; and
vi

 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 vertical 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 over 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 that 

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 they 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 monitoring 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 groundwater 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 installed outside the waste boundary of the 

combined footprints and be designed based on site-specific conditions; and
vii

 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 government 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 utility 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 the 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 proposed 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 described 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 Technical Standards Apply to Overfills

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 Company

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 Group
9

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 restrictions 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 increase 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 that 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 criteria 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 however 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 (Basin 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 Subtitle D rule in the early 1995. 
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, however 

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 impoundment 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 commenter’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

Comment 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 numerous overfills 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 existing 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 this 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 Kentucky

Commenter Type: State Government

Comment 4: The Agency 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 an especially important factor.

The proposed technical requirements for new units 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 concluded 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. Furthermore, the Agency agrees that slope 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 partial 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 be 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 expansions 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 concerns 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 CCR 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 criteria 
12

promulgated in the rule, the owner or operator must ensure that the unit 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 transport 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 with 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 providing 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 controlled, 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: The Agency appreciates and acknowledges this comment. The commenter is 

referred to Unit VI 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 rather 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 multiunit 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. 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, 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 
13

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-2012-0028-0076-4

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 engineered 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 an 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, 

cap and close within three years. This type of closure does not preclude the construction of an

overfill over the unit, provided that it meets all the technical criteria applicable to a new CCR 

units. 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 unit 

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 adequate to cap the unclosed portion 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 an 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

Organization: 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. Notwithstanding 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 is used by EPA in the NODA and are subject to state 

regulation in Wisconsin.

EPA Response: The Agency acknowledges and appreciates this comment. 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 achieved by increasing 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 promulgating specific technical criteria 

for overfills, rather the Agency has concluded that the technical criteria for CCR landfills and 

CCR surface impoundments 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 maintenance of an 

overfill, the Agency has chosen to rely on the technical criteria established for CCR surface 

impoundments and CCR landfills 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 inplace 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 any 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 single 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 

differential 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 that 
15

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 are 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 landfills, 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, 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—0028-0095-9

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: See 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 notice 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 

disposal 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 35128 (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 capacity (which often requires transporting CCR 

significant distances away from the generating station). Much like all CCR units permitted and 
16

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 flexible 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 

achieved by increasing the height of the surrounding embankment or slope. Given the lack of 

information obtained on the design, construction and maintenance of an overfill, the Agency has 

chosen to rely on the technical criteria established for new CCR landfills 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 address 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 

environment.

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 Association
17

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 for 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, and 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-case 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 impoundments. Absent any documented data that would support a decision to 

allow this type of activity, the Agency has concluded 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

Commenter 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 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: 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 

rule preamble, EPA explained the rationale for applying the provisions to existing CCR surface 

impoundments, and the commenters have submitted nothing to rebut that rationale. Thus, EPA 
18

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 surface impoundments sited in these sensitive areas 

would exceed acceptable levels. In addition, the 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 groundwater 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, whether 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 requirements 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 indicative 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. The 

commenter is also referred to Unit VI that discusses the technical requirements of the rule. 

II. Approaches for Overfills

No substantive comments.

III. Location Restrictions

Comment Number: EPA-HQ-RCRA-2012-0028-0060-13

Organization: Utility Solid Waste Activities Group (USWAG)

Commenter Type: Trade Association
19

Comment Number: EPA-HQ-RCRA-2012-0028-0064-8

Organization: Florida Electric Power Coordinating Group Inc, (FCG)

Commenter Type: Trade Association

Comment 19: The construction of overfills is more akin to the vertical expansion of a preexisting 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 construction of these overfill units through its regulatory 

scheme for existing units rather than 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 addressed 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., 

wetlands, 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 for 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 the 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 increasing 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 the 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 

applicability 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 should 
20

not apply. Instead, the existing facility requirements should 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 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. 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. 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, 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 Utility 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 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. Such units are 

essentially vertical expansions of existing units and, as such, should not be classified 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. Overfills (i.e., new CCr landfills constructed on top of closed CCR surface 

impoundments) will need to comply with both the requirements applicable to the closure of 
21

surface impoundments or landfills, and with all of the technical requirements applicable to new 

landfills. 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, 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 assurance 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 

proposed 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: Overfills 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 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 all the technical requirements 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 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 Agency is not prohibiting the construction of new CCR landfills over CCR surface 

impoundments. 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 closing first the underlying 

impoundment in accordance with the closure criteria before constructing 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 an 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 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).

EPA Response: Overfills 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 with 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 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. 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 with 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 overfill 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 rule 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. Overfills 

will need to comply with both the requirements applicable to the closure of surface 
23

impoundments or landfills, and with all of the technical requirements applicable to new landfills. 

Because overfills are considered to be “new CCR landfills,” they must comply with all the 

technical 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 will all need to be evaluated 

independent of the underlying CCR disposal unit to ensure that the overfill design is 

environmentally protective

IV. Liner and Leachate Collection Requirements

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 requirements 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 requirement 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 would 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 

standards.

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 subject 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 the 
24

technical standards for CCR landfills are sufficiently flexible that no modifications are necessary 

to accommodate overfills.

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 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 concerns and continue to implement a successful 

regulatory 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., faster 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, Section 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 landfill. 

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 current 

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 
25

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 CCR 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 CCR 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-2012-0028-0064-6

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 exceed, 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 

early 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 Unit VI of the preamble for a discussion of the 

technical 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 promulgating 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 Company
26

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 additional 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 technical 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 composite 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 believes 

that if the underlying unit meets or exceeds any of the standards in the new proposed rule (such 
27

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 CCR

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 designs 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. Construction 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 and appropriate design by experienced professional engineers and geologists.

Response: The Agency acknowledges and appreciates this comment. The Agency consider the 

underlying CCR management unit and the unit covering this unit to be two separate units subject 

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 Association
28

Comment 37: 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. 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 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 overfill 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

Organization: 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 include 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 CCR landfills 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 rule 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 

finalizing, 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 monitoring 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 agencies 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 existing landfill and the 
30

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 causing 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 groundwater 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 boundary. 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 proposed 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 allows 

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 complying 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 where 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 collection 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 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 
31

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 current 

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 referred 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. As 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 overfill. 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 existing 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 boundary 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 groundwater 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 should 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 

referred 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 Company
33

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 requirements in the proposed rule are adequate for 

overfills.

EPA Response: The Agency acknowledges and appreciates this comment. The commenter is 

referred 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 failure 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 monitoring 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 

contamination.

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 referred to the groundwater monitoring section of the preamble which can be 

found in Unit VI as well as the “Unified Guidance” referenced 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 the 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 should 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

Comment 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 proposed 

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 CCR surface 

impoundment must be closed in accordance with the closure requirements of the rule before a 

overfill can be designed and constructed. 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, 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 set 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 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 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.

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 unit 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 monitoring 

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, the 
36

placement 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 new CCR disposal unit that is subject to all 

of the requirements of new landfills. Design considerations 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 to ensure that the 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

Organization: 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 effect 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. Placement 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 new 

CCR disposal unit that is subject to all of the requirements for new landfills. Design 

considerations 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 to 

ensure that the 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 that 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 will 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 closed 
37

surface impoundment, the surface impoundment would have been adequately dewatered prior to 

its construction. It is the presence of the water within the surface impoundment 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 erroneous 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 and annual 

inspections conducted by a qualified professional engineer. These inspection must identify and 

address among other things, any appearances of an actual or potential structural weakness of the 

CCR unit in addition to any existing conditions that are disrupting or have the potential to disrupt 

the operation and safety of the CCR 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 Kentucky

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 60: 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 on 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 requirements 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 Utility 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 biannual) 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. 

Comment 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 inspection 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 subsequently 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 

care, 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 

include 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 Company
39

Comment 63: The proposed CCR Rule would require weekly inspections by qualified personnel, 

in addition to annual inspections by an independent registered professional engineer. Dynegy 

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 structural 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 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. PPL also support the application of 

these requirements 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. 
40

Comment Number: EPA-HQ-RCRA-2012-0028-0109-6

Organization: Hoosier Energy Rural Electric Cooperative, Inc. (Hoosier)

Commenter Type: 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 and that actual and potential structural 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 from 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 Assessment 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 qualified 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 all 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 disposal 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, structural 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: The 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-valley 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 acknowledges 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 Interception 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 Regulatory costs

Section 9.3.13 Cost benefit analysis in the ELG proposed rule related to CCR

Section 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 coordination

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 impoundments
43

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 Feasibility 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 Regulatory 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 implementation 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 constraints
44

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 category. 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 requirements 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 rule, EPA requested comments 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 Assessment
45

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 referenced 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 that 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 contamination 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 table; however, readily available information shows 

that many CCW do, in fact, extend directly into the water table and that there are many upgradient 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 

mounding 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 without 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, could 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 landfills (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 this 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 coordination 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 provisions 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, including 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 regulatory 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 taken 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 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 resolution 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 otherwise be unable to effectuate in the other proceeding.

Other commenters stated that 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 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 implementation 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 the 
48

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 writer 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 ELG 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 stated 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 waters 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 

discourage 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 the 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 operating 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 requirements, 

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, closure requirements, compliance 

obligations, liner retrofit requirements and state implementation. 

Coordination of CCR Substantive Requirements with ELG Requirements

Commenters encouraged EPA to coordinate CCR substantive requirements for CCR units with 

ELG 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 coordination. 

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 construction 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 dry 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 alternative 

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 for 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 have 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 discharged. 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 dry 

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 that 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. They 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 stated 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., closed 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 

additional 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 compliance timing reflecting 
51

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 incentives 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 should 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 undertake 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 additional time to eliminate discharges of pollutants waste streamby-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 

close 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 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.

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 CCRs, 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 pending 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 in 
52

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 strengthen 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 failed 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 

revisions 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 

combustion 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 impoundments.

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-threatening 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 safeguards 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 Surface Impoundments
53

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 necessary 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 supported 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 

technologies 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 process 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 compliance 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. Coordinate 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 consideration 

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 other forthcoming EPA rules 
54

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 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 and 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. This includes clarification of the 

timeframe for compliance under voluntary 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 it 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. Such 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 alternative 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-related 

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 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 construction of new wastewater treatment capacity. Others noted 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 

final rule.

Consideration for any other practical constraints facilities may 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 

with 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 state 

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-implementing 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 requested 
56

comments related to the intersection between the proposed ELG and CCR rules. This volume of 

the “Comment Summary and Response” 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 allow 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; comments 

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 

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 agree 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 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 reflected in the final CCR rule.

RCRA Subtitle D Prime Option is the Only Option Consistent with the ELG Rule and Should be the 

Selected CCR Rule Option

This 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 final 
57

ELG requirements, and in turn “provide strong support for a conclusion that regulation of CCR 

disposal under RCRA Subtitle D would be adequate”[Footnote 55: Id.].

This 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 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 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: This 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-2013-0209-0033-3

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 affect 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 Group
58

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 an 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 addressed) 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: This 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-2013-0209-0048-1

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: This 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 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: This 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: This 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

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: This 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. This 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-2013-0209-0054-16

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. This 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-2013-0209-0055-1

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 evaluation 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. This 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 discussion 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 as 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 assessment 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 directly intersect the water table, however, readily 

available information shows that many CCW impoundments in North Carolina (and likely 
61

elsewhere) do, in fact, extend directly into the water table.B. 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 simply cannot model. Our own sampling, 

performed in partnership with Duke University, is finding elevated levels of numerous toxic 

metals associated 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. This 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, which 

includes 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. This 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-2013-0209-0054-9

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. This 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 impoundments
62

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. This 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 6.9.4 – 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. This 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 

CCR 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 agree 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 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 reflected in the final CCR rule.
63

RCRA Subtitle D Prime Option is the Only Option Consistent with the ELG Rule and should be 

the Selected CCR Rule Option.

Response: The Agency acknowledges and appreciates this comment. This 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-2013-0209-0009-4

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 coupled 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 Subtitle D Prime option in the final CCR rule.

Response: The Agency acknowledges and appreciates this comment. This 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-2013-0209-0016-17

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 final 

ELG requirements, and in turn “provide strong support for a conclusion 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 be the case, EPA's

current thinking is that, the revised risks, coupled with the ELG requirements that the Agency
64

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.

Response: The Agency acknowledges and appreciates this comment. This 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

Organization: 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 repeatedly

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 determine 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. This 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 

Rudinski, 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 that 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.]Response: The Agency acknowledges 

and appreciates this comment. This 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

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 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 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.

Comment Number: EPA-HQ-RCRA-2013-0209-0027-3

Organization: Kentucky Department 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 assessment 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 surface 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 appearsthat 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 coordinated.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 proposed 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-HQRCRA-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 assess 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-2013-0209-0054-15

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.Lack of all safeguards must 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 assessment 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. This 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 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 comments 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: 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-2013-0209-0014-5

Organization: Pennsylvania Coal Alliance (PCA)

Commenter Type: Advocacy Group

Comment: 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.

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 regulate
68

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

Commenter 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 requirement” 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 unlikely 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 Company

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 compliance 

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 Company

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 Electric 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 activities (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 the 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: Electric 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 appropriate 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 practicable, coordinating implementation and 

compliance timelines to mitigate the collective impact 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 Generation 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 

contradict 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

Organization: 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 regulations 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 before such a decision 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: Xcel 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 requirements 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

Commenter 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 process 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 the 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: Utility Waste Activities Group (USWAG)

Commenter Type: Advocacy Group

Comment: 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 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-2013-0209-0029-4

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 

supports 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 direct 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-payers, as regulated utilities do.

Executive Order 13563 directs EPA to “tailor its regulations 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 moves 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, and 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: EPA-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 duplication. 

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 EPA 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 relationship 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 rules 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 both regulations will be crucial.

One suggestion that would help with the coordination concerns would involve separating the scope of the 

two regulations. Regulating disposal under the CCR rule and limiting the ELGs to treatment of the waste 
73

streams, which would include the regulation of surface impoundments, would leave only the timing 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 setting 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 affect 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 be 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 resolution 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 otherwise 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 a 
74

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 anticircumvention 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 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 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 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 compliance 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 leachate 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 environmental 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 without understanding the 
75

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 referred 

to Unit VIII for a discussion of the relationship between the RCRA rule and the ELG Rule.

Comment Number: EPA-HQ-RCRA-2013-0209-0039-6

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 passed 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; 

instead, such issues should be addressed in the CCR rulemaking and by 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 rule 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 Electric Corporation (BREC)

Commenter Type: Electric Utility Company

Comment: ELGs should avoid duplicative regulatory involvement with the Coal Combustion Residuals 

(CCR) rule.

In the ultimate adoption of final ELGs, we request that EPA avoid duplicative requirements across both 

the water and waste realms contained 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 and 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 the 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 redundant, 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 overall 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 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-2013-0209-0052-8

Organization: Duke Energy

Commenter Type: Electric Utility Company

Comment: Utilities need time to coordinate the implementation 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 requirements. 

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 facility 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 proposal.

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 Company
77

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 Environmental 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 consider 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 should 

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 is best left for that 

rulemaking to avoid the possibility of duplicative 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 things, 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 first 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 ENVIRONMENT.

1. Federal regulations are necessary because state laws fail to require safe closure and postclosure 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 ObjectivesAs 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 monitoring 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 comments 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 state’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 disposal 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 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-2013-0209-0018-3

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 being 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 of 
80

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 compliance 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 discharge 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 demonstrate 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 some 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 use 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 disposal 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 ARBITRARY, 

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 

stringent 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 compliance 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 promulgating 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 ELGs 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 a 
82

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 anticircumvention 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 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 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 FGD 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 would 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 compliance 

monitoring at the outfall. Many power plants discharge numerous wastewaters (except oncethrough 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 plants 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-use 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 more 
83

water from nearby rivers, aquifers or municipal supplies 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 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-2013-0209-0043-2

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 stringent 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 regulatory 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 conservation 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 

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 disposal 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 of 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 waste 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 concept 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 utilizing 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 also 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 cooling 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 impossible. 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. The 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 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 the final cover. These are factors that would be considered in the approach using 
85

the Environmental Performance Standards but would have specific times 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 additional 

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. 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-2013-0209-0035-1

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 oneanother 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 regulation.

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.

Comment 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 regulatory agencies, which have a CCR permit program that meets or 
86

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 stateapproved 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

Section 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 proposed 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 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-2013-0209-0016-15

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 with 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 within 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 commenter 
87

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 discharging 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 Subtitle 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 

subtitle 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 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.
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 surface 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 

rule. 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 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. Comment: Since the 

proposed ELGs do not contemplate any of the waste streams as generating 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 water 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 option 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 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-2013-0209-0025-2

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 complements 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 this 
89

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-2013-0209-0025-9

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 flexibility 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 

groundwater 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 surface 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. 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 corrective 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 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 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: 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.
90

Comment Number: EPA-HQ-RCRA-2013-0209-0026-11

Organization: Utility Solid Waste Activities Group (USWAG)

Commenter Type: 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 option 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 CCR 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 

wastewaters. 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 rules 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 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-2013-0209-0026-14

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 is 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 assessment], 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. 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 also 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 Subtitle 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 

select 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 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-2013-0209-0028-3

Organization: Tri-State Generation and Transmission Association, Inc. (Tri-State)

Commenter Type: Electric Utility Company

Comment: The RCRA Subtitle D Prime option is the most appropriate option among those 

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. 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-2013-0209-0040-7

Organization: MidAmerican Energy Holdings Company (MidAmerican)

Commenter Type: Electric Utility Company
92

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 surface 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/industrial/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 30: 

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.” Some 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 health 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 made 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, the 

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 health 
93

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 nonhazardous waste under Subtitle D of RCRA remains the appropriate approach. However, even if 

EPA were to conclude that CCRs are to be regulated under 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 Agency 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 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-2013-0209-0049-6

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 explained 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 action 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 

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 steam electric 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 final 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 established 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 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-2013-0209-0052-3

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 coordinate 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.

Comment 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 the 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 that 
95

subjecting existing CCR 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.

Comment 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, 2010)) 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 standards 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 Company
96

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 wastewater, 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 estimates 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 chemical 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 the 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 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 IX of the preamble for a discussion on how EPA expects states to 

incorporate the CCR rules into state solid waste management plans.

Section 14.1.1.1 – Feasibility of zero discharge, general
97

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 

unwarranted 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 transport 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 existing 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 the 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 

will 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 construct 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 cost 
98

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 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. 

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 handling. 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: 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.

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 then 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 options 
99

would impose significant cost with minimal environmental benefit: retrofits of new material 

handling equipment in 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 the 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 begin 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 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 discharged.

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-2013-0209-0019-7

Organization: American Electric Power (AEP)

Commenter Type: Electric Utility Company

Comment: State requirements may necessitate the accelerated closure of fly ash ponds that 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 rule 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 guidelines 

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 discontinued 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 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 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-2013-0209-0029-1

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 welldocumented, it is the technology used by a majority of facilities, and it is entirely supported by 

the 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 Utility Company
101

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 handling 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 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 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 bottom 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 Group
102

Comment: EPA Should Maintain the Option to Impound Fly Ash Transport Water from Existing 

Units in Most 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 forms 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 transport 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 continued 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 implementation 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 water, 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 section 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 cost-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 specific

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 pollutants 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 the 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, and facilitate implementation of engineering, 

financial and permitting activities.

Section 14.1.2.1 – Feasibility of 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 Company
104

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 toward 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 

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 14.2 - 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 omitted 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 focus 
105

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 commenter 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 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 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.

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-2013-0209-0025-7

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 regulated 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 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 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 facilities 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; however, if 
106

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 limitations 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 elevation 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 these 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 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.

Comment Number: EPA-HQ-RCRA-2013-0209-0026-17

Organization: Utility Solid Waste Activities Group (USWAG)

Commenter Type: Advocacy Group

Comment: The CCR Proposal’s structural stability requirements are modeled on the longstanding Mine Safety and Health Administration (“MSHA”) dam safety requirements and 

require, among other things, an annual certification by an independent 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 structural 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 necessary. 

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 hazard 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.

Response: 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 meaningful 

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 potential 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 regulations, 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 

same 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 condition 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 could be inspected 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 which have a high hazard 

potential. EPA sponsored an intensive nationwide inspection program following the 2008 TVA 

impoundment 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 inspection reports, the 

deference is likely due to the fact that the risk for 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 would 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 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: The steam electric industry 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 

guidance 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 to 

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 reduce 

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 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-2013-0209-0040-10

Organization: MidAmerican Energy Holdings Company (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 regulatory 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 risk, 

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 significant 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 

requirements 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 complexity 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 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 specific 

structural integrity 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 

WHERE 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 no 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 post-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 of 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 whether 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 impoundment 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 dam/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 criteria 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 costs 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 estimated 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 Company
113

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 imposing 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 rule.

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 

concerning 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 

overall 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 Company

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 must Be Clarified.
114

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-2013-0209-0019-11

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 Best 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 courts 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, data 

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 management 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.

Response: 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 surface 
115

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 that 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 Should 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 authority 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 program 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 

impoundment 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.

Comment 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 integrity 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 Group
116

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 two 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 actions, 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 regulations 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 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 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 

included 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 regulation 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 present 

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. 

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.

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 continue 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 Company
118

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 consequently 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 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 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 Institute (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, constructing, 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 action 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 

underlying 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 appropriate 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 what 
119

requirements are being considered, and take comments. Whatever BMPs EPA is considering, 

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 “process 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 Concept 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 demonstrated 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 complexity 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 coalcombustion residual impoundments, which are separately regulated.

Response: The Agency acknowledges and appreciates the comment

Comment Number: EPA-HQ-RCRA-2013-0209-0038-4

Organization: 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 comment

Comment Number: EPA-HQ-RCRA-2013-0209-0038-5

Organization: Edison Electric Institute (EEI)

Commenter Type: Trade Association
120

Comment: In addition, EPA should leave regulation of surface impoundments to the CCR rule. 

At a minimum, EPA must sufficiently describe and provide an opportunity for meaningful 

comment on any BMPs for surface impoundment requirements, as well as sufficiently consider 

landfill construction implications 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 ImpoundmentsEPA 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 conflicts 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 avoiding 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 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 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 PondsEPA’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 proposed 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

Organization: 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 that 

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 discharges 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 

Administrator 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 specific 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 specific 
122

structural integrity 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 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-2013-0209-0054-3

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 permits, 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 any 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 inspections 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 and 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 surface 
123

impoundments 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 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-2013-0209-0059-3

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 knowledgeable 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 operators 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 

contemplating 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 pursuant 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: EEPa acknowledges and appreciates this comment.PA stated that consistent with 

RCRA section 1006(b), effective coordination of any final RCRA requirements with the ELG 
124

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 Type: 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 extended 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 proposal. 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 comments 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 definition 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 that 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 or 
125

surface impoundments containing 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 captured 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 has 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 inefficient 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 combustion 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 subject 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 United 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 regulatory 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 Leachate” 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 disposed 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 beneficial 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 chemical 

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 feasible 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 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 is best left for that rulemaking to avoid the 

possibility of duplicative or inconsistent regulation.
127

Response: EPA’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 avoidable 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 maintain 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 entities 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 

coordinating 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 criteria 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 Company

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 residual 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” wastewater 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 compliance 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 handling.

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 final rule. This is particularly true when one considers the additional 

costs associated with reengineering and developing new alternatives for handling other low 
129

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 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 permitting 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 subject 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 leachate 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 wastewaters 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 technologies 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 process 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 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.
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 would 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 available 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 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 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-2013-0209-0023-4

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 performance 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, should 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 conveyance, to waters of the US.

We fully 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, limited flows. However, with 

potential burden associated with the proposed NSPS for leachate. While § 423.12(b) clearly 
131

distinguishes the 2014 NSPS standards from those established in 1982, there remains some 

uncertainty regarding how EPA and delegated State agencies 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 treatment 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 clarifications 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 subject 

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 (including, 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 the 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 no 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. 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-2013-0209-0030-2

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 within 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 

addressing the technical criteria of the rule do not specifically address comments on the ELG 

proposed regulatory options.

Comment Number: EPA-HQ-RCRA-2013-0209-0035-1

Organization: Minnesota Power (ALLETE)

Commenter Type: Electric Utility Company

Comment: 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 generated 

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 consistent 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. As 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, 35,252 
133

col. 3 (June 21, 2010)) 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. XIII. Constructing New Landfills Would Be Costly and Time-Consuming.

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 

addressing the technical criteria of the rule do not specifically address comments on the ELG 

proposed regulatory options.

Comment Number: EPA-HQ-RCRA-2013-0209-0038-8

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 compliance 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 leachate 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 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 ELG 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 noted 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 

displaced 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 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 

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 that 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

Organization: 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 operate 
135

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 facilities 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 capacity 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 

that 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 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 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 

specifically 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 begin 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 Number: 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 new 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 existing 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 position 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 Energy 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 types 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.

Section 15.1 – Determining time needed for operational changes to comply with ELG before 

requiring decision to close or retrofit surface impoundment under CCR
138

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 the 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 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 decision 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. 

Comment Number: EPA-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 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 elements 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 request that the Agency 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.

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 decision 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. In 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 40 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 EPA 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 affect 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 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 final ELG 

requirements, 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 ponds (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 wastewaters (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 allow facilities compliant with ELG requirements to exhaust their 
140

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 understanding 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 and 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. The 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 EPA 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, 2010)) 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 proposed 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 design, 

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 Estimates for the Mandatory 

Closure of Surface Impoundments Used for the Management of Coal Combustion Byproducts at 
141

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 

construction 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 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-2013-0209-0020-6

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 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. This is particularly true when one considers the additional 

costs associated 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 handling 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 

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-2013-0209-0021-13

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 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 regulations 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 before such a decision is made.
142

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 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 

permanently 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 legacy 

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 significant 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 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 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 facilities 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. 

Others have not installed dry fly ash handling capability. Integration of a dry fly ash handling 
143

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 for 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 those 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 proposals 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 in 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 with 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) is 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 facilities 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. Xcel 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 ensure 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 impoundments 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 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-2013-0209-0025-12

Organization: Southern Company

Commenter Type: Electric Utility Company

Comment: EPA Must Coordinate the Timing and Implementation of the CCR and ELG RulesEPA 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 

timeline 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 strategy 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 

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-2013-0209-0026-18

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 corrective 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 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 units 
145

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 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.” 78 Fed. Reg. at 34441. EPA’s “goal is that, consistent 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—prior 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 requirement 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 will 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 impoundment 
146

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 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-2013-0209-0027-1

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 their 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 described 

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 operate 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 facilities 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 amount 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. As 
147

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-2013-0209-0029-2

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 existing 

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, 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 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 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.

Many factors go into determining a reasonable compliance schedule – 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 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. 
148

Comment Number: EPA-HQ-RCRA-2013-0209-0038-3

Organization: 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 requirements 

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 prevent 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 impoundments 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 

requirements 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 timeline 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 absolutely 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 will 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 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 rule. [Footnote 33: Id. at 34442.] Given this objective, any implementation and 

corresponding compliance 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 

facility.

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-2013-0209-0058-3

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 

rulemaking. 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 technical criteria affecting CCR 

landfills and CCR surface impoundments covered by rule. The Agency also refers the 
150

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-2013-0209-0063-1

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 needed additions/modifications.

Giving permit writers the flexibility to allow sufficient time for plant modifications that may 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 may be required by the new 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 operational 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 compliance periods would start. EPA is considering the establishment of a 

voluntary incentive program that would provide more time for proposed BAT requirements to be 

implemented (78 FR at 34458). Two additional years would be granted to implement required 
151

treatment technologies if all CCR surface impoundments at a facility (excluding leachate 

impoundments), would be dewatered, closed and capped. Five additional 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 when 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 compliance 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 willing to close coal combustion 

residual (CCR) surface impoundments at participating facilities 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, facilities 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 programs. Both the 2-year and 5-year extensions are reasonable in light of the capitaland 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 flexibilities,

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. EPA 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 Association
152

Comment: Clarification of Voluntary Incentives Timing is NeededEPA 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 water). 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 limitations, 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 with 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 the 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 manner 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 construction 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 Closure 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 elements 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 request that the Agency 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.

Coordination of Time lines for ImplementationAnother 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 impoundments 

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 regulated 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 decision 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 fully 

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 that 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 activities and can 

be met with delays and opposition that can easily result in the landfill taking 8-10 years or more 
154

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 surface 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 faced 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 Subtitle 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 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-2013-0209-0016-20

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 planning 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 process 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 requirements 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 continue 

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 criteria affecting CCR 
155

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-2013-0209-0016-3

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 rules.

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-2013-0209-0026-2

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 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-2013-0209-0026-22

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 facility 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 CCR 
156

impoundments were compelled 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 

ancillary 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 waters 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 significantly 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 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-2013-0209-0036-5

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 coordination 

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 

requirements 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 plant. 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 of the steam 
157

generation system.

Water and wastewater flows that 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 chemical 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 has 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 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-2013-0209-0036-8

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 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-2013-0209-0056-8

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 apply 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 expenditures 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 comply 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 demands 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 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. 
159

Comment Number: EPA-HQ-RCRA-2013-0209-0059-1

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 bottom 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, but also sufficient 

time to examine impacts on consistency and reliability of power generation and to ensure a costeffective 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 

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-2013-0209-0019-5

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 a 
160

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 the 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 

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-2013-0209-0020-2

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 

confusing 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). EPA 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 modified 

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 compliance with those provisions. 

c. The 3 year compliance schedule may be extended to a maximum of 5 years from permit 
161

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 

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-2013-0209-0021-9

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 issued 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 upon 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 permits 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 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-2013-0209-0025-13

Organization: Southern Company

Commenter Type: Electric Utility Company
162

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 and 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 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. 

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 

HAZARDOUS 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 impoundments 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 

requirements. 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 

catastrophic 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 Buffalo 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 volume 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 section.

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 

promoted 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 states’ 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 regarding 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 Rule
164

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 rule 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 the 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-compliance 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 overlapping 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 noncompliance 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 that 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.