1



# 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 9 : Groundwater and Corrective Action

December 20142

Background

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

the management of coal combustion residuals (CCRs) 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 CCRs 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 CCRs 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 nat ional criteria. Both options would require

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

re ceived 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 additi onal 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 a vailable 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, EP A/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. The telephone number for the Public Reading Room is

(202) 566

– 17 44, and the telephone number for the OSWER Docket is 202

– 566

– 0276.3

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

addresse s 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 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 RCR A, 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/Ins pections/Run

- on

Run

- off

8 Operating Criteria: Air Criteria

9 Groundwater and Corrective Action

10 Closure and Post

- Closure Care

11 Additional Comments including Overfills/ Harmonization with ELG

.

12 Beneficial Use4

Volume Topic

13 Risk Assessment

14 State Authorities, Programs and Regulations

15 Compendium of Damage Cases

16 Regulatory Impact Analysis (RIA)

17 EPA’s Assessment Program



### Comments and EPA Responses on Groundwater Monitoring and Corrective Action

EPA largely based the proposed groundwater monitoring requirements on those for MSWLFs in the 40 CFR part 258 criteria, albeit with certain modifications to tailor the requirements to the case at hand. In particular, the possibility that a state may lack a permit program for CCR disposal units made it impossible to include some of the alternatives available in 40 CFR part 258, which establish alternative standards that allow a state, as part of its permit program to tailor the default requirements to accou nt for site specific conditions at the individual facility. EPA also sought to tailor the proposed requirements for CCR units, by incorporating certain provisions from the interim status regulations, which operate in the absence of a permit, and by includi ng in several of the proposed requirements, a certification by an independent registered professional engineer that the rule’s requirements had been met.

The majority of the commenters supported “appropriate groundwater monitoring

standards for CCR waste management units” and the development of such standards under a RCRA subtitle D framework. Comments were received on various parts of the groundwater monitoring scheme laid out in the proposed rule. The majority of comments received requested EPA to provi de “more flexibility” to the proposed requirements. Many commenters wanted the states to be more involved with the process and provided comments suggesting that additional “flexibility,” such as is provided in the 40 CFR part 258 regulations for MSWLFs as part of the permitting process, be extended to CCR units. For example, commenters wanted states to have the authority to add or drop monitoring constituents; approve alternatives to schedules; modify the number of wells needed; allow variances; allow alte rnatives to the point of compliance specified in the rule; employ alternative methods to detect potential groundwater contamination, such as leak detection systems; allow alternatives to the statistical methods used to determine whether groundwater contami nation has occurred; and to replace the qualified professional engineer role in the certification process.

Many of the commenters’ requests related to alternatives that would be less stringent than the minimum criteria laid out in the proposal and were b ased on arguments that state regulators (or facilities) should be allowed to “tailor” those requirements to sites that did not need those particular requirements. As explained at length in the proposal, EPA is concerned that provisions allowing such modif ications are particularly susceptible to abuse, since in many cases the provisions could allow substantial cost avoidance. In the absence of a mandated state oversight mechanism to ensure that the suggested modifications are technically appropriate,

these kinds of provisions can operate at the expense of protectiveness. In Unit II of the preamble to the final rule, EPA explains the extent of our authority to establish criteria under RCRA5

sections 1008(a)(3) and 4004(a), including the implications associat ed with the lack of any authority to establish a program analogous to part 258, which relies on approved states to implement the Federal criteria through a permitting program. As a result of the statutory structure, this rule is self

- implementing and is de signed to operate to ensure that facilities will manage CCR in a manner that achieves the 4004(a) standard even in the absence of any regulatory entity available to judge the reasonableness of the desired alternatives. While some states currently do have programs for the regulation of CCR, which in some cases may be more stringent than this final rule, the federal program must be defensible on the record in place at the time the final rule is adopted. Based on the current rulemaking record, in most cases EPA lacked the information necessary to defend the commenters’ less stringent alternatives (i.e., the commenters’ requested “flexibilities”) to the minimum technical criteria specified in this rule for these units. Under both the subtitle C and part 258 pr ograms, EPA can rely on subsequent proceedings to develop the information necessary to support such tailoring. This is clearly neither contemplated nor authorized under the regulatory program relevant to this rule.

In addition, given the extremely techni cal nature of these requirements, EPA remains concerned that such provisions would render the requirements appreciably more difficult for citizens to effectively enforce. Nevertheless, working within these constraints this rule specifically allows the PE to design a system that accounts for site conditions within the parameters of the minimum technical criteria, and EPA has added language to the regulation that expressly clarifies this. Moreover, states that have programs can continue to impose more

strin gent requirements, and thus can require, for example, additional monitoring wells, monitoring of additional aquifers, and inclusion of additional parameters to the detection monitoring list or the assessment monitoring list. The following discussion addres ses in more detail the technical requirements under groundwater monitoring and corrective action in the final

rule.

Section 3.5.1

- Effective dates, including comments on effective dates might vary as states adopt rule individually (35190

- 35191)

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06203

- 3 Organization: Arizona Public Service Company (APS)

Commenter: Scott Davis Commenter Type: Electric Utility Company

Comment Excerpt Text: The Compliance Timeframe for Facilities on Indian Lands Would Be Impossi ble to Meet.

Because APS's Four Corners Plant is located on Indian Lands

- where no state adoption of new Subtitle C rules would be required

- within a mere six months of the effective date of such rules, the plant would be required to submit a Part A RCR A permit application (40 C.F.R. § 270.10), and be in full compliance with all of the requirements for an Interim Status Hazardous Waste Treatment, Storage, and Disposal Facility. See 40 C.F.R. § 265. This would include compliance

with: the interim status s tandards, permitting requirements for facilities managing CCRs, generator and transporter requirements, including manifesting, surface impoundment stability6

requirements, and the Land Disposal Restriction (LOR) standards for non

- waste waters in 40 C.F.R. § 268.

The almost instantaneous compliance period for a facility on Indian Lands would be impossible to achieve and, as a result would place APS in the untenable position of either operating the facility in non

- compliance with RCRA or ceasing operations.

EPA has acknowledged that it generally takes two to five years (if not longer) for authorized states to adopt more stringent Subtitle C rules, and for those rules to become federally enforceable. 75 Fed. Reg. at 35159. Consequently, in states with RCRA aut horization, the effective date of a Subtitle C rule would generally be delayed two to five years. Thus, for sake of example, assuming the EPA promulgates a final rule on January 1, 2012, the rule would not

become effective in authorized states until as lat e as January 1, 2017. In Indian Country the requirements would take effect July 1, 2012.

In order to meet this implementation schedule and comply with the § 265 requirements, APS would have to first assume that EPA will promulgate a final rule under Subti tle C, and second begin the engineering and design work to modify systems downstream from the point of generation

- presumably the boilers

- well in advance of issuance of the final rule. In other words, that effort would have to begin now.

The necessary modifications would then have to be worked into overhaul/outage schedules over a period of years, not months. That is, these are complicated and time consuming operational retrofits that cannot be accomplished in a short of amount of time. Examples of syst em modifications that would be required include, but are not limited to, reconfiguring the bottom ash management system under the boilers and in the dewatering bin areas; reconfiguring the fly ash management system (e.g., enclosing bag houses and ash loadi ng areas to meet RCRA container

building standards); and reconfiguring FOG by

- product management and waste water management systems. These major capital efforts would be in addition to a multitude of changes necessary to meet § 265 and other requirements, including satisfying the training and medical monitoring requirements of 29 C.F.R. §191 0.120 for virtually all of the 500 plus employees at

Four Corners.

Another issue associated with timing of implementing a Subtitle C program on Indian Lands

concerns a vailable permitted disposal capacity. In its proposal EPA states,

"... to the extent that new capacity is needed, the implementation of today's rule, if the subtitle C alternative is selected, will be take place over a number of years, providing time for industry and state permitting authorities to address the issue." (75 Fed. Reg. at 35158)

As discussed above, this is clearly not the case on Indian lands. For example, at Four Corners, bottom ash is dewatered and used for various structural projects on th e plant

- site. Under a Subtitle C program this ash would have to be diverted to a landfill, which would first have to be designed, permitted, and constructed. It would be impossible for the Four Corners Power Plant to complete this effort before the RCRA re quirements become effective, should EPA choose to promulgate a Subtitle C rule.7

Simply put, the current compliance time frame under Subtitle C would be impossible to meet. Moreover, a rule that makes compliance impossible would be unlawful and directly co ntrary to the Bevill Amendment's directive that EPA avoid imposition of the Subtitle C regulations on CCRs to the greatest extent possible so as not to impose undue regulatory burdens on utilities and discourage the use of coal. (See 126 Congo Rec. at 3361 ). Such an impractical compliance deadline would constitute unreasoned and unlawful agency decision

- making. In fact, the U.S. Court of Appeals for the District of Columbia has made clear that an agency may not establish a regulatory program that makes full compliance impossible

- which would be the case for facilities on Indian lands. (See Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936, 940 (D.C. Cir. 1991) (Impossible requirements imposed by the Agency are per se unreasonable, citing D.C. Transit Sys., Inc. V. Wash. Metro. Area Transit Comm., 466 F.2d 394, 402 (D.C. Cir. 1972)).

Response: The Agency acknowledges and appreciates the comment. This comment is regarding the timeframes for implanting a subtitle C rule. The commenter is referred to Un it IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit VIII for a discussion on effective dates and implementation

timeframes.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06299

- 15 Organization: MidAmerican Energy Holdings Company (MidAmerican)

Commenter: Cathy S. Woollums Commenter Type: Electric Utility Company

Comment Excerpt Text: EPA’s anticipated timing of implementation of Subtitle C regulation in states is extremely

aggr essive. Regardless of the length of time necessary for a state to adopt the requisite regulatory framework and program, the length of time for facilities to comply is inadequate. This situation is further complicated in a state without delegated authority to implement RCRA’s Subtitle C program. Iowa is one of two states in that situation. MidAmerican Energy Company’s facilities would be among the first to be subject to the onerous requirements associated with Subtitle C, which would be administered by EPA R egion 7. A reduction in the time associated with compliance with Subtitle C requirements, simply because the state does not run the program is an unacceptable consequence of the lack of state delegation. MidAmerican Energy Company and

other entities with c oal

- fueled generation in Iowa should not be penalized by requiring compliance any earlier than any other state. To the contrary, if EPA finalizes its Subtitle C option (which it should not, based on the comments herein), all states should be required to co mply at the same time, on a date certain, rather than linking the compliance date to the date the state completes its rulemaking processes and that time should be, at a minimum, ten years from the final rule. In the event that a particular facility has cre ated an “imminent and substantial harm” situation, EPA has current authority to, and should, address such a circumstance on an individual

basis.

As further set forth below, MidAmerican believes that the EPA should adopt the Subtitle D “Prime” approach. Ho wever, if the EPA is to select a Subtitle C or D approach, MidAmerican8

recommends that the EPA extend the actual closure requirements to ten years. If warranted, facilities with the highest risk or demonstrated impacts could be addressed within the five to seven year time period. MidAmerican also recommends that the EPA not establish a specific time frame for the closure of individual units. Instead, we urge the EPA to require utilities to close CCR surface impoundments consistent with a site specific closu re plan approved by an individual state and developed/certified by a registered professional engineer or hydrologist.

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 Unit VIII for a discussion on effective dates and implementation timeframes.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06517

- 17 Organization:

Commenter: Anonymous Commenter Type: Anonymous

Comment Excerpt Text: Page 35191 of the Federal Register Table 9

– CCR Rule Requirements lists compliance dates for several of the proposed requirements. The table appears to have several incorrect references to sections of the p roposed regulations. Please check the citations in the first column of this table to ensure they reference the intended sections of the regulations.

This table indicates that owners of existing surface impoundments must submit inspection plans

within one year of the effective date of the rules. As mentioned above, these citations appear to

be incorrect.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06852

- 8 Organization: Green Delaware

Commenter: Alan Muller Commenter Type: Advocacy Group

Comment Excerpt Text: The Agency should specify that states must adopt the rule within one year.

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 Unit VIII for a discussion on effectiv e dates and implementation timeframes.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06860

- 22 Organization: South Carolina Chamber of Commerce, Environmental Technical Committee

Commenter: David M. Comen Commenter Type: Trade Association9

Comment Excerpt Text: We also have general concerns over compliance deadlines with the proposed options, based on the uncertainty of Subtitle C or Subtitle D landfill capacity or siting and permitting of new or expanded facilities.

Response: The Agency acknowledges and appre ciates 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 Unit VIII for a discussion on effective dates and implementation timefram es.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06860

- 7 Organization: South Carolina Chamber of Commerce, Environmental Technical Committee

Commenter: David M. Comen Commenter Type: Trade Association

Comment Excerpt Text: Even under ideal conditions, we do not believe that the Subtitle C landfill permitting and construction process could be completed within the effective dates of the proposed rule.

Response: The Agency acknowledges and appreciates the comment. This comment is regarding the timeframes for implanting a subtitle C rule. The commenter is referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCR A. The commenter is also referred to Unit VIII for a discussion on effective dates and implementation

timeframes.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07534

- 10 Organization: Aquaterra Environmental Solutions, Inc.

Commenter: Scott Waltrip

Commenter T ype: Other Company

Comment Excerpt Text: Page 35191 of the Federal Register Table 9

– CCR Rule Requirements gives compliance dates for several of the proposed requirements. The first column of this table appears to have several incorrect references to sections of the proposed regulations.

The ni nth item listed, “Submit plans required by 264.1304(b) and 265.1304(b)” should reference sections 1303, not 1304 of the respective regulations. The tenth item listed, “Adopt and submit to the Regional Administrator a plan for carrying out the inspection r equirements in 40 CFR 264.1305 and 40 CFR 265.1305” should reference sections 1304, not sections 1305 of the respective regulations. The twelfth item listed, “Install, operate, and maintain run

- on and run

- off controls as required by 264.1304(g) and 265.13 04(g) for surface impoundments and by 264.1307(d) and 265.1307(d) for landfills” should reference sections 1303(g) in 264 and 265 for surface impoundments and sections 1306(c) in 264 and 265 for landfills, respectively.

The tenth item listed, “Adopt and submit to the Regional Administrator a plan for carrying out10

the inspection requirements in 40 CFR 264.1305 and 40 CFR 265.1305” indicates that owners must comply with this requirement within one year of the effective date of the rules. As mentioned above, we believe these citations are incorrect. Regardless, neither 40 CFR 264.1304 or 40 CFR 265.1304 require owners to develop inspection plans. Please clarify this in the final rulemaking.

Also, the eleventh item listed indicates that owners must comply wi th the groundwater monitoring requirements in 40 CFR 264 and 265, Subparts F, within 1 year of the effective date of the rule. Only proposed rule 40 CFR 268.14 mentions a compliance date regarding groundwater monitoring. Nothing else in the proposed Subtit le C rules specifically mentions this compliance date. Please revise these rules by adding sections in 40 CFR 264 and 40 CFR 265 addressing groundwater monitoring, indicating that owners of existing CCR disposal facilities must comply with the requirements of Subpart F within one year of the effective date.

Response: The Agency acknowledges and appreciates the comment. This comment is regarding the timeframes for implanting a subtitle C rule. The commenter is referred to Unit IV of the preamble for a dis cussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit VIII for a discussion on effective dates and implementation

timeframes.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07534

- 11 Organization: Aquaterra Env ironmental Solutions, Inc.

Commenter: Scott Waltrip Commenter Type: Other Company

Comment Excerpt Text: The preamble, on Page 35191 of the Federal Register, in Table 9

– CCR Rule Requirements, indicates that facility owners will have one year from the eff ective date of the rule to comply with the groundwater monitoring requirements. However, the proposed rules do not specifically mention this except in Subsection 268.14(d) which seems to apply only to existing surface impoundments. The current rules (40 CF R 265.90) require owners to implement a groundwater monitoring program within one year of the effective date (presumably the effective date of the current regulations, which are already in effect). It would be clearer if the proposed rules included a speci fic provision allowing one year for owners to comply with the groundwater monitoring requirements.

Response: The Agency acknowledges and appreciates the comment. This comment is regarding the timeframes for implanting a subtitle C rule. 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 Unit VIII for a discussion on effective dates and implementation timeframes. Further, Unit VI details the sp ecific technical requirements, including the groundwater monitoring requirements. Owners and operators are given two years from the effective date of the rule to comply with the groundwater monitoring requirements.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08211

- 20 Organization: North Dakota Department of Health11

Commenter: L. David Glatt Commenter Type: State Government

Comment Excerpt Text: In regards to timing, the Subtitle D option would be in effect much more quickly than the Subtitle C option. EPA has acknowledged in the preamble that promulgation of new Subtitle C state regulations and EPA's authorization of the state programs would take three to five years, if not longer.

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 Unit VIII for a discussion on effecti ve dates and implementation timeframes. .

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08251

- 16 Organization: Massachusetts Department of Environmental Protection

Commenter: James C. Colman Commenter Type: State Government

Comment Excerpt Text:

MassDEP estim ates that implementation of regulations under the Subtitle C option could take 2

- 3 years, whereas implementation of the Subtitle D option could take place immediately in states such as Massachusetts that already have solid waste rules that would likely mee t or exceed EPA's proposed rules in terms of stringency. In addition, staffing requirements to draft new Subtitle C rules and implement the program would be significantly higher than regulation under Subtitle D, where the requirements to implement a progra m are already largely in place. States do not have resources to take on a program like this, so substantial federal funding would be required for the states to implement this option.

Response: The Agency acknowledges and appreciates the comment. The com menter 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 Unit VIII for a discussion on effective dates and implementation timeframes.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08251

- 25 Organization: Massachusetts Department of Environmental Protection

Commenter: James C. Colman Commenter Type: State Government

Comment Excerpt Text: The liner and leachate collection standards under both the proposed Subtitle C rules and Subtitle D rules apply only to new landfills or a new portion of an existing landfill. Under both the proposed Subtitle C rules and the Subtitle D rules, disposal of CCR in an area constructed prior to the rules going into effect may continue to operate with no time limit without retrofitting with a liner and leachate collection system. However, under both proposed rules such existing units must meet the groundwater monitoring and corrective action requirements. MassDEP12

recommends that EPA establ ish a definitive compliance date by which such continued disposal of CCR in landfills would cease and a liner and leachate collection system would have to be installed if the unit is to continue to operate, as is being required of surface impoundments. Thi s is entirely feasible and, particularly given the large volume of wastes involved, cost

- effective. Massachusetts required a similar compliance date in its solid waste regulations which resulted in the closure of many old, unlined landfills that chose not to continue operations and the retrofitting of many larger landfills where retrofitting with liners and leachate collection systems

was cost

- effective.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred

to Unit IV o f the preamble for a discussion on our decision to regulate CCR under subtitle D of

RCRA. The commenter is also referred to Unit VIII for a discussion on effective dates and implementation timeframes. Further, Unit VI details the specific technical requi rements, including the groundwater monitoring requirements. Owners and operators are given two years from the effective date of the rule to comply with the groundwater monitoring requirements.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09281

- 8 Organization: Exelon Power

Commenter: Victoria K. Will Commenter Type: Electric Utility Company

Comment Excerpt Text: The Subtitle D regulations would be self

- implementing, and could take effect more quickly than Subtitle C regulations, which would typically depend on adoption by a state program and subsequent approval by EPA.

The state adoption process for Subtitle C r ules can exceed two years. Presumably, the trade

- off for the delay in effective dates is the perceived benefit of federal enforceability of Subtitle C standards. Such a rationale, however, does not justify delaying substantive control requirements

that can be imposed directly and more expediently pursuant to Subtitle D. Since the state adoption process required for Subtitle C is inherently variable, it may also result in a temporary patchwork of regulatory requirements across the country as states adopt reg ulations and EPA approves them. Such piecemeal implementation may cause confusion among the public, regulators, and industry as to what requirements will become effective at what time in which states. Subtitle D regulations avoid this result, because the e ffective dates will be uniform.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09536

- 5 Organization: Tennessee Valley Authority

Commenter: John W. Myers Commenter Type: Electric Utility Company

Co mment Excerpt Text: It is our understanding that the time required for issuing a permit for a new disposal facility meeting the requirements of the Subtitle C regulations can take substantially longer, ie., years,13

than for a disposal facility meeting the r equirements of the Subtitle D regulations. In addition to permit review, the timeline for a disposal facility permit also includes steps for land acquisition, and construction, weather permitting.

Overlapping these tasks are those associated with design, purchase, and installation of new ash handling equipment, if required, as well as design, permit modification, and closure of existing ponds. All of these steps in the process can easily add up to over ten years before the landfill is able to accept waste . This is definitely more than the five to seven years envisioned by EPA even if there is no public opposition.

DOE contamination would result in ecological damage costs of more than $60 billion. Applying EPA's 24% multiplier for socioeconomic damage cos ts would add an additional $9 billion, for a total of $69 billion, which is over 2,300 times greater than estimated value of the conservation easement found to adequately compensate for natural resource damages resulting from the DOE

contamination. On the other hand, if there is any validity to the use of sediment removal costs as an estimate of ecological and socioeconomic damage costs, the above numbers suggest that the Kingston damages are relatively small. TVA's current estimate of $1.2 billion for King ston response costs is three percent of the estimated $38 billion costs of removing the DOE

contaminated sediments. Three percent of the $30 million compensation for DOE

- related natural resource damages is $900,000. While TVA believes that this would be an understatement of the Kingston damages, it is a far more accurate estimate than the $1.956 billion estimated by EPA.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09728

- 16 Organization: Intermountain Power Service Corporation (IPSC)

Commenter: Jon A. Finlinson Commenter Type: Electric Utility Company

Comment Excerpt Text: There are inconsistencies as to timing of closures under each option. For instance, closure of an impoundment under S ubtitle C can take much longer than closure under Subtitle D, given the requirement for authorized States to implement rulemaking and adoption of the rule under Subtitle C. Just dewatering an impoundment can take a decade. The options for dry handling equi pment for ash is limited to two manufacturers, which would cause delays in meeting compliance deadlines.

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 Unit VIII for a discussion on effective dates and implementation timeframes.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09828

- 2 Organization: Montana

- Dakota Utilities Company (Mont ana

- Dakota)

Commenter: Abbie Krebsbach14

Commenter Type: Electric Utility Company

Comment Excerpt Text: The company is very concerned about the economic impacts of this rule on Montana Dakota's customers, as well as the restricted compliance timeline requir ed under the proposed subtitle C regulatory option.

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 comme nter is also referred to Unit VIII for a discussion on effective dates and implementation timeframes. Economic impacts are discussed in Unit XII of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10017

- 24 Organization: Salt River Project (SRP)

Commenter: Daniel J. Casiraro Commenter Type: Electric Utility Company

Comment Excerpt Text: EPA does mention in its Subtitle C proposal that in states and jurisdictions where EPA administers the RCRA program (Iowa, Alaska, the territories, and Indian Cou ntry), the majority of the Subtitle C rules would go into effect and be enforceable by EPA six months after publication of the final rule in the Federal Register. SRP operates the Navajo Generating Station on Navajo Nation land (EPA administered RCRA progr am) in northern Arizona. Based on the numerous requirements that would be imposed under a Subtitle C rulemaking, it would be impossible for NGS to come into compliance within six months. Moreover, the six month compliance date that would apply only to thos e facilities under an EPA administered RCRA program would place such facilities at an unfair competitive disadvantage as compared to the vast majority of coal

- fired power plants in the country that would not have to comply for 1.5 to 2 years while authoriz ed states adopted the federal requirements into their base RCRA program. EPA clearly needs to provide an extended and flexible implementation schedule for the relatively few situations where a plant could be almost immediately impacted based upon the effec tive date of the rule. EPA clearly needs to consider granting an extension on the compliance date, a variance, or at a minimum a phased implementation to ease the enormous regulatory burden that could be placed on these few plants.

Response: The Agency acknowledges and appreciates the comment. This comment is regarding the timeframes for implanting a subtitle C rule. 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

- 2009

- 0640

- 10017

- 26 Organization: Salt River Project (SRP)

Commenter: Daniel J. Casiraro Commenter Type: Electric Utility Company

Comment Excerpt Text: Also, as part of the permitting process, RCRA facility

- wide corrective action would be required.15

The corrective action would involve assessment and possible remediation of solid waste management units at the facility including previously closed disposal units. EPA fails to consider the potential ramifications of the permitting process re quiring potential plant

- wide corrective action at all solid waste management units within the plant boundary. SRP believes that EPA does not fully understand the burden of forced closure and eventual closure of landfills and impoundments under a hazardous waste closure permit. Those requirements are even more burdensome (and unrealistic) if they are to apply within six months of promulgation.

Response: The Agency acknowledges and appreciates the comment. This comment is regarding

a subtitle C rule. The c ommenter is referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The corrective action requirements in the rule are for the unit only, not facility

- wide. Unit VI details the specific technical req uirements, including the groundwater monitoring and corrective action requirements.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11193_CHI

- 024

- 1 Organization: Headwaters Resources

Commenter: Bill Gehrmann Commenter Type: Beneficial User

Comment Excerpt Text: The Effective Date. We start to differentiate between the two proposals here. Under Subtitle D the Effective Date is six months after the final rule is promulgated for most provisions. However, for Subtitle C, the EPA states that the timing will vary. Eac h state must adopt the rule individually, which can take 1 to 2 years or even more. Common sense tells us that Subtitle D is the quicker path to implementation of essentially the same engineering standards.

Response: The Agency acknowledges and appreciat es the comment.

Comment Number: TRANS

- ARL

- 0082

- 1 Organization:

Commenter: Jessica Miller

Comment Excerpt Text: I am supporting Subtitle C with the exception that the enforcement date should be changed to be taking effect 6 months after the ruling, if not sooner, since time is of the essence as the folks who have talked about their experiences and negative health im pacts of this on their lives and their

families.

Response: The Agency acknowledges and appreciates the comment.

Section 3.7.2

- GW monitoring and corrective action (35181

- 35182)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 63 

### Organization: Tennessee Department of Environment and Conservation (TDEC)


### Commenter : Paul L. Sloan16



### Comment Excerpt Text: "However, under the proposal, existing units would have to meet the groundwater monitoring, corrective action, and other requirements of the subtitl e C regulations to assure that any groundwater releases from the unit were identified and promptly remediated."

The Department agrees that these standards should be required under national standards regulating CCRs.

Response : The Agency acknowledges and appreciates the comment. This comment is regarding a subtitle C rule. 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 Unit VI

for a discus sion the specific groundwater monitoring and corrective action requirements included in the rule. Existing units will have to comply with the groundwater monitoring and corrective action requirements in § § 257.90

- 257.98.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06305

- 6 

### Organization: Clean Water Network


### Commenter : Natalie Roy



### Comment Excerpt Text: Requiring groundwater monitoring. Most large ash

- generating states currently require no monitoring by law of groundwater at ash sites. In fact, states whose regul ations fail to require monitoring at ash ponds accounted for approximately 70 percent of the CCW generated nationwide in 2008. Since states have not taken action in forcing power plants to monitor for groundwater contamination, strong federal regulations m andating groundwater monitoring at every coal ash dump site are needed.

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 Unit VI for a discussion the specific groundwater monitoring and corrective action requirements included in the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 66 

### Organization: Earthjustice et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group



### Comment Excerpt Text: Whatever parameters are measured, design of monitoring systems is highly site

- specific and general rules will always be insufficient to ensure that contamination will be detected. Comprehen sive oversight of monitoring system design

— which is provided for only by the Subtitle C regulatory option and not by the Subtitle D option

— is therefore essential.17

Response: The Agency acknowledges and appreciates the comment. This comment is regardi ng a subtitle C rule. 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 Unit VI for a discussion the specific groundwater monitoring and corre ctive action requirements included in the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 69 

### Organization: Earthjustice et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group



### Comment Excerpt Text: Monitoring points must be located for early detection of contamination, so that corrective action can be implemented before it creates a major problem or crosses property lines. Design of monitoring systems is highly site

- specific; the geometry, geology, hydrogeology, climate, and topography of the site must be taken into account. The site

- dependence of monitoring makes it essential to have regulatory review and approval of the monitoring network. This is provided only by regulation under Subtitle C rather than Subtitle D.

Response: The Agency ackn owledges and appreciates the comment. This comment is regarding a subtitle C rule. 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 Unit VI for a discussion the specific groundwater monitoring and corrective action requirements included in the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 73 

### Organization: Earthjustice et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group



### Comment Excerpt Text: The purpose of RCRA detection monitoring is to determine when the disposal unit has leaked and more thorough monitoring is needed. In the current Subtitle C and D programs, the triggering event is a measurement of a general chemistry indicato r parameter that differs from background measurements in a statistically significant way. This criterion has numerous defects:

• Background perturbations in general chemistry can easily be caused by off

- site point sources

related to either natural feature s or human activities. Because such sources can be outside the control of site operators, regulatory review of operator submittals does not ensure that they are

identified.

• Statistical significance tests treat the variability of background measurements as random noise. In reality, variations in hydrogeologic systems are rarely entirely random. Measured parameters are correlated with each other and with geology, weather, etc. Statistical significance tests ignore

all of this information and thus understat e how much is known about the groundwater system.18

• False negative results are unavoidable. The number of false negatives can be reduced by collecting more background data, but with small sample sizes it inevitably remains large.

• There is a disincentiv e to characterize background conditions, because smaller changes become statistically significant when there is less uncertainty in background.

• It has proven to be impossible to designate any specific statistical procedure because the nature

of the data variability affects the applicability of statistical tests. The open

- ended nature of the requirement and the complexity of statistical analysis places a heavy administrative burden on regulatory agencies.

As a result of these limitations, detection of a change in general chemistry often launches a protracted dispute about whether the landfill has been proven to be the source

— even when circumstances point clearly in that direction. Under the Subtitle C and D regulations, the

resources that are devoted to resolving such disagreements are spent for the most part on arcane statistical manipulations rather than gathering more information about the site. Statistics replaces science, and the information that does not fit into a mathematical straitjacket

— chemi stry, hydrogeology, site history, and much else

— is lost.

Response: EPA acknowledges the commenter’s concerns over the validity of using statistical tests of significance to identify problems of groundwater well contamination. The Agency, however, disagrees with the view that statistical arguments are over

- used to the p oint of replacing the science. EPA considers the use of statistical tests in detection monitoring to be the best tool to draw inferences about the water quality of the underlying aquifer. Measured groundwater data are typically variable over time and hyd rochemical constituents are commonly examined as data sets (that is, a collection of numbers) with specific population

characteristics. If the data accurately mimic reality, use of statistical tests of significance compares mathematical models of the data , and allows conclusions to be drawn about physical reality without seeing all of the evidence. Short of sinking a large number of wells and taking a census of the entire population of possible groundwater measurements within the aquifer to

derive an exac t distribution of the population of contaminant values, sampling and the application of statistical tests is the best means of identifying contamination. The validity of statistical tests depends on the assumption that the data are independent (random) an d identically distributed (spatially invariant). The basic detection monitoring framework compares contaminant concentrations at downgradient wells to see if they are significantly greater than background.

Offsite point sources are easily detected and st atistical testing can be accommodated if upgradient wells show trends. Most inorganic monitoring constituents such as metals exhibit spatial variability, which precludes the use of interwell comparisons. Spatial variability in upgradient wells implies tha t the average groundwater concentration levels vary from well to well because of existing onsite conditions, including the possibility of contamination from offsite point sources. In cases where spatial variability is not attributable to contamination from the CCR disposal unit, use of intrawell comparison tests may be an appropriate alternative.19

The Agency disagrees with the commenter’s characterization of the problems with detection monitoring as one of unavoidable false negative decision results, because logically the statistical presumption is that groundwater is the same as uncontaminated background at the point of compliance. In other words, it’s impossible to have a false negative error when the underlying

truth is the well is uncontaminated. The issue is one of false positive decision errors, evaluations where one or more wells are falsely declared to be contaminated when in fact their concentration distribution is similar to background.

In order to identify a real release to groundwater whe n it occurs

, EPA believes that all comparison tests must have adequate statistical power to identify concentration increases above background. A second critical goal is to avoid false positive decision errors. Unfortunately, given a statistical test and f ixed sample size, a lower false positive rate coincides with lower power of the test to detect contamination at the well. The Agency acknowledges for a single test, increasing the background sample size can improve statistical power, but recommends that a ny monitoring strategy also involve choices among certain detection monitoring tests

-- prediction limits, control charts and tolerance intervals

-- to enhance both power and false positive error

control. These are described in EPA’s Unified Guidance. (“U nified Guidance Document: Statistical Analysis of Groundwater Monitoring Data at RCRA Facilities”, March 2009, EPA

530/R

- 09

- 007).

Since the false positive rate is linked not to the frequency of sampling but rather to the frequency

of statistical evaluati on, to help balance the risks of false positive and false negative errors the number of statistically

- tested detection monitoring parameters finalized in today’s rule are limited to constituents thought to be reliable indicators of a contaminant release.

For detection monitoring the reference power curves laid out in EPA’s Unified Guidance offer an important standard by which to judge the adequacy of groundwater statistical programs and

tests. The Unified Guidance recommends that any statistical test pro vide at least 55

- 60% annual power to detecting a 3s (i.e., 3 standard deviations) increase above the true background mean and

at least 80

- 85% annual power for detecting increases of 4s.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 78 

### Organization: Earthjustice et. al.


### Commenter : Lisa Evans



### Comment Excerpt Text: In assessment monitoring, additional monitoring points are needed to delineate the extent and severity of the contamination that has been detected in detection monitoring, identify its sourc e, and understand its chemistry. Plans for initial phases of assessment monitoring, including well locations, parameters, and analytical methods, should be prepared as part of permitting to ensure rapid implementation . The number and location of these moni toring points and the frequency of monitoring depend on site

- specific conditions to an even greater degree than in detection monitoring. Again, only regulation under Subtitle C can assure proper oversight.

Response: The Agency acknowledge s and appreciate s the comment. T he commenter is referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of20

RCRA. The commenter is also referred to Unit VI for a discussion the specific groundwater monitoring and corrective ac tion requirements included in the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 79 

### Organization: Earthjustice et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group



### Comment Excerpt Text: When diagnostic parameters are monitored, movement from detection monitoring to assessment monitoring to corrective action is triggered by direct comparison of new to old data. Neither statistical analysis nor collection of new data (other than resampling to check for analytical errors) is necessary. Thus the f irst round of sampling for the enlarged list of parameters should occur no later than the date of the next scheduled detection monitoring event.

One case where new data must be collected to determine whether to enter assessment monitoring

is when initial monitoring of an existing site finds contamination for which another source is suspected. To avoid delay in this case, a time limit for data collection should be set at three months from the receipt of the data.

The site

- specific nature of groundwater inv estigations offers many opportunities for delay. Regulatory oversight under Subtitle C is essential to ensure timely evaluation and remediation. When a remedy cannot be implemented swiftly, interim measures should be used to contain the

contamination. The regulation should specify that within 90 days after a site enters corrective action, an evaluation of the feasibility of interim remedial measures must be completed.

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 Unit VI for a discussion the specific groundwater monitoring and corrective action requirements included in the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 91 

### Organization: Earthjustice et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group



### Comment Excerpt Text: Groundwater monitoring, which starts before the first wastes are transported to the facility for disposal, should be scrutinized for the earliest signs of leakage. Once identified, contaminants in the groundwater should be addressed with utmost haste, mini mizing the spread of contaminants

to un

- impacted areas.

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 c ommenter is also referred to Unit VI for a discussion the specific groundwater21

monitoring and corrective action requirements included in the rule. For new units, groundwater monitoring is required to begin before the unit accepts any CCR.



### Comment Number : EPA

- HQ

- RCRA

- 2009

- 0640

- 06349

- 2 

### Organization:

Commenter : Mollie Freebairn Commenter Type: Private Citizen

Comment Excerpt Text: There is an urgent need for testing the waters adjacent to and downstream from power plants in Missouri for toxic heavy metals that have been building up and spreading out for years, including at the intakes to downstream public drinking water supplies.

Response : This comment is beyond the scope of this rulemaking.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06349

- 7


### Commenter : Mollie Freebairn Commenter Type: Private Citizen

Comment Excerpt Text: The hazardous nature of the toxic heavy metals and many of the organics calls for a major

program to: Identify both the organic and elemental constituents of coal ash waste disposed of throughout the U.S. Measurements of waters including drinking water supplies, ambient air, and land in proximity to current coal ash impoundments, many of which have been in place for a number of decades and contamination to the surrounding environment is likely to be extensive.

Conduct medical assessments and studies to evaluate the health effects and the extent to which populations are currently affected with respect to diseases such as cancer, heart disease, lupus, multiple sclerosis, cystic fibrosis, I Q, even hampering our capacity as a civilization to address serious problems of which this is one. Permanently contain all current coal ash waste sites in view of the fact that the elem ental

constituents have no half

life and are never destroyed.

Response : This comment is beyond the scope of this rulemaking.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06517

- 19


### Commenter : Anonymous Commenter Type: Anonymous

Comment Excerpt Text: Also, the table indicates that owners must comply with the groundwater monitoring requirements within 1 year of the effective date of the rule. While proposed rule 40 CFR 268.14 mentions a groundwater monitoring compliance date, the other sections of the proposed rules do not. In fact, the proposed rules do not contain groundwater moni toring sections at all. Please revise these rules by adding sections addressing groundwater monitoring, indicating that owners of existing CCR disposal facilities have one year from the effective date to comply with the groundwater22

monitoring requirements of Subpart F.

Response: The Agency acknowledges and appreciates the comment. This comment is regarding a subtitle C rule. The commenter is referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. T he commenter is also referred to Unit VI for a discussion the specific groundwater monitoring and corrective action requirements included in the rule. The groundwater monitoring requirements are found in §§257.90

- 257.98. The compliance date for the groun dwater monitoring requirements is two years from the effective date of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 13 

### Organization: NiSource Corporate Services


### Commenter : Dale A. Helmers Commenter Type: Electric Utility Company

Comment Excerpt Text: Given the chemical makeup of CCRs and the relatively low risk they pose, in addition to the existing options for establishing groundwater concentration limits for hazardous constituents, power generators should be allowed to utilize state

- developed, risk

- based ground water remediation objectives.

Because there is extensive information available regarding the chemical makeup of CCRs, there is no reason to require sampling for parameters beyond those set forth in the Subtitle D proposal. The analyte l ist used for detection and assessment monitoring in the Subtitle D proposal should also be used in the Subtitle C proposal. There is no reason to require additional analytes under a Subtitle C proposal, especially when both proposals require “identical” co ntrols. 75 Fed. Reg. at 35213. As EPA is well aware, the primary constituents of concern for CCRs are arsenic, boron, cadmium, manganese, magnesium, molybdenum, selenium, and strontium. To suggest that the presence of total organic carbon and total organic halogens are indicative of CCR contamination is to completely ignore the extensive body of information available regarding the chemical makeup of CCRs. EPA should also look to its experience in the early 1980s when these indicator parameters were the caus e of many “false positives.” Numerous interim status facilities were forced to undergo assessment monitoring because the indicator parameters were not truly indicative of groundwater contamination. EPA should amend this section to establish indicator

param eters for CCRs that are a subset of the assessment analyte list set forth in the Subtitle D proposal. For example, much has been written about the use of boron and molybdenum as

indicators of CCR contamination.

Groundwater Monitoring (40 C.F.R. §§ 264.97 , 264.98, 264.99, and 265.95)

Given that the chemical makeup of CCRs is so well documented, a minimum of four independent samples from each background and downgradient well is not necessary. Furthermore, the purpose of this requirement is not apparent. Mu ltiple samples from the same location during a given sampling event are typically referred to as replicate samples. Collection of replicate samples is often specified for some percentage of sampling locations (typically 5% to 20%) as part of a quality assu rance/quality control (QA/QC) program such that an assessment of23

the laboratory equipment accuracy can be conducted. However, even as part of a QA/QC program, replicate sampling is typically limited to the collection of two samples from the same location, not four. EPA’s Unified Guidance (EPA, 2009) for Statistical Analysis of Groundwater Monitoring Data at RCRA Facilities indicates that replicate samples (e.g., field splits) should not be treated as independent observations and that replicates should eithe r be averaged or one value from each replicate set be randomly selected. The guidance further indicates that if multiple coincident samples are dissimilar, professional judgment shall be used to identify the most representative result. It is recommended th at this requirement be deleted.

Compliance Monitoring (40 C.R.F. § 264.99)

CCRs have been well characterized and their analytical makeup is well understood by both EPA and most generators. The inclusion of monitoring requirements beyond base detection a nd compliance monitoring lists of metals (arsenic, boron, cadmium, manganese, magnesium, molybdenum, selenium, and strontium) is unnecessary and inappropriate and should be deleted

Response: The Agency acknowledges and appreciates the comment. This comme nt is regarding a subtitle C rule. 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 Unit VI for a discussion the specific groundwater monitor ing and corrective action requirements included

in the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06532

- 12 

### Organization: Southern Illinois Power Cooperative


### Commenter : Leonard F. Hopkins Commenter Type: Electric Utility Company

Comment Excerpt Text: Sampling and Indicator Parameters (40 C.F.R. §§ 264.98 and 265.92)

Because there is extensive information available regarding the chemical makeup of CCRs, there is no reason to require sampling for parameters beyond those set forth in the Subtitle D propo sal. The analyte list used for detection and assessment monitoring in the Subtitle D proposal should also be used in the Subtitle C proposal. There is no reason to require additional analytes under a Subtitle C proposal, especially when both proposals requ ire “identical” controls. The indicator parameters in Section 265.92(b) are not appropriate for CCRs. Furthermore, as EPA is well aware, the primary constituents of concern for CCRs are boron, molybdenum, arsenic, cadmium, selenium, strontium, magnesium, a nd manganese. To suggest that the presence of total organic carbon and total organic halogens are indicative of CCR contamination is to completely ignore the extensive body of information available regarding the chemical makeup of CCRs. As EPA is aware, th ese indicator parameters have been the cause of many “false positives”. Almost every interim status facility initially underwent assessment monitoring, because these parameters are not truly indicative of groundwater contamination. The indicator parameters for CCRs should be a subset of the assessment analyte list set forth in the Subtitle D proposal. For example, much has

been written about the use of boron as indicator of CCR contamination

.24

Response : The Agency acknowledges and appreciates the comment. This comment is regarding a subtitle C rule. 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 Unit VI for a discussion the specific groundwat er monitoring and corrective action requirements included

in the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06869

- 4


### Commenter : Dalia Patino Echeverri and Varun Kumar Commenter Type: Private Citizen

Comment Excerpt Text: For these reasons, we believe fe deral oversight is required for the implementation of preventive

measures

- such as the assessment of structural stability in nearby surface impoundments, or the monitoring of ground water quality.

Response: The Agency acknowledge s 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 Unit VI for a discussion the technical requirements of the rule including structural stability and groun dwater monitoring.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08260

- 9 

### Organization: Citizens Against Ruining the Environment (C.A.R.E.)


### Commenter : Carol Stark et al. Commenter Type: Advocacy Group

Comment Excerpt Text: As the existing coal ash ponds are unlined and there is evidence that many are negatively impacting our groundwaters what type of remediation will take place?

The EPA insists that if there are no hits on the site’s monitoring wells that contamination has not

affected the property owners’ private wells in the area. With the many health issues of residents in these areas we want to feel secure that our wells are not contaminated. What proof do we have if our wells are not individually tested?

Response: If an unlined CCR s urface impoundment is found to be exceeding a groundwater protection standard, it will be required to retrofit or close. Testing the area wells is beyond the scope of this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08861

- 6 

### Organization: Inter

- Tribal Cou ncil of Michigan Inc.


### Commenter : Robin Clark Commenter Type: Tribal Government

Comment Excerpt Text: Though both proposed approaches under Subtitles C and D require the addition of groundwater25

monitoring, they both fail to require retrofitting of existing landfills. The addition of groundwater monitoring is too little, too late for communities at risk fro m groundwater contamination. The Great Lakes hold 90% of the United States' freshwater resources (Great Lakes Information Network, 2010). In this region, groundwater protection is of utmost importance. The proposed

rule should allow states and tribes to ad equately protect our surface and ground water resources from contamination from stored and beneficially used CCRs, including addressing risks from existing landfills and accounting for geology and hydrology specific to Michigan and the Great

Lakes basin.

Response: The rule will allow states and tribes to impose more stringent requirements than what

are contained in the final federal rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 23 

### Organization: Prairie State Generating Company, LLC (PSGC)


### Commenter : Keith Bastian Commenter Type: Electric Utility Company

Comment Excerpt Text: Because there is extensive information available regarding the chemical makeup of CCRs, there is no reason to require sampling for parameters beyond those set forth in the Subt itle D proposal. The analytes list used for detection and assessment monitoring in the Subtitle D proposal should also be used in the Subtitle C proposal. There is no reason to require additional analytes under a Subtitle C proposal, especially when both p roposals require "identical" controls. As EPA is well aware, the primary constituents of concern for CCRs are boron, molybdenum, arsenic, cadmium, selenium, strontium, magnesium, and manganese. To suggest that the presence of total organic carbon and total organic halogens are indicative of CCR contamination is to completely ignore the extensive body of information available regarding the chemical makeup of CCRs. EPA should also look to its experience in the early 1980s when these indicator

parameters were the cause of many "false positives." Nearly every interim status facility was forced to undergo assessment monitoring because the indicator parameters were not truly indicative of groundwater contamination. EPA should amend this section to establish indica tor parameters for CCRs that are a subset of the assessment analyte list set forth in the Subtitle D proposal.

Response : The Agency acknowledges and appreciates the comment. This comment is regarding

a subtitle C rule. 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 Unit VI for a discussion the specific groundwater monitoring and corrective action requirements included

in the rule.

Section 3.7.5

- Corrective action/facility

- wide corrective action (35182

- 35183)

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 23 Organization: Wisconsin Department of Natural Resources (WI DNR) and Public Service26

Commission of Wisconsin (WI PSC)

Commenter: Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government

Comment Excerpt Text: We do not believe that the RCRA corrective action program is needed at Wisconsin utility locations. Wisconsin has sufficient regulatory authority to remediate sites under our Waste and Materials Management program and our Remediation and Redevelopment program.

Response : The Agency acknowledges and appreciates the comment. This comment is regarding

a subtitle C rule. The commenter is referred to Un it IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit VI for a discussion the specific groundwater monitoring and corrective action requirements included

in the rule.

Comm ent Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06808

- 13 Organization: New Mexico Environment Department (NMED) and Energy, Minerals and Natural Resources Department (EMNRD)

Commenter: Bill Brancard Commenter Type: State Government

Comment Excerpt Text: Subtitle C regulation would be much more protective than Subtitle D regulation because it would allow New Mexico control over management practices from “cradle

- to

- grave,” that is from point of generation to final disposal. Whereas Subtitle D regulation wou ld only cover CCR disposal, Subtitle C would lead to a phasing out of wet management of CCRs in surface impoundments, which is the primary cause of CCR disposal

- related environmental contamination. The State

would also have much better control over correct ive action and closure/post

- closure care under Subtitle C regulation; under Subtitle D these activities are left to the facilities to implement.

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

- 2009

- 0640

- 06876

- 6 Organization: Tennessee Riverkeeper, Inc.

Commenter: David Whiteside Commenter Type: Advocacy Group

Comment Excerpt Text: The advantages of regulating CCRs under Subtitle C are many. Enforcement is by the state and federal government, not merely by citizen suits. Corrective action as well as closure are

mo nitored by authorized states and EPA, rather than being “self

- implementing.” Appropriate financial assurances are imposed; permits are required; storage requirements are mandated. Most significantly, the use of surface impoundments to store CCRs will be ph ased out, ending this huge risk to public health and the environment. The beneficial use of encapsulated CCRs can and27

will continue. Any “stigma” about the continued safe and appropriate use of CCRs can be countered by EPA, the relevant industries and by p ublic information campaigns. In fact, with the “wet” storage of CCRs discontinued, there will be increased opportunities for the beneficial use

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

- 2009

- 0640

- 08261

- 4 Organization: Black Warrior Riverkeeper, Inc

. Commenter: Eva Dillard Commenter Type: Advocacy Group

Comment Excerpt Text: The advantages of regulating CCRs under Subtitle C are many. Enforcement is by the state and federal government, not merely by citizen suits. Corrective action as well as closur e are monitored by authorized states and EPA, rather than being “self

- implementing.” Appropriate financial assurances are imposed; permits are required; storage requirements are mandated. Most significantly, the use of surface impoundments to store CCRs wi ll be phased out, ending this huge risk to public health and the environment.

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

- 2009

- 0640

- 08787

- 23 Organization: Association of State and Territorial Solid Waste Management Officials (ASTSWMO)

Commenter: Steph en A. Cobb (Al) Commenter Type: State Government

Comment Excerpt Text: Under the Subtitle C option, EPA would impose facility

- wide corrective action requirements on facilities required to obtain a RCRA permit for management of CCRs. This would impose

anot her substantial burden on State programs that are already struggling to maintain funding for existing programs. The proposal by EPA also fails to provide an adequate analysis of the practical difficulties associated with implementation of the facility

- wide corrective action for the purposes of determining whether modification of the requirement is warranted, as authorized by ?3004(x) of RCRA.

The current corrective action universe consists of 3746 facilities [Footnote 10: See http://www.epa.gov/epawaste/h azard/correctiveaction/pdfs/2020fac.pdf ]. Requiring facility

wide corrective action at the facilities that would be required to obtain RCRA C permits for management of CCRs would increase this universe by at least 10%. Initiation and oversight of

correcti ve action activities at a facility are at least as resource intensive for the oversight agency28

as issuing an operating or post

- closure permit. Corrective action is an on

- going process requiring considerable oversight activity, most of which is performed by the States. This would potentially affect progress at sites currently going through the corrective action process, if States were unable to obtain resources to hire staff to implement the newly imposed mandates.

Apart from the staffing and resource issu es raised by the proposal, there are technical concerns as well in implementing facility

- wide corrective action for facilities managing CCRs. In the event elevated levels of hazardous constituents associated with CCRs were found at a site, it may be

diffic ult to distinguish whether the source was a solid waste management unit, a unit managing CCRs prior to beneficial use (determined by EPA to not be a solid waste), or even a raw material storage unit. Attempts to implement corrective action under such condi tions could be particularly contentious between the regulatory agency and the facility, requiring even greater agency

resources than normal.

Response: The Agency acknowledges and appreciates the comment. This comment is regarding a subtitle C rule. 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

- 2009

- 0640

- 08853

- 7 Organization: Lower Colorado River Authority (LCRA)

Commenter: Henry Eby Commenter Type: Electric Utility Facility :

Comment Excerpt Text: Subtitle C would require CCR generators to obtain a RCRA Hazardous Waste Permit by submitting a Part A and Part B pe rmit application in order to gain interim status. Furthermore, under 40 CFR § 264 Subpart F

- Releases from Solid Waste Management Units, generators would be required to conduct site

- wide Remedial Investigation and potential corrective action

under HSWA Cor rective Action for all Solid Waste Management Units across the entire site. The Subtitle C option would require a facility owner to comply with this provision within two years of the effective date of the rule. Since HSWA Corrective Action requirements are included as part of the Part B permit, it may be impossible to complete the studies within two years of the effective date of the final rule. Considering limited agency resources and anticipated permitting timeframes, the permitting process may take two y ears or longer. LCRA recommends against adoption of the Subtitle C requirements. However, should EPA adopt the Subtitle C option, LCRA recommends that the time line for completing Subpart F requirements be tied to the date of permit issuance.

Response: The Agency acknowledges and appreciates the comment. This comment is regarding a subtitle C rule. 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

C CR in landfills and surface impoundments.29

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09808

- 1 Organization: Wyoming Outdoor Council

Commenter: Bruce Pendery Commenter Type: Advocacy Group

Comment Excerpt Text: In the proposed rule, 75 Fed. Reg. 35,128 (June 21, 2010), the EPA says that it is considering two options, for the regulation of CCRs, one proposing to regulate these industrial byproducts as special wastes under subtitle C of the Resource Conservation an d Recovery Act (RCRA); and the other proposing to regulate CCRs under subtitle D of RCRA through the issuance of national minimum criteria. The Wyoming Outdoor Council supports regulation of these dangerous wastes under subtitle C of RCRA, and urges the EP A to adopt this regulatory approach in its final rule.

- Regulation under subtitle C will provide greater assurance that the substantial threats to the environment and public health posed by CCRs will be carefully regulated through a permitting process with the added benefits that enforcement and corrective actions will, be more certain.

Regulation under subtitle C will create a comprehensive program of federally enforceable requirements for waste management and disposal. Regulation under subtitle D only al lows EPA to set performance standards for

- waste management facilities, which as EPA acknowledges are narrower, in scope and would be enforced primarily by those states that choose to adopt coal ash management programs. The Subtitle C option would require t he development of state or federal permit programs, would allow for direct federal enforcement and would, include related storage, manifest, transport, and disposal requirements and mechanisms for corrective action and financial responsibility assurance. T he subtitle D proposal would not be federally enforceable (although citizen’s suits could be filed) and it would not establish the more comprehensive management requirements for CCRs destined for disposal.

Fortunately, both the subtitle C and subtitle D approaches would establish largely the same requirements relative to liners and groundwater monitoring. We support this and urge EPA to maintain these requirements. However, the subtitle C approach has other advantages over the subtitle D approach relative to surface impoundments and landfills. Under subtitle C regulation, the subtitle C, and disposal restrictions, which are quite protective of public health and the environment, would have to be met. This does not apply to a subtitle D program. Under the

su btitle C approach, new surface impoundments would effectively be phased out, which as the disaster in Tennessee shows would be a beneficial step forward. And under the subtitle C program there would be requirements enforced through permitting decisions for the storage of CCRs, including the use of containers, tanks, and containment buildings. These requirements do not apply under the subtitle D approach. Furthermore, under the subtitle C approach the corrective action requirements are more extensive than un der subtitle D. Thus, it seems apparent to us that overall the subtitle C program will do a considerably better job of ensuring that CCR contamination does not result from the storage, impoundment, or land filling of these wastes, and

thus the environment and public health would be better protected and assured.

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 ru le for the disposal of CCR in landfills and surface impoundments.30

Section 3.7.5.1

- EPA solicits comment on whether it should modify §3004(x) corrective action requirements; commenters should specifically address how other alternatives could be protec tive of HHE without mandating facility

- wide corrective action for all SW management units with releases of HW or hazardous constituents (35183, 35223)

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06203

- 4 Organization: Arizona Public Service Company (APS)

Commen ter: Scott Davis Commenter Type: Electric Utility Company

Comment Excerpt Text: The Subtitle C option would impose serious and often intractable compliance problems for electric utilities given the physical nature of CCRs and the volume of CCRs generated by the industry in the course of the electric utility operations (e.g., APS generates approximately 2.6 million tons of ash each year at its two coal

- fired power plants). One of the fundamental premises EPA cited for deciding not to regulate CCRs in its f inal Regulatory Determination for the four large

- volume CCRs was the recognition that the inflexible, one

- size

- fits

- all nature of the Subtitle C hazardous waste program simply was not appropriate for the diverse nature of CCR disposal facilities.

Complyin g with RCRA Subtitle C hazardous waste regulations at all points of operation of a coal fired power plant would be virtually impossible to achieve. Under existing hazardous waste regulations compliance begins at the point of generation of a waste. Dependin g on the configuration and operations of a coal fired power plant, the point of generation of CCRs could be as early as the boiler where coal is combusted and ash is generated. Effectively managing CCRs in compliance with all RCRA requirements from that po int downstream through all of the handling processes required to accumulate and transport the CCRs to the point of disposal would require an existing coal

- fired power plant to be converted into a zero discharge facility, which is an absurd and totally unre asonable expectation. Short of this, however, continual compliance with RCRA Subtitle C requirements imposed on CCRs would not be possible.

As a listed hazardous waste, CCRs would be subject to the mixture and derived from rules which apply to materials w hich come in contact with a listed waste. Since RCRA Subtitle C contains no de minimis exemption for listed wastes; any material, no matter how small or inconsequential, derived from a listed hazardous waste remains subject to full Subtitle C regulation. 4 0 C.F.R. § 261.3(c)(2). As a result, virtually all material and equipment which comes in contact with CCRs would be required to be disposed of as a hazardous waste or decontaminated on a regular basis. This would apply to equipment such as conveyor belts, bins, vehicles, etc., all of which would be subject to full hazardous waste regulation under the proposed Subtitle C rule. All temporary accumulation and storage points of CCRs prior to reaching the final disposal site would also require retrofitting or re placement to meet the storage requirements found in the hazardous waste regulations, including all requirements relating to tank systems, surface impoundments and waste31

piles. See generally 40 C.F.R. Parts 264 and 265.

Due to the sheer volume and the phys ical composition of CCRs, de minimis .volumes of CCRs are inevitably released during normal operations and subsequent CCR handling operations (e.g., fugitive and de minimis emissions from ash conveyor equipment, loading equipment or during the transport/ha ndling of CCRs for beneficial use). This holds true despite the utilization of state

of

- the art CCR handling, conveyance, and storage equipment designed to limit fugitive emissions. Even a facility's Clean Air Act Title V permit recognizes that small amoun ts of fugitive dust are emitted from these activities and expressly set limits for these emissions in the permit. In other words, de minimis releases of these materials are an expected part of coal

- fired generation and virtually impossible to prevent.

Non etheless, if CCRs are regulated as a listed "special waste" subject to full hazardous waste regulation, even these de minimis releases would constitute improper hazardous waste disposal, subjecting APS' coal

- fired power plants to liability for what would p otentially be a continual

state of RCRA non

- compliance because, as noted previously RCRA Subtitle C contains no de minimis exemption for listed wastes and any material, no matter how small or inconsequential,

derived from a listed hazardous waste remains s ubject to full Subtitle C regulation.

For example, at APS' Four Corners Power Plant two of the facilities five boilers are super critical, positive pressure units, as opposed to negative pressure units. This is significant because in a positive pressure s ystem small holes, cracks, openings, etc., in the duct work downstream from the boilers allow de minimis releases of flue gas containing ash to occur despite having a thorough inspection and maintenance program in

- place to prevent such fugitive emissions.

Clearly, the prospect of Subtitle C liability for any de minimis release or spill of CCRs during handling operations prior to their placement into a disposal unit constituting improper hazardous waste disposal is a significant compliance concern, even tho ugh there is very little risk associated with such de minimis releases. APS strives for full compliance with all applicable environmental laws, regulations and permit conditions, but the Subtitle C option would make this objective impossible to achieve. Mo reover, the fact that such inevitable releases would constitute improper disposal would expose APS' facilities to continual and harassing citizen suits based solely on these de minimis and inconsequential releases.

In response to a letter from members of the House Energy and Commerce Committee, [FN 2: Letter from Reps. Upton, Boucher, Space and Rodgers to EPA Administer Lisa Jackson dated April 27, 2010 attached to comments.] EPA confirmed its position that even such de minimis releases would be subject to full hazardous waste regulation, and that such releases would be addressed through the Subtitle C hazardous waste regulations that "address responses to unplanned releases, such as accidental spills or leaks." In effect, under the Subtitle C Option,

EPA w ould be promulgating a rule with which utilities would not be able to comply.

Response: The Agency acknowledges and appreciates the comment. This comment is regarding a subtitle C rule. The commenter is referred to Units IV and V of the preamble

discuss ion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.32

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 57 Organization: We Energies

Commenter: Art Covi Commenter Type: Electric Utility Company

Comment Excerpt Text: States such as Wisconsin and Michigan have been safely and efficiently regulating the disposal of CCRs for many years. We strongly encourage EPA to provide for state regulatory programs to

continue to effect ively manage CCR disposal under Subtitle D type regulations, complying with

federal standards.

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 rationa le 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

- 2009

- 0640

- 06260

- 137 Organization: Kentucky Department for Environmental Protection

Commenter: R. Bruce Scott Commenter Type: State Government

Comment Excerpt Text: p. 35183: Nevertheless, EPA solicits com ment on whether EPA should modify the corrective action requirements under section 3004(x) of RCRA. Commenters should specifically address the issue of how other alternatives could be protective without mandating corrective action as

needed for all solid w aste management units from which there have been releases of hazardous waste or hazardous constituents at the facility.

The Commonwealth believes that existing programs will provide sufficient protection. 401 KAR 48:300, Section 1 of the solid waste regul ations states:

"Section 1. Applicability. The requirements of this administrative regulation apply to owners and operators of contained, construction/demolition, and residual landfills, Class II and Class III landfarming facilities, other solid waste site s or facilities at which the cabinet determines groundwater monitoring shall be required and solid waste sites or facilities required to accomplish corrective action as a result of documented groundwater contamination ." (Our italics)

The special waste cou nterpart, found at 401 KAR 45:160, Section 1 states:

"Section 1. Applicability. The requirements of this administrative regulation apply to owners and operators of special waste landfills, Type A special waste landfarming or composting sites or

facilitie s, other special waste sites or facilities at which the cabinet determines groundwater and surface water monitoring shall be required, and special waste sites or facilities required to33

perform corrective action as a result of documented groundwater contami nation ..."

The phrase "solid waste sites or facilities" and "special waste sites or facilities" includes permits

by

- rule, such as surface impoundments and temporary waste piles.

The Underground Storage Tanks Branch of the Division of Waste Management re gulates releases from subterranean enclosures pursuant to 40 CFR 280. The Superfund Branch of the same agency regulates releases from surface tanks and all other releases of hazardous substances not specifically covered by another program.

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

- 2009

- 0640

- 06260

- 70 Organization: Kentucky Department for Environmental Protection

Commenter: R. Bruce Scott Commenter Type: State Government

Comment Excerpt Text: Kentucky supports regulation of coal combustion residuals under the authority of Subtitle D of RCRA. However, if the final decision is made to regulate pursuant to Subtitle C, the Commonwealth believes that EPA could strip all facets of the normal hazardous waste facility permit out of the regulations, except the permi tting of the ash surface impoundment and landfill. The requirements for a composite liner and groundwater monitoring for these types of facilities, along with public notice and hearing, would provide protection of the human health and

environment. Land dis posal restrictions, the identification of Solid Waste Management Units (SWMUs) per Section 3004(u), and other ancillary applications would not improve the liner and groundwater monitoring of the ponds and landfills. Utilities handle boiler cleaning fluids and petroleum products for vehicles and auxiliary power (to start the boiler, for instance). The boiler tube cleaning fluid is usually acidic and characteristically hazardous, only. Petroleum products are regulated by the Underground Storage Tank Branch fo r below

- grade tanks using 40 CFR 280 and the Superfund Branch for aboveground surface enclosures, both part of the Division of Waste Management. The State Fire Marshal also regulates petroleum storage tanks.

Response: The Agency acknowledges and apprecia tes 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

- 2009

- 0640

- 06300

- 45 Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company

Commenter: Chris M. Hobson Commenter Type: Electri c Utility Company

Comment Excerpt Text:34

Facility

- wide Corrective Action Requirements Under Subtitle C Are Impractical and Unnecessary.

Imposing facility

- wide, RCRA Subtitle C corrective action standards for large generating facilities would be hugely ex pensive and impractical. For example, Southern Company’s pre

screening estimate indicates that its total cost for assessment activities under Subtitle C corrective action would be approximately $104 million. This cost estimate does not include

corrective a ction, if any, under Subtitle C. Site

- wide corrective action under Subtitle C would involve assessment of not only CCBs but all other areas of the property where materials are currently or were historically located. Experience at sites subject to Subtitle C corrective action has shown that the process can entail broad

- based, multi

- year site assessments, which often result in limited remedial action that does not justify the effort.

Instead of imposing site

- wide corrective action, requirements that can be unduly expensive,

labor

- intensive, and time

- consuming, the regulations should allow utilities to demonstrate whether existing or closed CCB surface impoundments and/or landfills are protective of human health and the environment. Groundwater monitoring eff orts could largely provide this

information. Additional risk

- based information could include: watersupply well surveys to demonstrate distance to the nearest receptors; site hydrogeologic conditions (e.g., hydraulic conductivity, presence of confining beds ); natural attenuation capacity of the geologic media; groundwater modeling; and risk assessment. This approach provides a more effective and efficient way to protect human health and the environment.

Also, states are increasingly implementing risk

- based corrective action programs that, unlike the traditional Subtitle C corrective action program, provide a cost

- effective approach to site assessment and remediation. Rather than hamstring state regulators and the regulated community with the inflexible, cum bersome process associated with Subtitle C site

- wide corrective action requirements, EPA should take a state

- led regulatory approach to CCB management that will encourage continued innovative and effective, but lower cost, corrective action approaches

Res ponse : The Agency acknowledges and appreciates the comment. This comment is regarding a subtitle C rule. 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 al so referred to Unit VI for a discussion the specific groundwater monitoring and corrective action requirements included

in the rule.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 50 Organization: Southern Company on behalf of itself and its four subsidiari es: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company

Commenter: Chris M. Hobson Commenter Type: Electric Utility Company

Comment Excerpt Text:

Risk

- based Performance Criteria Are More Appropriate Than Prescri ptive Corrective Action Requirements.35

The inflexible, one

- size

- fits

- all nature of the Subtitle C hazardous waste program simply is not appropriate for the diverse nature of CCB disposal facilities. As EPA explained in reaching its final Regulatory Determ ination: if such wastes were placed in the Subtitle C universe, all ash disposal units would be required to meet specific liner and monitoring requirements. Since [CCB] sites vary widely in terms of topographical, geological, climatological, and hydrologic al characteristics (e.g., depth to groundwater, annual rainfall, distance to drinking water sources, soil type) and the wastes’ potential to leach into the groundwater and travel to exposure points is linked to such factors, it is more appropriate for indi vidual States to have the flexibility necessary to tailor specific controls to the site or region specific risks posed by these wastes. [Footnote 164: 58 Fed. Reg. 42466, 42477 (August 9, 1993).]

Instead of imposing the inflexible, monolithic site

- wide c orrective action Subtitle C regulatory framework, which can be unduly labor

- intensive, time

- consuming, and expensive, the regulations should allow utilities to demonstrate whether existing or closed CCB surface impoundments and/or landfills are protective of human health and the environment. Groundwater monitoring efforts could largely provide this information. For an in

- depth analysis of groundwater monitoring, see Parts II.B.4, 5 and 6 above, in reference to Subtitle D. The groundwater monitoring analysis is equally applicable to the Subtitle C proposal. Additional

risk

- based information could include: water

- supply well surveys to demonstrate distance to the nearest receptors; site hydrogeologic conditions (e.g., hydraulic conductivity, presence of

confini ng beds); natural attenuation capacity of the geologic media; groundwater modeling; and

risk assessment.

Also, states are increasingly implementing risk

- based corrective action programs that, unlike the traditional Subtitle C corrective action program, p rovide a cost

- effective approach to site remediation. Rather than hamstring state regulators and the regulated community with the inflexible, cumbersome process associated with Subtitle C site

- wide corrective action requirements, EPA should take a state

- le d regulatory approach to CCB management that will encourage continued innovative and effective, but lower cost, corrective action approaches

Response : The Agency acknowledges and appreciates the comment. This comment is regarding

a subtitle C rule. 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 Unit VI for a discussion the specific groundwater monitoring and corrective action requirements included

in the rule.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06838

- 17 Organization: Minnesota Pollution Control Agency (MPCA)

Commenter: Lisa Mojsiej on behalf of Tim Scherkenbach Commenter Type: State Government

Classification: Substantive

Comment Excer pt Text: The MPCA feels the Subtitle C approach would place unnecessary burden on state regulators and permit writers. Current Minnesota programs are more than adequate. However, if the USEPA36

promulgates regulations under Subtitle C, staff feel current cor rective action requirements under

the Subtitle C co

- proposal are adequate.

Response : The Agency acknowledges and appreciates the comment. This comment is regarding a subtitle C rule. The commenter is referred to Unit IV of the preamble for a discussio n on our decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06866

- 19 Organization: Washington State Department of Ecology

Commenter: Ken Zarker for K. Seiler Commenter Type: State Government

Comment Excerpt Text: If facility

- wide corrective action is established under Subtitle C for CCR, it would apply to all releases of CCR and any releases of dangerous wastes and dangerous constituents at the facility.

This would include releases of CCR stored for beneficial use as well as CCR stored for disposal. In order to determine if corrective action requirements should be modified Ecology recommends that EPA review current local or state corrective action requirements at CCR facilities. If current requirements are adequate, what would be gained by having Subtitle C requirements? Establishing Subtitle C requirements for facility

- wide corrective action at CCR facilities would be an additional, significant workload for states already managing corrective action responsibilities with budget and staffing limitations.

Response : The Agency acknowledges and appreciates the comment. This comment is regarding a subtitle C rule. The commenter is referred to Unit IV of the preamble for a discussion on our decision to regulate CCR unde r subtitle D of RCRA. The commenter is also referred to Unit VI for a discussion the specific groundwater monitoring and corrective action requirements included

in the rule.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 44 Organization: Maryland Departmen t of the Environment (MDE)

Commenter: Shari T. Wilson Commenter Type: State Government

Comment Excerpt Text: Implementation of Facility

- Wide Corrective Action. Under the Subtitle C option, EPA would impose facility

- wide corrective action requirements on facilities required to obtain a RCRA permit for management of CCRs. Including both the generating stations and the active disposal sites in Maryland, this is estimated to be in the range of 8

- 10 potential sites requiring corrective action. This would imp ose another complex demand on Maryland’s programs that are struggling to maintain the current level of effort. The proposal by EPA also fails to provide an adequate analysis of the practical difficulties associated with implementation of the facility

- wide corrective action for the purposes of determining whether modification of the requirement is warranted, as authorized by §3004(x) of RCRA.

Initiation and oversight of corrective action activities at a facility are at least as resource37

intensive for the oversight agency as issuing an operating or post

- closure permit, and are probably more resource intensive, since corrective action is an on going process requiring considerable oversight activity. Additional staffing needs at the state level are expected to be at least as great as for permitting. This will potentially affect progress at sites currently going through the corrective action process, if states are unable to obtain resources to hire staff to implement the newly imposed mandates.

Response : Th e Agency acknowledges and appreciates the comment. This comment is regarding a subtitle C rule. 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 referre d to Unit VI for a discussion the specific groundwater monitoring and corrective action requirements included

in the rule.

Section 4.4.7

- GW monitoring and corrective action (35204

- 35207)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06130

- 2 

### Organization: Mec klenburg County, North Carolina


### Commenter : Heidi Pruess Commenter Type: Local Government



### Comment Excerpt Text: LUESA has reviewed the EPA proposed rules regarding the disposal of CCRs and supports the implementation of the subtitle D option with the following recommended requirements:

o Existing surface impoundments should be required to install liners within 5 y ears or shut down.

o New surface impoundments and landfills containing CCRs should be required to install liners.

o Groundwater monitoring should be required for new and existing disposal units. Groundwater impacts should be grounds for site closure.

o States should be required to submit to EPA for approval a framework for adequate enforcement of the new requirements. EPA’s support and guidance are critical.

o EPA indicates that the contaminants of concern rarely exceed the RCRA hazardous waste

toxi city characteristic, but mobility of metals such as arsenic have leached to levels of concern due to the large size of some disposal units. Therefore, a framework should be developed that regulates ash basin and storage/disposal unit size, ash volume being stored on site, and the duration of storage.

Response: EPA’s risk assessment shows that existing CCR landfills that are either composite lined, clay

- lined or unlined provide a management scenario that ensures the disposal of CCR will

meet the RCRA section 4004 standard on a national level. EPA notes that exist ing CCR landfills are subject to groundwater monitoring, corrective action, and other requirements (except as38

noted) of the final rule, to assure that any groundwater releases from the unit are identified and promptly remediated.

Existing surface impoun dments with liners that meet the criteria established for any of the three specified liner types are considered to be an “existing lined CCR surface impoundments.” These existing lined surface impoundments can continue receiving CCR until the owner or ope rator makes a decision to initiate closure activities, provided the unit does not meet other requirements of the rule that independently mandate closure of the unit (i.e., location criteria(§§ 257.60

- 257.64) or structural integrity factors of safety(§ 257. 73)). Existing CCR surface impoundments with liners that do not fall into any of one of the three prescribed liner types are considered “existing unlined CCR surface impoundments”. Existing unlined CCR surface impoundments must cease receiving CCR and in itiate closure activities if an owner or operator determines, at any point in time, that as part of its groundwater monitoring program that the concentrations of one or more constituents listed in Appendix IV to part 257 are detected at a statistically sig nificant level above the groundwater protection standard established for that unit. EPA has concluded that existing unlined CCR surface impoundments should not be required to close prematurely if they are operating as designed and are complying with all t he requirements of the rule, including all groundwater protection standards. Allowing for the additional protections being promulgated in this rule (e.g., location restrictions, groundwater monitoring, corrective action, structural integrity criteria, ins pections and fugitive dust controls) the Agency believes that an unlined CCR surface impoundment that is not “leaking” (i.e., exceeding any groundwater protection standard) poses no more risk than an existing lined CCR surface impoundment that is

not “leak ing”. However, once a groundwater protection standard is exceeded (i.e., the unit is leaking”), the Agency has concluded that without any type of liner system in place, leachate will flow through the unit and into the environment unrestrained and the only effective corrective action strategy requires as its foundation

-- closure of the unit. Conversely, existing lined surface impoundments that exceed their groundwater protection standard are in a better position to manage the leak because it is generally caused by some localized or specific defect in the liner system which can more readily be identified and corrected. As such, today’s rule is not requiring existing lined CCR surface impoundment to close if an exceedance of a groundwater protection

standar d is detected; rather the Agency is affording the owner or operator with the ability to use corrective action measures to manage the situation, without requiring closure of the unit.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 42 

### Organization: Duke Energy


### Commenter : Mike Stroben Commenter Type: Electric Utility Company

Comment Excerpt Text: Duke Energy supports appropriate groundwater monitoring standards for CCR surface impoundments and landfills and the development of such standards under a RCRA S ubtitle D framework. Indeed, Duke Energy has been an industry leader in implementing groundwater monitoring programs for its active surface impoundments in accordance with the Industry Action Plan (“Plan”) that was initially developed by USWAG at the reque st of EPA and in conjunction with the Association of State and Territorial Solid Waste Management Officials. The groundwater monitoring program in the Plan was modeled after the EPA Industrial D guidance39

issued in 2003. As such, the Plan contains all the k ey components that are outlined in the groundwater monitoring requirements in 40 C.F.R. § 258.

The groundwater monitoring provisions in the Subtitle D option are taken largely from the MSWLF requirements outlined in 40 C.F.R. § 258. However, some key comp onents are missing. Unlike the groundwater monitoring programs under 40 C.F.R. § 258 and the Industrial D guidance, EPA’s Proposed Rule does not allow for state

- approved alternate groundwater monitoring programs for CCR landfills and surface impoundments.

Given the extreme range of natural variations in site geology and groundwater at CCR disposal units across the country, it will often be necessary for technical experts to adjust the specific groundwater monitoring standards that EPA establishes to accoun t for various site

- specific conditions and factors. The states are in the best position to accomplish this task. For example, when Duke Energy implemented groundwater monitoring around its surface impoundments in Indiana, it worked with the Indiana Departm ent of Environmental Management to obtain approval of an alternative method for evaluating groundwater quality without using standard

inter

- well or intra

- well comparison. Likewise, it is noted that groundwater in many areas of Indiana and the Carolinas, fo r example, naturally exceeds current groundwater standards due to influence from surrounding soil and rock (i.e. arsenic, manganese, and iron). Alternative groundwater monitoring programs and methods will take into account local and regional natural

occurr ences and allow a facility to continue to operate in full compliance with the standards and regulations that are protective of human health and the environment.

Duke Energy recommends that EPA include provisions for the Subtitle D option groundwater

monit oring rules applicable to CCR disposal units that are similar to those in 40 C.F.R. § 258. This would allow for the state (or a professional engineer or hydrologist, in the context of a self

implementing Subtitle D rule) to be authorized to establish an al ternative, but equally effective, groundwater monitoring program. Once again, EPA should include a mechanism in the Subtitle D option that will authorize the states to adopt these rules so that region

- specific issues can be properly addressed.

Response: The sections of RCRA that are applicable to CCRs

– sections 1008(a), 4004(a), and 4005(a) only authorize the Agency to establish minimum national criteria with which facilities must comply. EPA’s regulation does not preclude a state from incorporating the regulatory provisions being finalized today into state law and implementing and enforcing a single set of requirements. Nor does the regulation require the state to enforce the federal requirements, the decision to bring an action under 7002 lies entirely within the state’s discretion.

We are not able to require states to develop programs or approve elements of a federal program. While states may have programs for the regulation of CCRs, which in some cases may be more stringent than today’s final rule, the federal program must be written as though states do not have a CCR disposal program in place. Because this rule is self

- implementing and there is no regulatory entity available to judge the reasonableness of the desired alternatives, EPA has

determine d that it is not able to allow alternatives in most cases, and instead is establishing minimum technical criteria for these units. Since the states can be more stringent, they can40

require additional monitoring wells, additional aquifers be monitored and ad ditional parameters be added to the detection monitoring list or the assessment monitoring list, for example.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 68 

### Organization: Duke Energy


### Commenter : Mike Stroben Commenter Type: Electric Utility Company



### Comment Excerpt Text: Duke Energy supports a Subtitle D program that will involve groundwater monitoring controls specifically designed to detect any contamination from the CCR waste management units before any contamination potentially moves off

- site. If Duke Energy determines an impact to groundwater has occurred at one of its facilities, the appropriate federal and/or state regulatory agency is notified. Duke Energy then works with those regulators in determining the appropriate steps to be taken to miti gate any impact to groundwater. Duke Energy has been involved and worked with the North Carolina Department of Environment and Natural Resources, Indiana Department of Environmental Management, Ohio EPA, and Kentucky Department of

Environmental Protection in determining the appropriate remediation steps to be taken when an impact to groundwater has been detected. Further, Duke Energy has taken measures to help reduce or eliminate any potential future groundwater impacts at other Duke Energy facilities.

Duke Energy has voluntarily initiated groundwater monitoring around active CCR surface impoundments used to dispose of coal ash in all of the states in which it operates. The involvement and interaction that Duke Energy has with the various regulatory agencies in the states in which it operates demonstrates how a state

- implemented, non

- hazardous waste program for CCR under Subtitle D will be protective of human health and the environment.

Response: All ground water monitoring systems must consist of a suffici ent number of appropriately located wells (at least one upgradient and three downgradient wells) in order to yield ground water samples from the uppermost aquifer that represent the quality of background ground water and the quality of ground water passing the CCR waste boundary. The objective of a groundwater monitoring system is to intercept groundwater to determine whether the groundwater has been contaminated by the CCR disposal unit. Early contaminant detection is important to allow sufficient time f or corrective measures to be developed and implemented before sensitive receptors are significantly affected. To accomplish this, the rule requires that wells be located to sample groundwater from the uppermost aquifer at the waste unit boundary.

These re quirements have been adopted without fundamental change from the proposal.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08251

- 11 

### Organization: Massachusetts Department of Environmental Protection


### Commenter : James C. Colman Commenter Type: State Government

Comment Excerpt Text: MassDEP recommends that the final EPA regulations include the following critical provisions: • National minimum design and performance standards for disposal in landfills that include requirements for a composite liner, leachate coll ection, groundwater monitoring and final closure41

• Regulation of beneficial uses of CCR, including potential exemption from further regulation for certain encapsulated uses of CCR in cement products or similar encapsulated uses in products

• State or f

ederal compliance assurance for beneficial uses to ensure that such uses will be protective of public health and the environment

• Financial assurance for landfill closure and post

- closure monitoring and maintenance

• Allowance for states to be more st ringent than the final EPA rules

• Clear enforcement authority and permitting authority for states

Response: Groundwater response: EPA is promulgating national minimum standards for groundwater monitoring at existing and new CCR landfills and surface impoundments. The states are allowed to be more stringent than EPA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08848

- 4 

### Organization: American Coalition for Clean Coal Electricity (ACCCE)


### Commenter : Paul Bailey Commenter Type: Advocacy Group

Comment Excerpt Text: As EPA has acknowledged, the Subtitle D co

- proposal would impose dam safety and minimum technology requirements, as well as other management standards. These requirements are virtually identical to those that would be imposed under the Subtitle C co

- proposal. ACCCE agrees with EPA's judgment that those engineering controls

-- including, in particular, the requirements to conduct groundwater monitoring and take corrective action

-- will adequately minimize the potential for adverse environmental conse quences from the ongoing management of CCRs in landfills and surface impoundments. For these reasons, it is not necessary to regulate CCRs under Subtitle C given that the proposed Subtitle D requirements will provide virtually an

identical level of environ mental protection and safety benefits and will do so at a much lower cost than under the Subtitle C option.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08864

- 7 

### Organization : JEA


### Commenter : Athena Mann Commenter Type: Electric Utility Facility

Comment Excerpt Text: Regarding the Subtitle D or D Prime approaches, JEA would point out that the onesize fits all national standards being proposed do not allow enough flexibility for utilities to op erate efficiently, and using corporate web sites as an enforcement tool would seem to be a path toward unproductive litigation. More flexibility is needed in the framework of the regulations to allow42

for equally protective but different liner systems, such as dual geomembrane systems, and to

consider State

- approved sitespecific groundwater monitoring programs that may deviate from the proposed standards.

Response: Due to the fact that EPA cannot require states to develop a permitting program for

this regulation, we are not able to allow many of the site

- specific flexibilities that are allowed in other EPA programs, such as under the regulatory program for MSWLFs. The Agency does not believe allowing alternate groundwater monitoring programs, such as t hose allowing only a subset of wells be monitored, would be workable in the context of a self

- implementing rule, because there is no regulatory entity to judge the reasonableness of the desired alternatives. The requirements of the groundwater monitoring program in this rule allow as much flexibility as we believe we can accommodate, given the lack of oversight by a permitting authority, and the need to demonstrate that the rule provisions will achieve section 4004(a)’s statutory standard.



### Comment Number : EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 32 

### Organization: Arizona Department of Environmental Quality (ADEQ)


### Commenter : Benjamin H. Grumbles Commenter Type: State Government

Comment Excerpt Text: Pg. 35247, Section 257.93: The proposed rule will require extensive monitoring and statistical analysis of groundwater data that is not compatible with groundwater monitoring requirements under Arizona’s Aquifer Protection Program.

Response: The Agency understands that promulgating these national minimum criteria governi ng the disposal of CCR in landfills and surface impoundment under the authority of sections 1008(a), 4004, and 4005(a) of RCRA may result in criteria that are not compatible with existing state programs. 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 inco rporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10495

- 57 

### Organization: Earthjustice, et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text: The Proposed Subtitle D Regulations Are Significantly Weaker Than Existing Subtitle D Regulations

Even if it were appropriate to regulate CCRs under subtitle D

-- which it certainly is not

-- EPA’s proposed subtitle D scheme is even less stringent than the e xisting subtitle D criteria that now apply to CCR disposal. In other words, EPA’s proposed D option would make the current

untenable situation even worse.43

In two determinations, EPA admits that the current regulatory scheme is inadequate to comply

with se ction 4004(a) criteria and that additional regulations under subtitle D are warranted. However, the regulatory scheme EPA proposes eliminates the few key protections that apply now. The groundwater protection provision currently applicable to coal ash, sec tion 257.3

- 4, requires utilities to close dumps that contaminate groundwater with arsenic, selenium, lead, cadmium and other common coal ash constituents. According to the regulations, a dump that contaminates groundwater is an open dump, and open dumps ar e simply prohibited and must be closed. [Footnote 340: 40 C.F.R. § 257.3

- 4 and 42 U.S.C. § 6945(a). See also discussion in Section III.B.2, supra.].

EPA’s proposed regulations provide far less protection to groundwater. First, EPA has entirely

removed the groundwater protection requirement from the current scheme. [Footnote 341: 75 Fed. Reg. 35240. See proposed 40 C.F.R. § 257.40.]. Section 257.3

- 4 no longer applies to coal ash dumps. Under EPA’s new scheme, such dumps can release deadly contaminants into groundwater, and these dumps remain in compliance until there is a “statistically significant” increase in a listed parameter that is voluntarily reported by the operator of the dump to the state. Worse still, the operators do not have to monitor for the t oxic constituents that are common at coal ash dumps, namely any of the heavy metals such as arsenic, cadmium, chromium, lead, mercury, nickel or selenium.

Even when a statistically significant exceedance is found by the operator to occur, there is no

req uirement to close the dump. Rather the operator must simply increase the extent of its monitoring. Only after finding that the dump is indeed contaminating groundwater must something be done. However, all that is required is that the utility develop an ass essment of corrective measures within 90 days of providing notice that contamination is occurring. Following the assessment, the utility must implement a corrective measure of its choosing. There is no state or federal oversight to ensure that the company moves quickly enough or resolves the problem in the end.

Response:

The sections of RCRA that are applicable to CCRs

– sections 1008(a), 4004(a), and 4005(a) only

authorize the Agency to establish minimum national criteria with which facilities must comply.

RCRA sections 1008(a)(3) and 4004(a) delegate broad authority to E PA to establish regulations governing the management of solid waste. Under section 4004(a) EPA is charged with establishing requirements to ensure that facilities will be classified as sanitary landfills “only if

there is no reasonable probability of adver se effects on health or the environment from the disposal of solid waste” at the facility. Or in other words, under section 4004(a) EPA is charged

with issuing regulations to address all “reasonable probabilities of adverse effects” (i.e., all reasonably a nticipated risks) to health and the environment from the disposal of solid waste.
Section 1008(a)(3) expands EPA’s authority to address the risks from any of the listed activities. Specifically, EPA is authorized to establish requirements applicable to “st orage, transportation, transfer, processing, treatment, and disposal of solid waste.” (42 U.S.C. §§ 6907(a), 6903(28)).

EPA interprets the standard in section 4004(a) to apply equally to criteria issued under sections 1008(a)(3) and 4004(a); namely that the criteria must ensure that a facility is to be classified as a44

sanitary landfill, and thus allowed to continue to operate, “only if there is no reasonable probability of adverse effects on health or the environment” from either the disposal or other

so lid waste management practices at the facility. Thus, under the combined authority conferred by sections 1008(a)(3) and 4004(a), a facility is an “open dump” if it engages in any activity involving the management of solid waste that does not meet the stand ard in section 4004(a); or in

other words, any activity involved with the management of solid waste that presents a reasonable probability of causing adverse effects on health or the environment. EPA also interprets these provisions to authorize the establ ishment of criteria that define the manner in which facilities upgrade or close, consistent with the standard in section 4004(a), to ensure there will be no reasonable probability of adverse effects on health or the environment.

As discussed previously, C ongress created a regulatory structure that limited EPA’s role to the

creation of national criteria that would operate even in the absence of a regulatory entity to

oversee or implement the criteria. Under RCRA section 4005(a), upon promulgation of criteri a under section 1008(a)(3), any solid waste management practice or disposal of solid waste that

constitutes the ‘‘open dumping’’ of solid waste is prohibited. The federal standards apply directly to the facility (are self

- implementing) and facilities are d irectly responsible for ensuring

that their operations comply with these requirements. States are not required to incorporate or implement these requirements under any state permitting program or other state law requirement,

and EPA is not authorized to im pose such requirements, directly or indirectly on the states.
States and citizens may enforce this prohibition (and therefore, the federal criteria) using the authority under RCRA section 7002. 1

EPA’s regulation does not preclude a state from incorporating the regulatory provisions being finalized today into state law and implementing and enforcing a single set of requirements. Nor does the regulation require the state to enforce the federal requirements, the decision to bring an

action under 7 002 lies entirely within the state’s discretion.

The commenter is referred to Unit VI of the preamble to the final rule for a complete discussion of the groundwater monitoring and corrective action requirements as well as the closure requirements. The c ommenter is also referred to Unit IX for a discussion on how EPA expects states to incorporate the CCR rules into state solid waste management plans. Toxic constituents (metals) do have to be monitored during assessment monitoring and the facility will hav e to initiate corrective action if a statistically significant increase over groundwater protection standards is detected. If the unit is an unlined surface impoundment, it will be required to close.

1 EPA also may act if the handling, storage, treatment, transportation, or disposal of such wastes may present an imminent and substantial endangerment to health or the environment, pursuant to RCRA

section 7003.45



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10498

- 14 

### Organ ization: Florida Electronic Power Coordinating Group, Inc. (FCG)


### Commenter : Carl Eldred Commenter Type: Electric Utility Company

Comment Excerpt Text: As drafted, the subtitle D prime option does not provide for a groundwater monitoring point of compliance beyond the waste boundary. While it appears that this may be a drafting error, this is a significant issue that must be clarified and corrected. Many of the requirements set forth in the Proposed Rules were taken from existing rules pertaining t o Municipal Solid Waste Landfills (“MSWLF”), set forth in 40 C.F.R. part 258. In particular, EPA noted that it had “largely modeled” the proposed groundwater monitoring requirements after the existing requirements for MSWLFs. 75 Fed. Reg. 35205. One such p rovision is proposed 40 C.F.R. § 257.91, which establishes the installation requirements for groundwater monitoring systems. This provision, however, differs substantially from its counterpart in the MSWLF regulations.

Specifically, 40 C.F.R. § 258.51(a)( 2) requires a MSWLF to install a groundwater monitoring system that yields samples that “[r]epresent the quality of groundwater passing the relevant point of compliance as specified by an approved State.” Furthermore, the rule provides that the downgradien t monitoring system must be installed at the point of compliance or at the waste boundary in unapproved states. 40 C.F.R. § 258.51(a)(2). The relevant point of compliance may be established by an approved state but cannot be located greater than 150 meters from the waste management unit boundary on land owned by the facility. 40 C.F.R. § 258.40(d).

As drafted, however, the proposed subtitle D prime option does not allow for a point of compliance beyond the waste boundary. Specifically, proposed 40 C.F.R. § 257.91(a)(1) requires the installation of a groundwater monitoring system that yields samples that “[r]epresent the quality of groundwater passing the waste boundary.” 75 Fed. Reg. 35246

- 47 (emphasis added). Furthermore, the downgradient monitoring system must be installed at the waste boundary. Id. There is no exemption or provision for an alternative point of compliance included in the subtitle D prime option.

It appears that this may be an oversight because EPA noted that it would identify its

modific ations to the existing MSWLF groundwater monitoring requirements; yet, no modifications to the point of compliance were noted. Id. at 35205.

Response: The point of compliance is the waste boundary as specified in §257.91. The discussion on page 35203 of the proposed rule that states, a relative point of compliance as being 150 meters from the unit boundary down gradient from the unit, or the property bou ndary if the point of compliance is beyond the property boundary is in the context of soliciting comment on whether any subtitle D option should allow facilities to use an alternative design. This point is made clear by the statement that follows this poin t

— that is, “Although the existing part 258 requirements allow for such a demonstration, EPA is not proposing such a requirement in today’s rule.”46

The objective of a groundwater monitoring system is to intercept groundwater to determine whether the ground water has been contaminated by the CCR disposal unit. Early contaminant detection is important to allow sufficient time for corrective measures to be developed and implemented before sensitive receptors are significantly affected. To accomplish this, the rule requires that wells be located to sample groundwater from the uppermost aquifer at the waste unit boundary.

Due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the sit e

- specific flexibilities that are allowed in other EPA programs, such as under the regulatory program for MSWLFs. The Agency does not believe allowing alternate groundwater monitoring programs, such as those allowing a modification to the point of complia nce, would be workable in the context of a self

implementing rule, because there is no regulatory entity to judge the reasonableness of the desired alternatives. The requirements of the groundwater monitoring program in this rule allow as much flexibility as we believe we can accommodate, given the lack of oversight by a permitting authority, and the need to demonstrate that the rule provisions will achieve section 4004(a)’s statutory standard.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10498

- 15 

### Organizatio n: Florida Electronic Power Coordinating Group, Inc. (FCG)


### Commenter : Carl Eldred Commenter Type: Electric Utility Company

Comment Excerpt Text: These existing facilities are required to maintain a groundwater monitoring plan that includes downgradient detection wells located within the facility’s ZOD in addition to compliance wells located at or immediately adjacent to the compliance line of the zone of discharge. Rule 62

- 701.510(3), F.A.C. [Footnote 13: As noted previously, pursuant to Rule 62

- 701.510( 1), F.A.C., this regulatory provision does not apply to landfills in operation prior to January 6, 1993. As noted above, however, FDEP typically looks to this rule when establishing groundwater monitoring requirements in a power plant’s conditions of certi fication or other applicable permit.] If any of the monitoring parameters are detected at levels significantly above background levels in the detection wells, preventative measures, such as increased sampling, must be implemented. Rule 62

- 701.510(7)(a), F. A.C. If sampling results indicate that water quality standards or criteria are likely to be violated outside the zone of discharge, a prevention measures plan must be submitted to FDEP and implemented. Rule 62

- 701.510(7)(a)5., F.A.C.

Corrective action is r equired when any contaminants are detected in compliance wells, in exceedance of background levels and applicable state FDEP water quality standards or criteria.

Rule 62

- 701.510(7)(c), F.A.C. These groundwater regulatory concepts are particularly important because many Florida power plant facilities are “existing installations” under FDEP’s groundwater rules and have FDEP

- authorized ZODs that extend laterally to each facility’s property boundary. In some instances, this may exceed 150 meters. If the propose d point of compliance were imposed (i.e., at the waste boundary), or even the part 258 requirements, FCG

members could be in immediate non

- compliance with this requirement, even though they have operated for many years in accordance with FDEP regulations a nd have not created any off

- site impacts to drinking water. Thus, not only must the proposed subtitle D prime option provide for47

a point of compliance beyond the waste boundary, it must also provide for a state

- approved alternative that may extend beyond 1 50 meters. Without such flexibility, many FCG members

with CCR landfills could be forced to initiate corrective measures to meet maximum concentration levels in 40 C.F.R part 141 or background levels.

Such action is neither warranted nor necessary. There have been no off

- site impacts to drinking water resources in Florida associated with the operation of CCR landfills or surface impoundments.

Response: The point of compliance is the waste boundary as specified in §257.91. The objective of a groundwater monitoring system is to intercept groundwater to determine whether the groundwater has been contaminated by the CCR disposal unit. Early contaminant detection is important to allow sufficient time for corrective measures to be developed and implemented

be fore sensitive receptors are significantly affected. To accomplish this, the rule requires that wells be located to sample groundwater from the uppermost aquifer at the waste unit boundary. The facilities in Florida will have to install groundwater monito rs at the waste boundary. If those wells ultimately detect contamination of Appendix IV constituents that are shown to be above the groundwater protection standards using the statistical methods specified in the rule, the unit

would have to initiate corre ctive action. 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

- 2009

- 0640

- 11177_CHI

- 008

- 3 

### Organization: Duke Energy


### Commenter : Richard Meiers Commenter Type: Electric Utility Company

Comment Excerpt Text: Even assuming that the allegations have any factual basis, Duke Energy supports a Subtitle D program that will involve groundwater monitoring controls sp ecifically designed to detect any contamination from the CCR waste management units before contamination moves off

- site. If Duke determines an impact to ground water has occurred at one of its facilities, the appropriate federal or state regulatory agency are notified and we work with those regulators in determining the appropriate steps to be taken to remediate the impact to groundwater. Further, Duke has taken measures to reduce or eliminate any known potential future impacts at the other Duke

facilities.

Response: All ground water monitoring systems must consist of a sufficient number of appropriately located wells (at least one upgradient and three downgradient wells) in order to yield ground water samples from the uppermost aquifer that represent the quality of b ackground ground water and the quality of ground water passing the CCR waste boundary. This is the same performance standard included in the proposed rule. The objective of a groundwater monitoring system is to intercept groundwater to determine whether the groundwater has been contaminated by the CCR disposal unit. Early contaminant detection is important to allow sufficient time for corrective measures to be developed and implemented before sensitive receptors are significantly48

affected. To accomplish this, the rule requires that wells be located to sample groundwater from the uppermost aquifer at the waste unit boundary.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0259

- 6 

### Organization: Environmental Integrity Project (EIP)


### Commenter : Eric Schaeffer Commenter Type: Advocacy Group

Comment Excerpt Text: EPA Rule Should Establish Minimum Parameters for Groundwater Monitoring

A number of commenters recommended giving states the flexibility to determine which contaminants to monitor. We respectfully disa gree with this suggestion. EPA should, at a minimum, require monitoring of all primary pollutants for which Maximum Concentration Levels have been determined under the Safe Drinking Water Act, and all pollutants for which

health advisories have been develo ped that are characteristic of coal ash sites, including boron, sulfates, cobalt, molybdenum, and strontium. Monitoring should reflect the applicable standard, e.g., monitoring should not be limited to the dissolved fraction where the MCL is based on total

concentration. Our reasons are as follows:

1) As noted earlier, the TCLP does not accurately predict the leaching propensity of CCW, either under field conditions or over an extended period of time. Furthermore, the waste characteristics may evolve over time, depending on changes in the type of coal burned at the plant, evolving air pollution control requirements that create new treatment residues, and whether other wastes (e.g., boiler blowdown or coal pile runoff) in the disposal pits used for CCW. Once wells have been sunk, the lab analysis of samples for most pollutants is inexpensive, and certainly affordable for the power companies that dispose of this waste.

2) EPA has not developed an MCL for boron and other pollutants that are not often found in public water supply systems. That does not mean that these contaminants cannot pose a serious health threat to the fifteen percent of American households that depend on private wells for their drinking water. Groundwater pollution levels at a number of CCW sites exceed EPA Health Advisories for these pollutants by a factor of ten or more.

3) The lack of consistent monitoring makes it more difficult to determine why contaminants are elevated and some sites. Background levels are sometimes not identified or rely on wells placed too close to ash sites, key parameters like arsenic are not included, monitoring frequency varies widely (making it difficult to discern trends), and sometimes only dissolved concentrations are reported for standards that are based on total concentrations.

4) Some sites, e.g., surface impoundments, appear to be exempt from groundwater monitoring requirements that apply to landfills.

Clearer Benchmarks Needed for Corrective Action49

It is important to establish minimum expectations for the cleanup of CCW sites that have contaminated either groundwater or surface water. We understand that site specific characteristics and the difficulty of removing contaminants, especially metal compounds, once they have accumulated in aquifers means that cleanup schedules may need to vary. But the goal should always be to restore the aquifer or surface water to background conditions predating CCW disposal. Furthermore, power plants should not be allowed to continue to dispose of coal

ash in sites that hav e been shown to be leaking at levels that exceed or threaten to exceed MCL’s

or health advisories.

Some states have pointed out that almost all groundwater monitoring is limited to wells within the boundary of the disposal site or power plant, suggesting that further action will be taken if pollution crosses the site boundary. But how and when the state will know whether offsite contamination has occurred is too often left to the imagination, since there is so little data beyond

the fenceline that can be u sed to measure offsite risk. Of course, by the time that pollution has contaminated adjacent private or public property, the cost of cleanup will have accelerated, and may be prohibitive.

Last but not least, it is difficult to determine from the comments submitted by state agencies what actually triggers the obligation to clean up a site. Should health

- based standards be limited to those pollutants for which an MCL has been established, but not for those subject to a health advisory, even if contamination is ten times greater than the exposure limits recommended by EPA? Should groundwater be protected for future generations, and how should both monitoring and corrective actions apply to prevent the gradual buildup of contaminants over decades?

Should corre ctive action not be required when CCW contaminants drain into a river or estuary from an adjacent aquifer? [Footnote 4: EIP notes the Oklahoma has noted that a slurry wall may be installed to prevent CCW contaminants from the Northeastern site from being r eleased to the Verdigris River. In most other cases, state agencies provide little information about how much monitoring data is needed to trigger corrective action requirements, or how the cleanup standard will be determined.]

Response: With regard to the groundwater monitoring questions and comments, the rule includes a phased approach to monitoring. The first phase is detection monitoring where indicators would be monitored to determine whether groundwater was potentially being

conta minated. In selecting the parameters for detection monitoring, EPA chose constituents that are present in CCRs, and would rapidly move through the subsurface and thus provide an early detection as to whether contaminants were migrating from the CCR disposa l unit. The detection monitoring parameters do not necessarily have MCLs. When a statistically significant increase over background levels is detected for any of these parameters, the rule would require the facility to begin an assessment monitoring prog ram to determine if releases of CCR constituents of concern had occurred. The assessment monitoring constituents were chosen because of their presence in CCRs, toxicity, presence in damage cases, or relevance in the risk assessment carried

out for the rul e. Most but not all of those constituents have MCLs.

No surface impoundments will be exempt from groundwater monitoring. It is required at all surface impoundments and landfills. Monitoring is conducted at the unit boundary, so50

contamination is detected as early as possible and certainly before it has a chance to move off

site.

Regarding the corrective action questions and comments, the goal for corrective action is to select a remedy and carry out that remedy such that the groundwater protection stan dards are attained, any contaminated material that was released from the CCR is removed, and the source

of the release is controlled to eliminate further releases of hazardous constituents. The Agency recognizes that restoring an aquifer or surface water to background conditions predating the disposal of CCRs would be ideal. However, that will not always be possible. Therefore, the rules establish minimum expectations in the cleanup of CCR disposal sites, as well as the fact that such cleanups may vary d ue to site

- specific characteristics. Specifically, §257.98 provide such expectations

— that is, the facility will select a remedy that will attain the groundwater protection standards and control the source(s) of releases (§257.97(b)). The owner or operator must also take any interim measures necessary to reduce the contaminants leaching from the CCR disposal unit and/or potential exposures to human or ecological receptors (§257.98(a)(3)). The owner or operator must achieve compliance with the groundwater pr otection standards (either MCLs or background levels) and demonstrate that for three consecutive years. If the CCR disposal unit is a new unit, the background levels will be those predating the disposal of CCRs. If the CCR disposal unit is an existing uni t, it is unlikely that background levels predating the

unit will be available.

If the CCR disposal unit is an unlined surface impoundment, in addition to carrying out the necessary remedial activities, the unit will be required to close.

Section 4.4.7.1

- EPA generally solicits comment on whether relying on existing GW monitoring and corrective action requirements for MSWLFs and CESQG facilities, as modified, are appropriate for CCR LFs and SIs (35205)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06198

- 6 

### Organization: Ameren Corporation


### Commenter : Paul R. Pike Commenter Type: Electric Utility Company



### Comment Excerpt Text: Ameren supports appropriate groundwater monitoring standards for CCR surface impoundments and landfills and we support the development of such standards under a RCRA Subtitle D framework, which is modeled largely after the groundwater monitoring programs for MSWLFs

under 40 C.F.R. Part 258 and for non

- MWSLFs that may receive conditionally exempt small quantity generator wastes under 40 C. F.R. Part 257, Subpart B. Id. at 35205. Unfortunately, unlike the groundwater monitoring programs for these units under Parts 258 and 257, the Agency is not proposing to allow an alternate list of indicator parameters to be used in the proposed CCR groundw ater monitoring program because of the lack of direct state oversight and "EPA's information on CCRs indicates that their composition would not be expected to vary such that the parameters are inappropriate." Id. at 35205

- 07.

From a technical perspective , given that site

- specific factors are critical for establishing51

constituents and corresponding concentrations for detection and assessment monitoring, it is important that EPA authorize registered professionals to certify variances from the otherwise appl icable parameters used for detecting constituents in groundwater and assessing statistically significant increases from background for these parameters. Given the extreme range of natural variations in site geology and groundwater at CCR disposal units acr oss the country, it will often be necessary for technical experts to adjust the specific groundwater monitoring standards that

EPA establishes to account for various site

- specific conditions and factors. Further, any variances to the list of regulatory par ameters would only be available if approved by a qualified state program (under, for example, a state regulatory regime approved by EPA under RCRA Section 4OO5(c)) or if certified by a registered professional and such certifications are recorded

in a facil ity's operating record, filed with the state and posted on the facility's publicly available internet site. As other critical elements of the Subtitle D program are predicated on compliance certifications by these technical professionals, there is no reaso n not to authorize these professionals to identify and certify, where appropriate, necessary adjustments to the groundwater monitoring parameters based on site

- specific factors.

Ameren recommends that EPA include language in the Subtitle D groundwater mo nitoring rules for CCR disposal units similar to that in the MSWLFs rules allowing for the state or a registered professional (in the context of a self

- Implementing Subtitle D rule) to delete any constituents from otherwise required groundwater monitoring "if it can be shown that the removed constituents are not reasonably expected to be in or derived from the waste contained in the unit." 40 C.F.R. § 258.54(a)(I). Similarly, the state or a registered professional should be

authorized to establish an altern ative list of indicator parameters In lieu of some or all of the otherwise specified indicator parameters "if the alternative parameters provide a reliable indication of inorganic releases from the [CCR) unit to the groundwater." Id. at 258.54(a)(2).

Wit h respect to the initial list of indicator parameters proposed by EPA, we agree that it generally focuses on the mobile indicator parameters in leachate from CCR disposal units. 75 Fed. Reg. at 35253 (proposed Appendix III to 40 C.F.R. Part 257). The poten tial for false positives would increase significantly if the parameter list was burdened with a host of trace constituents that are much less mobile and are unlikely to be present in CCR leachate without the presence of the proposed indicator parameters. T hat being said, we believe that the proposed indicator parameter list should be revised to more closely track the nature of materials that are disposed of in CCR surface impoundments and landfills. We are particularly concerned that the proposed detection monitoring constituents

- "conductivity," '1luoride" and "sulfide"

- are unlikely to assist in efforts to determine whether CC R disposal units have released constituents into groundwater. In fact, the use of "conductivity" as a parameter may lead to false positives and there is no need for this parameter when the Total Dissolved Solids parameter is a much more accurate test for the same type of potential releases. Fluoride and sulfide simply are not good indicator parameters because these constituents gener ally are not present in high concentrations

in CCR leachate and therefore a generic requirement that they be monitored for all CCR disposal units is not warranted. Therefore, we urge EPA to remove these parameters from the detection monitoring list. We als o recommend that the remaining detection monitoring constituents be added to the assessment monitoring list to assist in assessing statistically significant increases in

the detection constituents.52

Additionally, Ameren urges EPA to limit the list of asse ssment monitoring constituents to the primary drinking water constituents for which a maximum contaminant level has been established (as well as the detection monitoring parameters, as addressed above). These primary constituents are the only materials EPA has found to contribute to adverse health effects; all other listed constituents have not been linked to health effects and EPA should not require groundwater remediation for these parameters. Accordingly, EPA should remove aluminum, iron, manganese and m olybdenum from the list of constituents for assessment monitoring.

Response: Due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are allowed in other EPA programs, such as under the regulatory program for MSWLFs. The Agency does not believe allowing alternate groundwater monitoring programs, such as those allowing only a subset of constituents be monitored, would be workable in the context of a self

- implementing rule, because there is no regulatory entity to judge the reasonableness of the desired alternatives. The requirements of the groundwater monitoring program in this rule allow as much flexibility as we believe we can accommodate, given the lack of oversight by a permitting authority, and

the need to demonstr ate that the rule provisions will achieve section 4004(a)’s statutory standard.

Contrary to the commenter’s characterization, the purpose of detection monitoring is to provide for early detection of whether contaminants are migrating from the CCR disposal unit. EPA selected contaminants for the detection monitoring phase that are present in CCRs and would move rapidly through the subsurface, such as boron and sulfate. By requiring monitoring of these key parameters, including pH, TDS, fluoride and chlorid e, which are long proven as precursor contaminants to higher toxicity CCR contaminants, leakage from CCR disposal units will be caught in a timely manner. In other words, these are the contaminants that would be expected to be detected earliest in any mon itoring program. Because detection of any of these “early warning” contaminants triggers a switch to assessment monitoring involving a more comprehensive list of contaminants, (including a variety of metals, anions, and radioactivity sources, selected on the merits of constituting primary or secondary MCLs and/or their prevalence in documented damage cases), it is unlikely that “skipping” detection monitoring would provide any quicker detection of leakage from the unit.

EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions. However, as noted previously, due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not

able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only authorized to establish minimum national standards under sections 1008(a)(3) and 4004(a). According ly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of

adverse effects on health or the environment” nationwide. This mean s that EPA must design the program to account for the range of conditions at sites across the country

– both those that are more sensitive and those that are less sensitive. While it is theoretically possible that this may result in “overprotection” at so me sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human health and the environment across the country. EPA accomplished this through a combination of perform ance standards, which inherently provide flexibility in that it does not specify a single53

method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. For example, the de tection monitoring parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those parameters that are regularly monitore d in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate whether constituents are leaking from the unit. The assessment monitoring list, which includes a larger numb er of constituents, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a more extensive monitoring program, the performance standards in §§257.91 and 257.93 would in fact require the facility to install one.

The Agency has determined that the appropriate parameters to include in the detection monitoring list (Appendix III) are: boron, calcium, chloride, fluoride, pH, sulfate and TDS. The purpose of detection monitoring is to provide for early detection of wh ether contaminants are migrating from the CCR disposal unit. EPA selected contaminants for the detection monitoring phase that are present in CCRs and would move rapidly through the subsurface, such as boron and sulfate. By requiring monitoring of these k ey parameters, including pH, TDS, fluoride and chloride, which are long proven as precursor contaminants to higher toxicity CCR contaminants, leakage from CCR disposal units will be caught in a timely manner. In other words, these are the

contaminants tha t would be expected to be detected earliest in any monitoring program.

The Agency disagrees that fluoride should be removed from the detection monitoring list

. Specifically, fluoride will be retained in the detection monitoring list because it is part of the inherent halogen content of coal that is released during the combustion of coal to form acids as the flue gas cools. It is then captured in FGD scrubbers and, based on the concentration of fluoride present in coal, it will is likely be present in CCR wastewaters at high enough concentrations to have the potential to leach from the CCRs. As the number of mandatorily

installed scrubbers has been steeply increasing in the last decade, fluoride, a primary MCL, needs to be monitored as part of the detectio n monitoring program as an early indication of potential groundwater contamination. The Agency has deleted conductivity from the detection monitoring program because it is merely a proxy for TDS, which is included on the list of parameters to analyze durin g detection monitoring. The Agency has also deleted sulfide because it occurs in groundwater only under strongly reducing conditions, and such conditions are rather rare at CCR disposal facilities. Once a facility enters into assessment monitoring, the de tection monitoring parameters will continue to be monitored.

Regarding the comment suggesting only those constituents with MCLs be present on Appendix IV, the constituents on Appendix IV in today’s rule all have MCLs with the exceptions of cobalt,

lithium and molybdenum. Molybdenum has also been found in a number of proven and potential damage cases and is important from a risk screening perspective. In the risk assessment, cobalt was found to be a risk driver for certain disposal practices (acidic waste s), so it is being added to Appendix IV. Lithium is being added to Appendix IV because it has been detected in several proven and potential damage cases at levels exceeding EPA’s Regional Screening Level (RSL)54

of soil to groundwater and has been determined as potentially toxic if consumed conc urrently with certain drug types. 2



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 9 

### Organization: We Energies


### Commenter : Art Covi Commenter Type: Electric Utility Company

Comment Excerpt Text: COMMENT: The existing groundwater monitoring and corrective action requirements for MSWLFs and CESQG facilities as modified are appropriate for CCR landfills. The proposed monitoring lists outlined in Part 257 for Detection Monitoring and Assessment Monitoring seems appropriate for monitoring ash landfills.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 29 

### Organization: Tennessee Department of Environment and Conservation (TDEC)


### Commenter : Paul L. Sloan

Commenter Type: State Government

Comment Excerpt Text: New landfills and expansion of existing landfills to be used for the disposal of CCR should be required to meet RCRA Subtitle D municipal solid waste and design criteria including geologic stability assessment, engineering design criteria, operational standards, groundwater monitoring, quarterly inspections, closure (including cap), post

- closure monitoring and maintenance, financial assurance and notification of CCR disposal on the property deed. A seismic stabi lity analysis should be performed as part of the initial site suitability analysis. The landfill or landfill expansion should be designed to have a structural stability safety factor of 1.5 and a seismic safety factor of 1.5.

Response: The commenter is r eferred to Unit IV of the prea mble for a discussion of

EPA’s decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to

2 EPA’s Regional Screening Level (RSL) Soil to Groundwater Supporting Table (TR=1E

- 6, HQ=1) May 2014/Mid

atlantic Risk assessment:

http://www.epa.gov/reg3hwmd/risk/human/rb

- concentration_table/Generic_Tables/index.htm ; and
Health Consultation: Chesapeake ATGAS 2H Well Site Leroy Hill Road, Leroy, Leroy Township, Bradford
County, Pennsylvania, October 29, 2013. U.S. Department of Heal th and Human Services, Agency for
Toxic Substances and Disease Registry Division of Community Health Investigations Atlanta, Georgia.
www.atsdr.cdc.gov55

Unit VI for a complete discussion of the technical requirements of the rule. With regards to groundwater monitoring and corrective action, n ew and existing CCR landfills will be required to comply with the groundwater monitoring regulations.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 31 

### Organization: Tennessee Department of Environment and Conservation (TD EC)


### Commenter : Paul L. Sloan Commenter Type: State Government

Comment Excerpt Text: New CCR surface impoundments should be permitted following the EPA Subtitle D criteria for solid waste landfills. The regulations should include:

- Public Notice of intent to construct.

- Demonstration of suitable geologic conditions for construction.

- An engineering design which includes a geologic buffer, synthetic liner, leachate collection system, groundwater monitoring system with a minimum of four wells, buffer zones,

c onstruction with a dam safety factor of 1.5, estimated disposal capacity of the surface impoundment, seismic analysis and seismic safety factor of 1.5, closure plan, post

- closure monitoring and maintenance plan and financial assurance in an amount sufficie nt to complete environmental investigation and cleanup should the surface impoundment fail or have releases to groundwater and/or surface water.

- The initial plans should indicate whether the surface impoundment will be used for CCR

treatment or for waste treatment and CCR disposal.

Response: 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 complete discussion of the technical requirements of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 52 

### Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company


### Commenter : Chris M. Hobson Commenter Type: Electric Utility Company

Comment Excerpt Text: Southern Company supports appropriate groundwater monitoring standards for CCB surface impoundments and landfills developed under a RCRA Subtitle D framework and largely after the groundwater monitoring programs for MSWLFs under 40 C.F.R. Part 258, and for non

MSWLFs that may receive conditionally exempt small quantity generator (“CESQG”) wastes

under 40 C.F.R. Part 257, Subpart B. [Footnote 165: 75 Fed. Reg. at 35205.] Groundwater monitoring, however, should be tailored to the particular site and constituents of concern. It should be used as a diagnostic tool rather than an ongoing, stand

- alone regulator y requirement.

Given that site

- specific factors are critical for establishing constituents and corresponding concentrations for detection and assessment monitoring, it is important that EPA authorize qualified groundwater scientists to certify variances fr om the otherwise applicable parameters56

used for detecting constituents in groundwater and assessing statistically significant increases from background for these parameters. For an in

- depth analysis of groundwater monitoring, see Parts II.B.4. 5, and 6, in reference to Subtitle D. The groundwater monitoring analysis is equally applicable to the Subtitle C proposal.

Response: Due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are allowed in other EPA programs, such as under the regulatory program for MSWLFs. The Agency does not believe allowing alternate groundwater monitoring programs, such as those allowing only a

subset of constituents be monitored, would be workable in the context of a self

- implementing rule, because there is no regulatory entity to judge the reasonableness of the desired alternatives. The requirements of the groundwater monitoring program in this rule allow as much fl exibility as we believe we can accommodate, given the lack of oversight by a permitting authority, and the need to demonstrate that the rule provisions will achieve section 4004(a)’s statutory standard.

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 of the preamble for a discussion on technical requirements includi ng groundwater monitoring

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 63 

### Organization: Earthjustice et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text: The scope of the proposed rule is limited to a specific type of waste, coal combustion residuals. Groundwater monitoring provisions of the existing Subtitle C and Subtitle D programs were designed to address a vast universe of diverse wastes. Because the properties of coal combustion wastes are less diverse, samples ca n be analyzed in detection monitoring for parameters that are diagnostic of those wastes. Inclusion of diagnostic parameters will make detection monitoring

more effective and easier to administer.

Response: The detection monitoring parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those parameters that are regularly monitored in the field when any ground water moni toring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate whether constituents are leaking from the unit. The assessment monitoring list, which includes a larger number of constituents, is based on what is

e xpected in CCR wastes. To the extent that site conditions warrant a more extensive monitoring program, the performance standards in §§257.91 and 257.93 would in fact require the facility to

install one.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 67 

### Org anization: Earthjustice et. al.


### Commenter : Lisa Evans57

Commenter Type: Advocacy Group

Comment Excerpt Text: The multistage monitoring approach, as implemented under Subtitle C, has not been a success. In my experience as a consultant, it is very much the exception rather than the rule among RCRA

regulated sites with contaminated groundwater for the contamination to have been discovered through the regulatory sequence of detection monitoring and compliance monitoring. A 1991 study of 479 waste sites, most o f them with contaminated groundwater, included 173 RCRA

regulated facilities in its database. The study reported that only 15 to 20 of the sites had ever entered compliance monitoring. [Footnote 4: R.H. Plumb, The occurrence of Appendix IX organic constitu ents in disposal site ground water, Groundwater Monitoring & Remediation, vol. 11, no. 2, pp. 157

- 64 (Spring 1991).] The great majority of contamination problems had been discovered by some other means.

Response: EPA selected contaminants for the detect ion monitoring phase that are present in CCRs and would move rapidly through the subsurface, such as boron and sulfate. By requiring monitoring of these key parameters, including pH, TDS, fluoride and chloride, which are long proven as precursor contamina nts to higher toxicity CCR contaminants, leakage from CCR disposal units will be caught in a timely manner. In other words, these are the contaminants that would be expected to be detected earliest in any monitoring program. Because detection of any

of t hese “early warning” contaminants triggers a switch to assessment monitoring involving a more comprehensive list of contaminants, (including a variety of metals, anions, and radioactivity sources, selected on the merits of constituting primary or secondary MCLs and/or their prevalence in documented damage cases), it is unlikely that “skipping” detection monitoring would provide any quicker detection of leakage from the unit.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 22 

### Organization: Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water Consulting, and submitted by Earthjustice)


### Commenter : Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text: Groundwater Contamination at CCR Disposal Sites Is a Long

- term Problem.

Groundwater contamination at CCR disposal sites can continue for many years without significant natural attenuation, and this characteristic of CCR must be considered when regulating its disposal. A major weakness of the Subtitle D option is that is applies only to active disposal sites and doesn’t address contamination that may be occurring from older disposal sites at the same facility. Subtitle C ensures that the facility operator is responsible for addressing

contamination from inactive units as well.

Response: The Agency agrees that if CCR is left disposed in closed units that are unlined and uncapped, and therefore exposed to groundwater and infiltrating rain (surface water) that groundwater

contamination can continue for many years. However, under this final rule, closed CCR landfills58

must be lined and capped with a final cover, and closed CCR surface impoundments must be dewatered and capped with a final cover. Moreover these units, and those CCR surface impoundments th at are no longer receiving CCR as of the effective date of the rule, but still contain water and CCR will be subject to all applicable regulatory requirements, including post

closure care, unless the owner or operator of the facility dewaters and installs a final cover system on these inactive units no later than three years from the effective date of the rule. These requirements will keep water away from CCR, thus preventing groundwater contamination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 32 

### Organi zation 1 

### : Duke Energy


### Commenter 1 : Mike Stroben Commenter Type: Electric Utility Company

Comment Excerpt Text: As detailed below, it is critical that EPA also allow alternative groundwater monitoring systems. Duke has successfully designed and installed alte rnative groundwater monitoring systems, approved by state solid waste regulatory agencies, to monitor both the performance of closure of the impoundment and the landfill. This is yet another example why it is important for EPA to develop a non

- hazardous wa ste regulatory framework under Subtitle D that can be adopted and implemented by the state environmental agencies. These agencies can provide local oversight and expertise in approving alternative closure plans for surface impoundments and landfills

constr ucted on Brownfield areas.

Response: Due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are allowed in other EPA programs, such as under the regulatory program for MSWLFs. The Agency does not believe allowing alternate groundwater monitoring programs, such as those allowing only a subset of constituents be monitored, would be workable in the context of a self

- implementing rule, becau se there is no regulatory entity to judge the reasonableness of the desired alternatives. The requirements of the groundwater monitoring program in this rule allow as much flexibility as we believe we can accommodate, given the lack of oversight by a perm itting authority, and the need to demonstrate that the rule provisions will achieve section 4004(a)’s statutory standard. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale and approach for promulgating this s ubtitle D rule for the disposal of CCR in landfills and surface impoundments.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06410

- 59


### Commenter : Anonymous Commenter Type: Anonymous

Comment Excerpt Text: Existing groundwater monitoring and corrective action requirements are appropriate and applicable to CCR landfills and surface impoundments. Current state regulations should also be considered along with facility permit requirements already in

- place. Only minor changes may be needed to existing monitoring pro grams.59

Response: The sections of RCRA that are applicable to CCRs

– sections 1008(a), 4004(a), and 4005(a) only authorize the Agency to establish minimum national criteria with which facilities must comply. EPA’s regulation does not preclude a state from incorporating the regulatory provisions being finalized today into state law and implementing and enforcing a single set of requirements. Nor does the regulation require the state to enforce the federal requirements, the decision to bring an action under 7002 lies entirely within the state’s discretion. We are not able to require states to develop programs or approve elements of a federal program. While states may have programs for the regulation of CCRs, which in some cases may be more stringent than to day’s final rule, the federal program must be written as though states do not have a CCR disposal program in place. Because this rule is self

- implementing and there is no regulatory entity available to judge the reasonableness of the desired alternatives, EPA has determined that it is not able to allow alternatives in most cases, and instead is establishing minimum technical criteria for these units. Since the states can be more stringent, they can require additional monitoring wells, additional aquifers b e monitored and additional parameters be added to the detection monitoring list or the assessment monitoring list, for example. If the

s tate has an existing program governing CCR landfills and surface impoundments, the facilities

in those states will need to comply with two sets of potentially differing regulations.

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 impound ments. 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

- 2009

- 0640

- 06416

- 55 

### Organization: Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC)


### Commenter : Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Comment Excerpt Text: The groundwater monitoring/corrective action part of the proposed rule on pp. 3 5204

– 35207 of the preamble is generally consistent with Wisconsin groundwater monitoring requirements and is generally acceptable.

Response: The Agency acknowledges and appreciates the comment

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06838

- 6 

### Organization: Minnesota Pollution Control Agency (MPCA)


### Commenter : Lisa Mojsiej on behalf of Tim Scherkenbach Commenter Type: State Government

Comment Excerpt Text: The regulations in Minnesota have not changed; however, the design standards and requireme nts have evolved over time. New facilities and any expansions must meet design requirements similar to those being proposed in this rule making. It is the practice of the MPCA to require composite liners and groundwater monitoring systems at CCR landfills and surface60

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 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

- 2009

- 0640

- 07395

- 1 7 

### Organization: Texas Coal Combustion Products Coalition (TCCPC)


### Commenter : Michael J. Nasi Commenter Type: Trade Association

Comment Excerpt Text: A Federal Regulatory Program Must Allow for Technical Flexibility

EPA specifically identified at least ele ven components of the existing Subtitle D rules where site specific flexibility provided to MSW Landfill operators will not be allowed under these proposed rules. EPA's sole rationale for denying site

- specific flexibility is that it does not have the power to allow states to run programs similar to those already implemented for MSW sites. As stated above, EPA has such authority under section 4010(e) of RCRA. As stated by EPA in its Rule Proposal:

the part 258 criteria represent a reasonable balance between ensuring the protection of human health and the environment from the risks of these wastes and the practical realities of facilities' ability to implement the criteria [Footnote 43: Coal Ash Rule Proposal 75 Fed. Reg. at 35, J93.].

Of particular importan ce, EPA must recognize alternative liner designs and alternative groundwater monitoring requirements. These are both allowed under the MSW criteria. 40 CFR § 258.40 authorizes states to consider alternative liner designs, by factoring in hydrogeologic

char acteristics of the facility and surrounding land, the climatic factors of the area, and the volume and physical and chemical characteristics of the leachate [Footnote 44: 40 C.F.R. § 258.40(c).]. EPA also allows groundwater monitoring to be suspended if th e owner or operator can demonstrate that there is no potential for migration of hazardous constituents from that MSWLF unit to the uppermost aquifer [Footnote 45: [d. at § 258.50(b)].

The TCCPC further joins USWAG in its identification of and comments re lated to key issues associated with the proposed Subtitle D option, including comments related to closure time frames, application of location restrictions to existing CCR surface impoundments, the overbroad definition of "CCR Landfill," and the inclusion of inappropriate constituents in the groundwater monitoring program

Response: The sections of RCRA that are applicable to CCRs

– sections 1008(a), 4004(a), and 4005(a) only authorize the Agency to establish minimum national criteria with which facilities must comply. EPA’s regulation does not preclude a state from incorporating the regulatory provisions being finalized today into state law and implementing and enforcing a single set of61

requirements. Nor does the regulation require the state to enforce the federal requirements, the decision to bring an action under 7002 lies entirely within the state’s discretion. We are not able to require states to develop programs or approve elements of a federal program. While states may have programs for the regulation of CCR, which in some cases may be more stringent than today’s final rule, th e federal program must be written as though states do not have a CCR disposal program in place. Because this rule is self

- implementing and there is no regulatory entity available to judge the reasonableness of the desired alternatives, EPA has

determined that it is not able to allow alternatives in most cases, and instead is establishing

minimum technical criteria for these units.

The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subti tle 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

- 2009

- 0640

- 07533

- 38 

### Organization: Nebraska Department of Environmental Quality (NDEQ)


### Commenter : David B. Haldeman Commenter Type: State Government

Comment Excerpt Text: NDEQ’s permit program has adopted the same regulatory requirements for ground water monitoring systems as are required for municipal solid waste landfills under 40CFR Part 258. Accordingly, NDEQ believes this is a reasonable and protective approach in states that have permit programs that adopt these same requirements. I f a state that adopts the same requirements in its permit as found in 40CFR Part 258 for groundwater monitoring then NDEQ believes that there is no need to make the modifications proposed in the rule (from the 40CFR Part 258 approach). A state permit progr am provides an additional level of oversight to the use of licensed professionals and citizen lawsuit provisions.

Response: The sections of RCRA that are applicable to CCRs

– sections 1008(a), 4004(a), and 4005(a) only authorize the Agency to establish minimum national criteria with which facilities must comply. EPA’s regulation does not preclude a state from incorporating the regulatory provisions being finalized today into state law and implementing and enforcing a single set of requirements. Nor does the regulation require the state to enforce the federal requirements, the decision to bring an action under 7002 lies entirely within the state’s discretion. We are not able to require states to develop programs or approve elements of a federal program. While states may have programs for the regulation of CCR, which in some cases may be more stringent than today’s final rule, th e federal program must be written as though states do not have a CCR disposal program in place. Because this rule is self

- implementing and there is no regulatory entity available to judge the reasonableness of the desired alternatives, EPA has

determined that it is not able to allow alternatives in most cases, and instead is establishing

minimum technical criteria for these units.

The commenter is 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.62



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08247

- 6 

### Organization: Tucson Electric Power Company


### Commenter : Erik Bakken Commenter Type: Electric Utility Company

Comment Excerpt Text: TEP is in support of groundwater monitoring standards for CCR landfills that allows professionals at the state level (professional engineers or hydrologist) to delete any constituents from groundwater monitoring. Of course, the professionals would have to show that the removed

constituent s are not reasonably expected to be derived from the waste contained in the landfill. TEP urges EPA to limit groundwater monitoring to the primary drinking water constituents for which a maximum contamination level has been established. In addition groundw ater monitoring should be further limited to only constituents which can reasonably be expected to be derived from the waste to be placed in the landfill.

Response: The sections of RCRA that are applicable to CCRs

– sections 1008(a), 4004(a), and 4005(a) only authorize the Agency to establish minimum national criteria with which facilities must comply. EPA’s regulation does not preclude a state from incorporating the regulatory provisions being finalized today into state law and implementing and enforcing a single set of requirements. Nor does the regulation require the state to enforce the federal requirements, the decision to bring an action under 7002 lies entirely within the state’s discretion.

We are not able to require states to develop programs or approve elements of a federal program. While states may have programs for the regulation of CCRs, which in some cases may be more stringent than today’s final rule, the federal program must be written as though states do not have a CCR disposal program in place. Because this rule is self

- implementing and there is no regulatory entity available to judge the reasonableness of the desired alternatives, EPA has determined that it is not able to allow alternatives in most cases, and instead is establishing

m inimum technical criteria for these units

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 39 

### Organization: Arizona Department of Environmental Quality (ADEQ)


### Commenter : Benjamin H. Grumbles Commenter Type: State Government

Comment Excerpt Text: Pg. 35251, Section 257.98: The proposed rule will impose corrective action requirements that may not be compatible with elements of Arizona’s corrective action requirements. A.A.C. R18

- 9

- A204 requires that all individual Aquifer Protection Permits have a contingency plan for

corrective action. A.A.C. R18

- 9

- A204(B)(8) describes potential corrective actions that may be required by the ADEQ Director on a facility

- specific basis. At the discretion of the ADEQ Director, these corrective actions could include source contro l and soil, surface water, and groundwater cleanup. Because current state statute and rule have flexible and facility

- specific cleanup provisions rather than prescriptive cleanups, potential cleanup issues are already63

addressed by state law. ADEQ also has authority under A.R.S. § 49

- 287(E)(3) to compel corrective actions under Arizona’s State Superfund (WQARF) in circumstances requiring significant and extensive cleanups resulting from the release of hazardous substances. The WQARF statutes have a very diff erent liability scheme and a different approach to remedy selection than either RCRA or CERCLA corrective action requirements. Thus the requirement under 257.98 (d)(2) indicating that all remedies must comply with (all) applicable RCRA requirement may crea te conflicts for the state. In practice, the Aquifer Protection Permit program has permitted these kinds of facilities since 1986. Because extensive groundwater and operational monitoring permit requirements have been effective, no significant releases req uiring WQARF

- ordered cleanups have occurred.

Response: The sections of RCRA that are applicable to CCRs

– sections 1008(a), 4004(a), and 4005(a) only authorize the Agency to establish minimum national criteria with which facilities must comply. EPA’s regulation does not preclude a state from incorporating the regulatory provisions being finalized today into state law and implementing and enforcing a single set of requirements. Nor does the regulation require the state to enforce the federal requirement s, the decision to bring an action under 7002 lies entirely within the state’s discretion.

We are not able to require states to develop programs or approve elements of a federal program. While states may have programs for the regulation of CCRs, which i n some cases may be more stringent than today’s final rule, the federal program must be written as though states do not have a CCR disposal program in place. Because this rule is self

- implementing and there is no regulatory entity available to judge the r easonableness of the desired alternatives, EPA has determined that it is not able to allow alternatives in most cases, and instead is establishing

minimum technical criteria for these units

.

The commenter is 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

- 2009

- 0640

- 09728

- 19 

### Organization: Intermountain Power Servi ce Corporation (IPSC)


### Commenter : Jon A. Finlinson Commenter Type: Electric Utility Company

Comment Excerpt Text: The EPA is overly limiting regarding groundwater contamination standards under the rule. It does not recognize the natural variability of ground waters from region to region. In the West, as where IPP is located, the upper unconfined aquifer can remain relatively stable for boron concentrations, but wildy variable as to arsenic concentrations. In fact, arsenic can vary naturally many times t he MCl standard.

Response : I n order to demonstrate randomness in sampling the background data can’t show trends (due to temporal or spatial variability), nor be autocorrelated. This means owners and operators must be alert to sources of variability not necessarily related to waste management practices. If arsenic is wildly variable due to a source that is independent of waste management, that variability would show up in background concentrations, and would have to be considered in64

their sampling plan. For more information on how to handle this type of situation, the

commenter is referred to EPA’s Unified Guidance. (“Unified Guidance Document: Statistical Analysis of Groundwater Monitoring Data at RCRA Facilities”, March 2009, EPA 530/R

- 09

- 007).



### Com ment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10017

- 13 

### Organization: Salt River Project (SRP)


### Commenter : Daniel J. Casiraro

Comment Excerpt Text: In terms of groundwater monitoring, SRP supports standards for both CCR surface impoundments and CCR landfills under a Subtitle D program. The groundwater monitoring requirements would be similar to the MSWLFs under 40 CFR part 258.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10017

- 15 

### Organization: Salt River Project (SRP)


### Commenter : Daniel J. Casiraro Commenter Type: Electric Utility Company

Comment Excerpt Text: The SRP Navajo Generating Station located on the Navajo Nation land operates a CCR landfill for all of its CCRs destined for disposal (i.e., dry fly ash, dry bottom ash, and de

- watered FGD material). The CCR landfill is located in a dry climate with average annual rainfall of less than 8 inches and the depth to groundwater in the Navajo Sandstone Formation 800

- 900 feet below the

bottom of the surface of the landfill. SRP believes that Subtitle D prime management would provide adequate protection to groundwater and that monitoring for this unit should be tailored to the relative risk and site specific characteristics in terms of frequency and the actual parameters
monitored.

Response: Regarding the frequency of monitoring, EPA has decided to include a provision that would allow an alternative sampling frequency if there is not adequate groundwater to flow to sample wells semi

- annually. An owner or op erator seeking to establish an alternative frequency must demonstrate that less frequent monitoring is necessary based on the following three factors: (1) lithology of the aquifer and the unsaturated zone; (2) hydraulic conductivity of the aquifer

and the unsaturated zone; and (3) groundwater flow rates.

Regarding the actual parameters monitored, EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions.
However, as noted previously, due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulator y program for MSWLFs. EPA is only authorized to establish minimum national standards under sections 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the stand ard in RCRA 4004(a)

– that65

there be “no reasonable probability of adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that ar e more sensitive and those that are less sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the

mini mum” necessary to protect human health and the environment across the country. EPA accomplished this through a combination of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. For example, the detection monitoring parameters are limited in number and are designed to be protective and adequate to determine if constit uents are leaking from CCRs and out of the unit. The detection monitoring parameters are those parameters that are regularly monitored in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron)

that are found i n CCRs and will indicate whether constituents are leaking from the unit. The assessment monitoring list, which includes a larger number of constituents, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a mor e extensive monitoring program, the performance standards in §§257.91 and 257.93 would in fact require the facility to install one.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10538

- 13


### Commenter : Raymond von Drehle Commenter Type: Private Citizen

Comment Excerpt Text: A further major flaw of the proposed option for regulating CCR as a non

- hazardous waste under subtitle D is that it would create a loophole that allows utilities to avoid monitoring and properly closing old ash disposal sites. Under the subt itle C option, utilities would have to monitor all the ash dumps, active and inactive, on their property to determine whether these dumps are leaking. Under the Subtitle D option, utilities would not be required to look at old dumps

- this leaves a huge loop hole for old landfills and waste ponds. These old unmonitored units are the most

- likely units to be leaking.

Response: The final rule applies to “inactive” CCR surface impoundments at any active electric utilities or independent power producers, regardless of the fuel currently being used to produce electricity; i.e., surface impoundments at any active electric utility o r independent power producer that have ceased receiving CCR or otherwise actively managing CCR.

Section 4.4.7.2

- EPA solicits comment on appropriateness of tailoring proposed GW monitoring and corrective action requirements for CCR disposal with thir d

- party PE or hydrologist certifications in lieu of a state approval mechanisms (35205)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06308

- 13 

### Organization: NRG Energy Inc.66



### Commenter : Verne Shortell Commenter Type: Electric Utility Company

Comment Excerpt Text: EPA Should Allow For Alternative Groundwater Monitoring Parameters

NRG supports appropriate groundwater monitoring standards for CCR waste management units and development of such standards under a RCRA Subtitle D framework. NRG believes the

propos ed rule could be improved by allowing alternate indicator parameters.

From a technical perspective, site

- specific factors should be used for establishing constituents and corresponding concentrations for detection and assessment monitoring. In addition, it is important that EPA authorize registered professionals to certify variances from the otherwise applicable parameters used for detecting constituents in groundwater and assessing statistically significant increases from background for these parameters. Given the range of natural variations in site geology and groundwater at CCR disposal units across the country, it will often be necessary for technical experts to adjust the specific groundwater monitoring standards to

account for various site

- specific c onditions and factors. Any variances to the list of regulatory parameters would only be available if approved by a qualified state program or if certified by a registered professional and such certifications are recorded in a facility’s operating record, f iled with the state and posted on the facility’s publicly available internet site. There is simply no reason not to authorize these professionals to identify and certify, where appropriate, necessary adjustments to the groundwater monitoring parameters bas ed on site

- specific factors. Therefore, NRG recommends that EPA include language in the Subtitle D groundwater monitoring rules for CCR disposal units similar to that in the MSWLF’s rules allowing for the state or a registered professional (in the context of a self

- implementing Subtitle D rule) to delete any constituents from otherwise required groundwater monitoring “if it can be shown that the removed constituents are not reasonably expected to be in or derived from the waste contained in the

unit.” Simil arly, the state or a registered professional should be authorized to establish an alternative list of indicator parameters in lieu of some or all of the otherwise specified indicator parameters “if the alternative parameters provide a reliable indication o f inorganic releases from the CCR unit to the groundwater.” Id. at 258.54(a)(2).

Response: EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions. However, due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only authorized to establish minimum national standards under sections 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that t here be “no reasonable probability of adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are more sensitive

and those t hat are less sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect hu man health and67

the environment across the country. EPA accomplished this through a combination of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of speci fic technical parameters to ensure that the performance standard will in fact be met. For example, the detection monitoring parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those parameters that are regularly monitored in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate

whe ther constituents are leaking from the unit. The assessment monitoring list, which includes a larger number of constituents, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a more extensive monitoring progr am, the performance standards in §§257.91 and 257.93 would in fact require the facility to install one.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06410

- 60


### Commenter : Anonymous Commenter Type: Anonymous

Comment Excerpt Text: Alternative groundwater monitoring programs should be allowed. Site

- specific conditions or temporary conditions have the potential to impede the facility’s ability to be in compliance. Allowing for alternative groundwater monitoring programs could be more appropriate and be just as effective in monitoring the facility for compliance. This would need to be assessed on a

case

- by

- case basis. An independent professional engineer familiar with a standard groundwater monitoring program and conditions specific to the facility could be effective in these cases.

Response: Due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are allowed in other EPA p rograms, such as under the regulatory program for MSWLFs. The Agency does not believe allowing alternate groundwater monitoring programs would be workable in the context

of a self

- implementing rule, because there is no regulatory entity to judge the reaso nableness of the desired alternatives. The requirements of the groundwater monitoring program in this rule allow as much flexibility as we believe we can accommodate, given the lack of oversight by a permitting authority, and the need to demonstrate that the rule provisions will achieve section 4004(a)’s statutory standard.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 56 

### Organization: Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC)


### Commenter : Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government

Comment Excerpt Text: We disagree with the proposal to not include the flexibility for States to establish alternative lists of indicator parameters for those States that have effe ctive regulatory oversight of CCR landfills. Wisconsin, as did and other States provided justification for its regulatory program for groundwater monitoring in its application for authorization for the RCRA Sub D part 258 MSW68

landfill program. This justifi cation should be sufficient for EPA’s proposed CCR rules as well.

The proposed lack of flexibility to acknowledge the effectiveness of State programs and State agency review functions is another example of why Wisconsin objects to the proposed self

imple menting alternative. We have already gone through a process for justifying our requirements for groundwater monitoring as part of our application for authorization for the RCRA Sub D part 258 MSW landfill program and see no reason why this should not be ad equate for regulating the groundwater monitoring requirements for CCR landfills.

Response: Due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilitie s that are allowed in other EPA programs, such as under the regulatory program for MSWLFs. The Agency does not believe allowing alternate groundwater monitoring programs would be workable in the context

of a self

- implementing rule, because there is no reg ulatory entity to judge the reasonableness of the desired alternatives. The requirements of the groundwater monitoring program in this rule allow as much flexibility as we believe we can accommodate, given the lack of oversight by a permitting authority, and the need to demonstrate that the rule provisions will achieve section 4004(a)’s statutory standard. The state can, however, add additional parameters to the monitoring lists as they can be more stringent than the federal rules.

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

- 2009

- 0640

- 06416

- 57 

### Organization: Wisconsin Department of Natural Resources (W I DNR) and Public Service Commission of Wisconsin (WI PSC)


### Commenter : Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Comment Excerpt Text: Regarding the request on p. 35205 of the preamble on certification of groundwater monitoring data, we support a requirement for the landfill owner or a designated responsible employee to certify that the data are accurate and the use of testing laboratorie s that meet lab certification requirements. Our experience is that the landfill owner may contract with a firm that performs sampling, but can also perform sampling using its own employees. The entity performing the analysis of water samples may be a contr act lab that has no connection to the sampling work. The owner is in a position to verify that all parties were competent and performed their tasks correctly. A contract engineer or hydrologist or hydrogeologist may not be sufficiently involved

with the de tails of both field work for sampling and the laboratory QA/CC and analyses.

Response: While the Agency understands the concerns raised by the commenter, it is important to note that the requirements being promulgated in this rule allow for a significant amount of transparency, one aspect of which is a requirement to provide groundwater moni toring data on the owner or operator’s publicly accessible internet site. EPA considers the qualified professional engineer to be knowledgeable about the QA/QC protocols by which laboratories operate and the Agency expects that these qualified professiona l engineer will ensure that all appropriate chain of command protocols as well any QA/QC protocols are acknowledged and69

adhered to. The placement of this data/information on the owner or operator’s internet site will allow the date to be scrutinized by the public ensuring to some degree that the proper analytical procedures have been maintained. It is the responsibility of both the owner or operator and the professional engineer to ensure that the analytical data resulting from groundwater sampling and

ana lysis maintain the highest degree of QA/QC control. The Agency believes that the requirements being promulgated in this rule will be at the forefront of any responsible and qualified professional engineer undertaking these tasks.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 59 

### Organization: Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC)


### Commenter : Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government



### Comment Excerpt Text: As commented on other aspects of monitoring on p. 35206 of the preamble, in the section requiring a minimum of one upgradient and 3 downgradient wells, for States that have effective groundwater monitoring rules and a history of collecting and archiv ing data, we object to a requirement that only an independent PE or hydrologist to can decide if a more detailed monitoring system is needed. In all instances in Wisconsin for engineered landfills, whether for CCRs or other wastes, considerably more ground water instrumentation is needed than the minimums in the proposed rule, and direct involvement in the review of proposed monitoring programs by State agency staff is essential. Given the costs of installing and monitoring groundwater monitoring networks, w e believe that State agency input is needed to assure an adequate monitoring system is installed around a CCR landfill.

Response: The states can always specify more stringent monitoring requirements under the federal rule. These federal regulations repr esent minimum requirements. Specifically regarding the example of the number of monitoring wells, the rule requires the owner or operator to install a minimum of one upgradient and three downgradient wells, and any additional monitoring wells

necessary to achieve the general performance standard of accurately representing the quality of the background groundwater and the groundwater passing the waste boundary of the CCR unit. The number, spacing, and depths of the monitoring wells must be determined based on a thorough characterization of the site, including a number of specifically identified factors relating to the hydrogeology of the site (e.g., aquifer thickness, groundwater flow rates and direction). Further, any owner or operator who determines that the specified minimum number of wells is adequate must provide a factual justification for that decision. Factors that may substantiate a reduced density of groundwater monitoring wells includes simple geology (i.e., horizontal, thick, homogenous strata that are continuous across site, with no fractures, faults, folds, or solution channels), a flat and constant hydraulic gradient, uniform hydraulic conductivity, low seepage velocity, and high dispersivity potential.

In essence, the rule establishes a pr esumption that the minimum of one upgradient and three downgradient wells is not sufficient, and requires the owner or operator to rebut that presumption in order to install only this minimum. This is fundamentally consistent with the proposed rule,70

which required the installation of a system that would achieve the general performance standard, as well as the “minimum” of one upgradient and three downgradient wells. The final regulation merely makes more explicit that both of these requirements must be met

.

EPA considered establishing a more prescriptive set of requirements, including a specified number, location, and design of monitoring wells, but because of the highly site specific nature of developing an adequate groundwater monitoring system, determined that it lacked sufficient information to be able to design a single groundwater monitoring system that would be nationally protective at all sites. A properly designed system must account for too many variables, most of which are highly dependent on the i ndividual characteristics of the unit and the facility site. Consequently, the final rule leaves the exact system design to be determined by those at the site, including a professional engineer, who can tailor the design of the system to the

unit and site conditions.

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

- 2009

- 0640

- 06416

- 61 

### Organization: Wiscon sin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC)


### Commenter : Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government

Comment Excerpt Text: Regarding the request on pp. 35206

- 35207 under assessment monitoring, we object to the lack of authority for State agencies to approve an alternative list of indicator parameters, for States that have effective groundwater monitoring authority and rules and that have a demonstrable history of collecting and archiving groundwater monitoring data. We object to a requirement that only an independent PE or hydrologist to can decide if an alternative list of detection parameters is acceptable.

Response: Due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are allowed in other EPA programs, such as under the regulatory program for MSWLFs. The A gency does not believe allowing alternate groundwater monitoring programs would be workable in the context

of a self

- implementing rule, because there is no regulatory entity to judge the reasonableness of the desired alternatives. The requirements of the groundwater monitoring program in this rule allow as much flexibility as we believe we can accommodate, given the lack of oversight by a permitting authority, and the need to demonstrate that the rule provisions will achieve section 4004(a)’s statutory sta ndard. An independent PE cannot decide if an alternative list of detection parameters is acceptable. The state can always be more stringent and require additional parameters be monitored.

The commenter is also referred to Unit IX of the preamble for a dis cussion on how EPA expects states to incorporate the CCR rules into state solid waste management plans

.71



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06815

- 28 

### Organization: Michigan Department of Natural Resources and Environment (DNRE)


### Commenter : Liane J. Shekter Smith Commenter Type: State Government



### Comment Excerpt Text: EPA broadly solicits comment on the approach of relying on certifications by independent registered professional hydrologists or engineers of the adequacy of actions taken at coal

- fired utilities to design and operate safe waste management systems.

Michigan currently has regulations that require state review and approval of design plans and construction certifications of solid waste disposal facilities. These requirements include a

cert ification by registered professional engineers. Our rules would remain in place and require an additional and potentially conflicting requirement with the proposed Subtitle D rule. Michigan would prefer that any rule adopted retain the state's oversight ro le for CCR facilities, rather than relying on self

- certification by registered professionals.

Response: Due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are allowed in other EPA programs, such as under the regulatory program for MSWLFs. The Agency does not believe allowing alternate groundwater monitoring programs would be workable in the context

of a self

- implementing rule, because the re is no regulatory entity to judge the reasonableness of the desired alternatives. The requirements of the groundwater monitoring program in this rule allow as much flexibility as we believe we can accommodate, given the lack of oversight by a permitting authority, and the need to demonstrate that the rule provisions will achieve section 4004(a)’s statutory standard.

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 st ate solid waste management plans

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06956

- 9 

### Organization: Tri

- State Generation & Transmission


### Commenter : Barbara A. Walz Commenter Type: Electric Utility Company

Comment Excerpt Text:

EPA Should Allow For Alternative Groundwater Monitoring Parameters And Should Revise The Proposed Parameters

Tri

- State G&T believes that appropriate groundwater monitoring standards for CCR surface impoundments and landfills should be defined in state issued permits and we believe that th e development of such standards should be conducted under a RCRA Subtitle D framework, modeled after the groundwater monitoring programs for MSLWFs under 40 C.F.R. Part 258, and

for non

- MWSLFs that may receive CESQG wastes under 40 C.F.R. Part 257, subpart B. Unfortunately, unlike the groundwater monitoring programs for these units under Parts 258 and 257, the Agency is not proposing to allow an alternate list of indicator parameters to be used in72

the proposed CCR groundwater monitoring program because of t he lack of direct state oversight and EPA’s information on CCRs indicates that their composition would not be expected to vary such that the parameters are inappropriate. Tri

- State G&T believes this is a mistake. First, from a technical perspective, given that site

- specific factors are critical for establishing constituents and corresponding concentrations for detection and assessment monitoring, it is important that EPA authorize registered professional engineers or hydrologists to certify

variances from t he otherwise applicable parameters used for detecting constituents in groundwater and assessing statistically significant increases from background for these parameters. Given the extreme range of natural variations in site geology and groundwater at

CCR d isposal units across the country, it will often be necessary for technical experts to adjust the specific groundwater monitoring standards that EPA establishes to account for various site

specific conditions and factors. Further, any variances to the list of regulatory parameters would only be available if approved by a qualified state program (under, for example, a state regulatory regime approved by EPA under RCRA section 4005(c)) or if certified by a registered professional engineer or hydrologist and su ch certifications are recorded in a facility’s operating record, filed with the state and posted on the facility’s publicly available internet site. As other critical elements of the Subtitle D program are predicated on compliance certifications by these

t echnical professionals, there is no reason not to authorize these professionals to identify and certify, where appropriate, necessary adjustments to the groundwater monitoring parameters

based on site

- specific factors.

Therefore, Tri

- State G&T recommends that EPA include language in the Subtitle D groundwater monitoring rules for CCR disposal units similar to that in the MSWLFs rules allowing for the state or a professional engineer or hydrologist (in the context of a self

- implementing Subtitle D rule) to delete any constituents from otherwise required groundwater monitoring if it can be shown that the removed constituents are not reasonably expected to be in or derived from the waste contained in the unit. Similarly, the state or a professional engineer or hydrologist should be authorized to establish an alternative list of indicator parameters in lieu of some or all of the otherwise specified indicator parameters if the alternative parameters provide a reliable indication of inorganic releases from the [CC R] unit to the groundwater

.

Response: EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions. However, due to the fact that EPA cannot require states to develop a per mitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only authorized to establish minimum

national standa rds under sections 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are more sensitive and those that are less sensitive. While it is theoretically po ssible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human health and the environment across the country. E PA accomplished this through a combination of performance standards, which inherently provide flexibility in that it does not specify a single73

method to achieve the standard, along with a series of specific technical parameters to ensure that the performan ce standard will in fact be met. For example, the detection monitoring parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parame ters are those parameters that are regularly monitored in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate whether constituents are leaking from the unit. The ass essment monitoring list, which includes a larger number of constituents, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a more extensive monitoring program, the performance standards in §§257.91 and 257.93 would in fact require the facility to install one.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 21 

### Organization: Maryland Department of the Environment (MDE)


### Commenter : Shari T. Wilson Commenter Type: State Government



### Comment Excerpt Text: Throughout the sections of the proposed regulation governing groundwater monitoring and remediation, 40 CFR 257.90 to .98, heavy reliance on third

- party contractors to make important determinations is noted. While a similar approach was taken in 40 CFR 258, it was done with the knowledge that most if not all States would avail themselves of the opportunity to seek EPA program approval to allow them to provide oversight, which is an intrinsic part of the 40 CFR 258 regulations, and which in fact occurred. Although the De partment believes that most if not all engineers and geologists are reputable and reliable, it is noted that this certainly has the potential for abuse, and does not allow for the involvement of experienced State geologists short of federal litigation. The rule as proposed does not include this important safeguard. While the use of consultants to prepare plans, demonstrations and certifications is necessary and desirable, sole reliance on the judgment of one party is not. The approach taken in 40 CFR 258, w hich provides for the state to act in an oversight role, is considerably safer than complete reliance on contractors paid by the operator. It is noted that in the Preamble, EPA itself acknowledges this as

a concern.

Response: As explained in Unit IV.A of the preamble to the final rule, EPA is issuing national minimum criteria under subtitle D to put in place the technical requirements the Agency has determined are necessary to protect human health and the environment from the disposal of CCR

in surface im poundments and landfills, while the Agency completes its Bevill Determination. EPA is relying on the certification of a qualified professional engineer in this context to partially compensate for one of the more significant limitations under the authoritie s currently applicable to CCR: the lack of any guaranteed regulatory oversight mechanism.

The commenter is 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

- 2009

- 0640

- 08218

- 26 

### Organization: Maryland Department of the Environment (MD E)74



### Commenter : Shari T. Wilson Commenter Type: State Government

Comment Excerpt Text: Also, EPA’s choice not to allow the States to evaluate and approve enhancements to important elements such as the liner design and groundwater monitoring system, as is th e case under the 40 CFR 258 regulations, makes this a risky proposal. The inability of the States to specify more stringent monitoring requirements under the federal rule, such as more monitoring wells than just one upgradient and three down, has two negat ive effects: First, it weakens state enforcement under its own rules because it provides the defense that “the federal rule doesn’t require more than 4 monitoring wells, so why is the State doing so?” and secondly, requires states to have duplicative rules to provide them with that authority, making it difficult for operators, who won’t have just one set of applicable rules to follow. We understand that EPA does not wish to allow states to reduce monitoring parameters. However, we believe that EPA could cha nge the rule to allow groundwater monitoring plans approved by the States as long as they are at least as stringent as required under the proposed rule.

Response: EPA is only authorized to establish minimum national standards under sections 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are more sensitive and those that are less sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to pr otect human health and the environment across the country. EPA accomplished this through a combination of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. However, to the extent that site conditions warrant a more extensive monitoring program, the performance standards in §§257.91 and 257.93 would in fact require the facility to install one. The states can always be more stringent than the federal rules.

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 managem ent plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 33 

### Organization: Maryland Department of the Environment (MDE)


### Commenter : Shari T. Wilson Commenter Type: State Government

Comment Excerpt Text: Proposed Regulation 40 CFR 257.9 : It is recommended that in addition to approval of a groundwater monitoring system by a third party geologist or engineer, a provision be included for approval of a monitoring plan by a State regulatory authority. In those states where facilities75

would be subject to both State and federal regulation, such a provision would allow a facility to attain satisfaction of the federal rule by obtaining local approval.

The Department is concerned that the inability of the States to specify more stringent monitori ng requirements under the federal rule, such as more monitoring wells than just one upgradient and three downgradient wells, has two negative effects: First, it weakens state enforcement under its own rules because it provides the defense that “the federal rule doesn’t require more than 4 monitoring wells, so why is the State doing so?” and secondly, it incentivizes states to have State rules to provide them with that authority, making it difficult for operators, who won’t have just one set of applicable ru les to follow. We understand that EPA does not wish to allow states to reduce monitoring parameters. However, we believe that EPA could change the rule to allow groundwater monitoring plans approved by the States as long as they are at least as stringent a s required under the proposed rule.

Response : The states can always specify more stringent monitoring requirements under the

federal rule. These federal regulations represent minimum requirements. Specifically regarding the example of the number of mo nitoring wells, the rule requires the owner or operator to install a minimum of one upgradient and three downgradient wells, and any additional monitoring wells necessary to achieve the general performance standard of accurately representing the quality of the background groundwater and the groundwater passing the waste boundary of the CCR unit. The number, spacing, and depths of the monitoring wells must be determined based on a thorough characterization of the site, including a number of specifically ide ntified factors relating to the hydrogeology of the site (e.g., aquifer thickness, groundwater flow rates and direction). Further, any owner or operator who determines that the specified minimum number of wells is adequate must provide a factual justifica tion for that decision. Factors that may substantiate a reduced density of groundwater monitoring wells includes simple geology (i.e., horizontal, thick, homogenous strata that are continuous across site, with no fractures, faults, folds, or solution chan nels), a flat and constant hydraulic gradient, uniform hydraulic conductivity, low seepage velocity, and high dispersivity potential.

In essence, the rule establishes a presumption that the minimum of one upgradient and three downgradient wells is not su fficient, and requires the owner or operator to rebut that presumption in order to install only this minimum. This is fundamentally consistent with the proposed rule, which required the installation of a system that would achieve the general performance st andard, as well as the “minimum” of one upgradient and three downgradient wells. The final regulation merely makes more explicit that both of these requirements must be met.

EPA considered establishing a more prescriptive set of requirements, including a specified number, location, and design of monitoring wells, but because of the highly site specific nature of developing an adequate groundwater monitoring system, determined that it lacked sufficient information to be able to design a single groundwate r monitoring system that would be nationally protective at all sites. A properly designed system must account for too many variables, most of which are highly dependent on the individual characteristics of the unit and the facility site. Consequently, th e final rule leaves the exact system design to be determined by those at the site, including a professional engineer, who can tailor the design of the system to the

unit and site conditions.76



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 32 

### Organization: Ohio Environmental Protection Agency


### Commenter : Chris Korleski Commenter Type: State Government

Comment Excerpt Text: Ohio supports the approach of relying on certifications by appropriate professionals. Many of Ohio EPA’s regulations require such certifi cation as part of permit applications, submittal of various documents, and monitoring reports. This type of requirement ensures that the owner has relied on persons with the appropriate credentials.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08853

- 13 

### Organization: Lower Colorado River Authority (LCRA)


### Commenter : Henry Eby Commenter Type: Electric Utility Facility

Comment Excerpt Text: Furthermore, EPA should establish procedures under both Subtitle C and D to allow for the use of existing groundwater monitoring systems that are equally

- protective and functionally equivalent to the proposed regulations At FPP, LCRA has conducted groundwater monitoring for over 20 years for our surface impound ments and landfills. The CCR landfill, Ash Surface Impoundment, and Reclaim Pond are sampled quarterly for a list of site

- specific parameters. These parameters were developed through the testing of a larger suite of parameters from which

site

- specific para meters were developed with the oversight and approval of the TCEQ. It does not seem productive or meaningful for LCRA to "start over" under a new detection monitoring program if the current system is equivalent. Therefore, LCRA believes that EPA should all ow for the continued use of alternative groundwater monitoring systems, indicator parameters, and schedules for units for which groundwater monitoring is being conducted under a state

- approved plan. Under Subtitle C, these alternative systems could be addr essed in the site permit. For Subtitle D, LCRA believes it is appropriate to rely on the certification of the alternative system by an independent professional hydrogeologist.

Response: Due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are allowed in other EPA programs, such as under the regulatory program for MSWLFs. T he Agency does not believe allowing alternate groundwater monitoring programs would be workable in the context

of a self

- implementing rule, because there is no regulatory entity to judge the reasonableness of the desired alternatives. The requirements of the groundwater monitoring program in this rule allow as much flexibility as we believe we can accommodate, given the lack of oversight by a permitting authority, and the need to demonstrate that the rule provisions will achieve section 4004(a)’s statutory standard.77

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

- 2009

- 0640

- 09885

- 25 

### Organization: Progress Energy, Inc.


### Commenter : Caroline Choi Commenter Type: Electric Utility Company

Comment Excerpt Text: Progress Energy supports appropriate groundwater monitoring standards for CCR surface impoundments and landfills and the development of such stan dards under a RCRA Subtitle D framework, which is modeled largely after the groundwater monitoring programs for MSLWFs

under 40 C.F.R. Part 258 and for non

- MWSLFs that may receive Conditionally Exempt Small Quantity Generator wastes under 40 C.F.R. Part 25 7, Subpart B. Unfortunately, unlike the groundwater monitoring programs for these units under Parts 258 and 257, the agency is not proposing to allow an alternate list of indicator parameters to be used in the proposed CCR groundwater monitoring program be cause of the lack of direct state oversight and “EPA’s information on CCRs indicates that their composition would not be expected to vary such that the parameters are inappropriate.” The Company believes this is a mistake.

From a technical perspective, gi ven that site

- specific factors are critical for establishing constituents and corresponding concentrations for detection and assessment monitoring, it is important that EPA authorize registered professionals to certify variances from the otherwise applicab le parameters used for detecting constituents in groundwater and assessing statistically significant increases from background for these parameters. Given the extreme range of natural variations in site geology and groundwater at CCR disposal units across the country, it will often be necessary for technical experts to adjust the specific groundwater monitoring standards that

EPA establishes to account for various site

- specific conditions and factors. Further, any variances to the list of regulatory paramet ers would only be available if approved by a qualified state program (under, for example, a state regulatory regime approved by EPA under RCRA Section 4005(c)) or if certified by a registered professional and such certifications are recorded in a facility’ s operating record, filed with the state and posted on the facility’s publicly available internet site. As other critical elements of the Subtitle D program are predicated on compliance certifications by these technical professionals, there is no reason no t to authorize these professionals to identify and certify, where appropriate, necessary adjustments to the groundwater monitoring parameters based on site

- specific factors.

Therefore, Progress Energy recommends that EPA include language in the Subtitle D groundwater monitoring rules for CCR disposal units similar to that in the MSWLFs rules allowing for the state or a registered professional (in the context of a self

- implementing Subtitle D rule) to delete any constituents from otherwise required groundwa ter monitoring “if it can be shown that the removed constituents are not reasonably expected to be in or derived from the waste contained in the unit.” Similarly, the state or a registered professional should be authorized

to establish an alternative list of indicator parameters in lieu of some or all of the otherwise specified indicator parameters “if the alternative parameters provide a reliable indication of inorganic releases from the [CCR] unit to the groundwater.”78

Response: EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions. However, due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow

man y of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only authorized to establish minimum national standards under sections 1008(a)(3) and 4004(a). Accordingly, EPA desi gned the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of adverse effects on

health or the environment” nationwide. This means that EPA m ust design the program to account for the range of conditions at sites across the country

– both those that are more sensitive and those that are less sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (wh ich is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human health and the environment across the country. EPA accomplished this through a combination of performance standar ds, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. For example, the detection moni toring parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those parameters that are regularly monitored in the fie ld when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate whether constituents are leaking from the unit. The assessment monitoring list, which includes a larger number of consti tuents, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a more extensive monitoring program, the performance standards in §§ 257.91 and 257.93 would in fact require the facility to install one.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10017

- 14 

### Organization: Salt River Project (SRP)


### Commenter : Daniel J. Casiraro Commenter Type: Electric Utility Company

Comment Excerpt Text: Under a Subtitle D program, state agencies should be allowed to establish groundwate r monitoring parameters based on site

- specific conditions due to the high variability of groundwater and geology across the United States. Many states, including Arizona, already have a robust groundwater protection program in

- place (e.g., ADEQ's Aquifer P rotection Permit Program) to fully protect regional groundwater that may become future drinking water sources. An environmental professional or a professional engineer, hydrologist, or registered geologist

should be allowed to establish an alternate list o f parameters as deemed appropriate based on

site

- specific characteristics. SRP recommends that EPA add language in the Subtitle D groundwater monitoring rules allowing the flexibility for establishing site specific parameters based on review by a state reg istered professional.

Response: Due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are allowed in79

other EPA programs, such as under the regulatory program for MSWLFs. The Agency does not believe allowing alternate groundwater monitoring programs would be workable in the context

of a self

- implementing rule, because there is no regulatory entity to judge the reasonableness of

the desired a lternatives. The requirements of the groundwater monitoring program in this rule allow as much flexibility as we believe we can accommodate, given the lack of oversight by a permitting authority, and the need to demonstrate that the rule provisions will a chieve section 4004(a)’s statutory standard. An independent PE cannot decide if an alternative list of detection parameters is acceptable.

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

- 2009

- 0640

- 10017

- 29 

### Organization: Salt River Project (SRP)


### Commenter : Daniel J. Casiraro Commenter Type: Electric Utility Company

Comment Excerpt Text: SRP urges EPA to adopt the non

- hazardous waste, Subtitle D Prime approach to regulation of CCRs with the following important revisions or modifications:

Allow alternatives to composite liners when site specific characteristics support such

alternatives.

Require closure, if necessary, only under a state approved program that provides a reasonable

time frame.

Allow an alternative list of groundwater monitoring parameters based on site specific conditions and approval by a registered professional.

Incl ude a mechanism for qualified state programs to administer the rules instead of the self

implementing approach.

Ensure an adequate time frame for facilities to come into compliance.

The Subtitle D Prime option offers the same level of protection as the Subtitle C option without the significant and costly impacts of Subtitle C, while (i) allowing the continued use of environmentally acceptable existing CCR surface impoundments for the remainder of their useful lives; and (ii) supporting the continued ben eficial use of CCRs.

Response: With regard to the groundwater monitoring comment, EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions. However, due to the fact tha t EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only aut horized to establish minimum national standards under sections 1008(a)(3) and80

4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be

“ no reasonable probability of adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are more sensitive and those that are l ess sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human healt h and the environment across the country. EPA accomplished this through a combination of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of specific techn ical parameters to ensure that the performance standard will in fact be met.

Section 4.4.7.3

- EPA solicits comment on its omission of alternative schedules for GW monitoring and corrective action under 257.21(g) and 258.50(h), and state deletion and/or establishment of alternative lists of parameters under 258.54(a)(1)&(2) and 257.24(a)(1)&(2), because such modifications may be particularly susceptible to abuse (35205)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 10 

### Organization: We Energies


### Commenter : Art Covi Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text: COMMENT: Creditable state level regulatory programs now exist in states like Wisconsin which properly regulate CCRs. The proposed rule should allow opera tions under an alternative standard where there is state regulatory program oversight with mechanisms in place to ensure that modifications are technically appropriate.

Wisconsin NR500 regulations and Michigan Public Acts 451 Part 115 effectively address the adequacy and need for landfill monitoring. This also provides for termination of unnecessary monitoring when code compliance conditions are met.

National standards for state programs under a Subtitle D approach should address ground water monitoring criteria and be modeled after the Wisconsin program.

Prescriptive monitoring programs do not allow for site specific conditions which may warrant a

different schedule of sampling or analysis protocols. A state administered regulatory program is capable of making those judgments in the interest of valid and meaningful data and knowledge of local hydrology and environmental conditions.

Response: The sections of RCRA that are applicable to CCRs

– sections 1008(a), 4004(a), and 4005(a) only authorize the Agency to establish minimum national criteria with which facilities81

must comply. EPA’s regulation does not preclude a state from incorporating the regulatory provisions bein g finalized today into state law and implementing and enforcing a single set of requirements. Nor does the regulation require the state to enforce the federal requirements, the decision to bring an action under 7002 lies entirely within the state’s discret ion.

We are not able to require states to develop programs or approve elements of a federal program. While states may have programs for the regulation of CCRs, which in some cases may be more stringent than today’s final rule, the federal program must b e written as though states do not have a CCR disposal program in place. Because this rule is self

- implementing and there is no regulatory entity available to judge the reasonableness of the desired alternatives, EPA has

determined that it is not able to a llow alternatives in most cases, and instead is establishing

minimum technical criteria for these units.

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 wa ste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 13 

### Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company


### Commenter : Chris M. Hobson Commenter Type: Electric Utility Company

Comment Excerpt Text: Groundwater Monitoring, Sampling, and Analysis: Any New Standards Should Provide Greater Flexibility.

Should EPA enact final regulations with respect to groundwater monitori ng, sampling, and analysis, Southern Company urges EPA to revise the proposed standards in order to ensure a program that is both sufficiently protective of human health and the environment and more responsive to the realities of CCB disposal.

Any new st andards should allow alternative monitoring parameters and schedules. [Footnote 51: Id. at 35205.]

Any new standards should allow the facility owner to develop and apply alternative monitoring parameters and schedules. First, the parameter list should be specific to the material that is contained in the landfill that is being monitored, based on a material characterization. It is more efficient and effective to target the parameter list for CCB landfills to the waste being disposed.

Second, groundwater monitoring schedules should be dependent on site

- specific conditions. Factors such as hydraulic conductivity of the geologic media, hydraulic gradients, and natural attenuation potential should be taken into account when groundwater monitoring schedules ar e formulated. Specifically, where the geology of a given area is conducive to relatively slow contaminant transport, annual monitoring would be sufficient. Moreover, groundwater flow direction and rates should be taken into account when determining the app ropriate groundwater monitoring frequency.82

Any new standards should allow state

- approved modifications to the monitoring program, including alternative compliance schedules where appropriate.

Response: EPA generally agrees that it would be ideal to est ablish a monitoring program specifically tailored to account for individual site conditions. However, as noted previously, due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only authorized to establish minimum national standards under sections 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of

adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are more sensitive and those that are less sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human health and the environment across the country. EPA accomplished this through a combination of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. For example, the detection monitori ng parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those parameters that are regularly monitored in the field w hen any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate whether constituents are leaking from the unit. The assessment monitoring list, which includes a larger number of constituen ts, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a more extensive monitoring program, the performance standards in §§257.91 and 257.93 would in fact require the facility to install one.

The commenter is r eferred to Unit V of the preamble for a discussion of the Agency’s rationale and approach for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit VI of the preamble discuss ion for the specific information on the groundwater monitoring technical requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 44 

### Organization: NiSource Corporate Services


### Commenter : Dale A. Helmers Commenter Type: Electric Utility Company :

Comment Excerpt Text: Consistent with the municipal landfill regulations (Sections 257.21, 258.50, 258.54, and 257.24(a)), Subtitle D should allow for alternatives to the various compliance requirements contained in Sections 257.90 through 257.98. These in clude, but are not limited to, allowing for (a) the suspension of groundwater monitoring, (b) alternative schedules for groundwater monitoring, (c) alternative schedules for corrective action, and (d) the deletion of monitoring parameters. Providing for al ternatives allows facilities to take site specific conditions into83

account and properly considers the actual risks associated with each unit. Providing for alternatives allows facilities to take site specific conditions into account and properly considers the actual risks associated with each unit and would be consistent with how EPA regulates similar waste streams. Furthermore, EPA has determined that third party certification, notification to the state, and placement of information in the operating record provide adequate oversight to the self

- implementing requirements. EPA has failed to adequately explain why this type of oversight is insufficient in this case

.

Response: Due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are allowed in other EPA programs, such as under the regulatory program for MSWLFs. The Agency does not believe allowing alternate groundwater monitoring programs would be workable in the context

of a self

- implementing rule, because there is no regulatory entity to judge the reasonableness of the desired alternatives. The requirements of the groundwater monitoring program in this rule allow as much flexibility as we bel ieve we can accommodate, given the lack of oversight by a permitting authority, and the need to demonstrate that the rule provisions will achieve section 4004(a)’s statutory standard

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06532

- 39 

### Organization: Southern Illinois Power Cooperative


### Commenter : Leonard F. Hopkins Commenter Type: Electric Utility Company

Comment: Consistent with the municipal landfill regulations (40 C.F.R. §§ 257.21, 258.50, 258.54, and 257.24(a)), Subtitle D should allow for alternatives to the various compliance requirements contained in Sections 257.90 through 257.98. These include, but are not limited to, allowing for (a) the suspension of groundwater monitoring, (b) alternative schedules for groundwater monitoring, (c) alternative schedules for corrective action, and (d) the deletion of monitoring parameters. Subtitle D is self

- implementing an d EPA has determined that the third party certification from a registered PE, notification to the state, and placement of information in the operating record provide adequate oversight. Providing for alternatives allows facilities to take site specific con ditions into account and properly considers the actual risks associated with each

unit

.

Response: Due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexib ilities that are allowed in other EPA programs, such as under the regulatory program for MSWLFs. The Agency does not believe allowing alternate groundwater monitoring programs would be workable in the context

of a self

- implementing rule, because there is no regulatory entity to judge the reasonableness of the desired alternatives. The requirements of the groundwater monitoring program in this rule allow as much flexibility as we believe we can accommodate, given the lack of oversight by a permitting autho rity, and the need to demonstrate that the rule provisions will achieve section 4004(a)’s statutory standard

.84



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06819

- 28 

### Organization: Missouri Department of Natural Resources


### Commenter : Robert Stout on behalf of Dru Buntin Commenter Type: State Government

Comment Excerpt Text: We recommend granting states, with approved implementing authority, regulatory flexibility similar to that found in the MSWLF regulation §257.2I(g) and §258.50(h) pertaining to schedules for gr oundwater monitoring and corrective action. It is our experience that, due to the variability in groundwater flow, intermittent production or special site conditions, alternate monitoring schedules may be appropriate for facilities located in unique hydrol ogic conditions, or where well production may be inadequate for sampling or not representative of overall groundwater quality due to seasonal effects on well production or gradient status.

Response: Under the proposed rule, monitoring would be required n o less frequently than semi

annually. In the final rule, semi

- annual sampling remains the general requirement; however, in response to comments, EPA has decided to include a provision that would allow an alternative sampling frequency if there is not adequ ate groundwater to flow to sample wells semi

- annually. Accordingly, EPA has included a provision to address the situations where there is insufficient ground water available to collect and analyze samples around CCR disposal units on a semi

annual basis.

An owner or operator seeking to establish an alternative frequency must demonstrate that less frequent monitoring is necessary based on the following three factors: (1) lithology of the aquifer and the unsaturated zone; (2) hydraulic conductivity of the aquifer and the unsaturated zone; and (3) groundwater flow rates. In addition, the rule requires the owner or operator to demonstrate that any alternate sampling frequency would be no less effective in ensuring that any leakage from the CCR disposal u nit will be discovered within a timeframe that does not materially delay the initiation of any necessary remediation measures. The owner or operator must have a qualified professional engineer certify that the alternative (i.e., less frequent) monitoring will achieve this performance standard. The final rule also specifies that any alternate frequency during the active life (including closure) and the post

- closure care period shall be no less than annual. As noted, the owner or operator will bear the burd en of justifying an alternate frequency under this regulation, and in any court proceeding brought to enforce these requirements. This means that any uncertainty or lack of information will be weighed against the entity seeking to justify the alternate fr equency.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06827

- 15 

### Organization: Oklahoma Gas and Electric Company (OG&E)


### Commenter : Kenneth E. Raymond Commenter Type: Electric Utility Company

Comment Excerpt Text: Alternate Groundwater Monitoring Parameters Should be Provided While Others Should be

Eliminated85

OG&E understands the need for groundwater monitoring where CCR surface impoundments are located and supports modeling any requirements under the Subtitle D option after those that are already establishe d for municipal solid waste landfills. Unfortunately, the Agency has chosen not to provide for an alternate list of indicator parameters which is a departure from the aforementioned groundwater monitoring requirements codified in Parts 257 and 258. Accordi ng to the Agency, an alternate list of indicator parameters was not provided because of the lack of direct state oversight and that the composition of CCRs would not be expected to vary such that the existing parameters would become inappropriate.

Given th at site

- specific factors are critical for establishing constituents and corresponding concentrations for detection and assessment monitoring, it is important that the Agency provide for variances from the otherwise applicable parameters used for detecting constituents in groundwater and assessing statistically significant increases (or decreases in the case of pH) above background for those parameters. Given wide variations in site geology and groundwater quality across the country or even within a particul ar region or state, it may become necessary to adjust the specific groundwater monitoring requirements to account for various site

- specific conditions. Any variances would, of course, be subject to the review and approval by the appropriate state regulator y agency and would become enforceable as a condition in the owner/operators permit.

Therefore, the Agency should amend the groundwater monitoring provisions of the proposed rule to allow for a state to eliminate any parameter if it can be shown that it is not reasonably expected to be in or derived from the CCRs contained in the surface impoundment. Similarly, the state should be authorized to establish an alternative list of indicator parameters in lieu of some or all of the otherwise specified indicator p arameters if the alternative parameters provide a reliable indication of releases from the CCR surface impoundment to the groundwater

.

Response: EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions. However, due to the fact that EPA cannot require states to develop a permitting program for this regulation, w e are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only authorized to establish minimum national standards under sections 1008(a)(3) and 4004 (a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of adverse effects on

health or the environment” nationw ide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are more sensitive and those that are less sensitive. While it is theoretically possible that this may result in “overpr otection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human health and the environment across the country. EPA accomplished this through a combina tion of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. For example, the detection monitoring parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those parameters that are reg ularly monitored in the field when any ground water monitoring is86

undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate whether constituents are leaking from the unit. The assessment monitoring list, which include s a larger number of constituents, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a more extensive monitoring program, the performance standards in §§257.91 and 257.93 would in fact require the facility to install one.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10166

- 18 

### Organization: Consumers Energy Company


### Commenter : Gary A. Dawson Commenter Type: Electric Utility Company

Comment Excerpt Text: The CCR proposed rules should provide for the monitoring of alter nate indicator and compliance parameters in groundwater in the same manner as provided for in municipal solid waste landfill monitoring provisions under 40 CFR Part 258.

Response: EPA generally agrees that it would be ideal to establish a monitoring progr am specifically tailored to account for individual site conditions. However, due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are auth orized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only authorized to establish minimum national standards under sections 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establi sh minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are more sensitive and those that are less sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human health and the environment across the country. EPA accomplished this through a combination of performance standards, which inherently provide flexibility in that i t does not specify a single method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. For example, the detection monitoring parameters

are limited in number and are de signed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those parameters that are regularly monitored in the field when any ground water monitoring is

undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate whether constituents are leaking from the unit. The assessment monitoring list, which includes a larger number of constituents, is based on what is expected in CCR wastes . However, to the extent that site conditions warrant a more extensive monitoring program, the performance standards in §§257.91 and 257.93 would in fact require the facility to install one.

Section 4.4.7.4

- EPA also solicits comment on whether a more prescriptive approach could/should be developed under Subtitle D and whether requirement for certification by independent PE would be effective/appropriate in such a case (35205)87



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 110 

### Organization 1 

### : Earthjustice et. al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group :



### Comment Excerpt Text: I have reviewed the comments on groundwater monitoring prepared by Ben Ross and I concur with these comments. Groundwater monitoring must begin prior to the disposal of waste with active monitoring during operation of the facility. After closure of the site, groundwater monitoring must be continued for a minimum of 30 years. If during this time contaminants from the facility are detected, corrective actions must be imple mented. Upon completion of the groundwater remedial activities, the closed facility will begin a new 30 period of post

- closure monitoring.

Response : Groundwater monitoring does begin prior to the disposal of waste at new facilities. The groundwater monitoring continues throughout the active life of the disposal unit and throughout the post

- closure care period. After closure the monitoring continues for 30 years. If a statistically significant increase is seen in an Appendix IV constituent during th is time, the facility would be required to conduct corrective action.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 62 

### Organization: Earthjustice et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text:

The remainder of these comments are written on the assumption that, after reconsidering how many monitoring phases to prescribe, EPA chooses three. I have not tried to evaluate how many phases are best and do not endorse the three

- phase choice.

Response: The Agency acknowledge s and appreciates the comment

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06400

- 14 

### Organization: Waste Management (WM)


### Commenter : Susan Briggum Commenter Type: Other Company

Comment Excerpt Text:

Subtitle D standards tailored to the characteristics of CCRs: EPA’s proposed liner and monitoring standards make sense and, as EPA demonstrates, will provide sound and reliable long

- term protection. The addition of a 4010 permit for CCR facilities provides the mechanism to respond to monitoring results and provide as surance of compliance.88

EPA’s proposal, however, focuses largely on the absence of a permit and the concept that a licensed professional engineer’s judgment will take care of the details in terms of proper CCR handling. It makes much more sense for EPA to confer with the utility industry and their service providers, like ourselves, to identify specific fundamental performance criteria under a 4010 permit program. Proper handling of CCRs requires waste analysis to determine the specific

characteristics of th e particular waste stream (e.g., its potential for generation of hydrogen sulfide gas), its pH, water content and impact on slope stability, potential for heat generation and potential to clog leachate and gas collection lines. There needs to be a plan to handle the material in a way that controls dust, and uses the appropriate amount of moisture to control dust. Containment standards are necessary for transportation of dry CCRs.

It would be desirable for EPA to provide baseline criteria for waste accepta nce and analysis to assure proper recognition of waste chemistry and physical characteristics. We realize that because the record for this rulemaking has not focused on describing good operating practices, EPA may need to re

- propose a Subtitle D permit pro gram specific to CCR only or to proposed modifications to the Subtitle D program tailored to the needs of CCR handling. In order not to delay progress, it would make sense for EPA to convene an advisory panel or work group of the regulated industry, Subtit le D service providers, state regulators (Illinois and Pennsylvania, for example, have developed standards regulating use and disposal of CCRs and would serve as resources for EPA)[Footnote 6: See, e.g., Pennsylvania Department of Environmental Protection, General Permit for Calcium Sulfate FGD material (physical testing an chemical analysis requirements, permeability requirements, distance to groundwater, mixture requirements, application and compaction requirements, monitoring, storage requirements, gener al operating standards, conditions for beneficial use, recordkeeping and reporting); Illinois Environmental Protection Agency, Title 35, Subtitle B, Subchapter *, Part 816 (quality control procedures for CCR mixtures).] and experts in affected community an d environmental groups. This group could engage in the kind of discussion that would allow EPA to re

- propose promptly a fully developed

standard.

Response: The sections of RCRA that are applicable to CCR

– sections 1008(a), 4004(a), and 4005(a) only aut horize the Agency to establish minimum national criteria with which facilities must comply. EPA’s regulation does not preclude a state from incorporating the regulatory provisions being finalized today into state law and implementing and enforcing a single set of requirements. Nor does the regulation require the state to enforce the federal requirements, the decision to bring an action under 7002 lies entirely within the state’s discretion.

We are not able to require states to develop programs or approve elements of a federal program. While states may have programs for the regulation of CCRs, which in some cases may be more stringent than today’s final rule, the federal program must be writte n as though states do not have a CCR disposal program in place.

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 4.4.7.5

- Applicability (35205

- 35206)89



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10166

- 17 

### Organization: Consumers Energy Company


### Commenter : Gary A. Dawson Commenter Type: Electric Utility Company

Comment Excerpt Text: The CCR proposed rules should provide for variances from groundwater monitoring at facilities where geological or hydrogeological conditions preclude the contamination of groundwater.

Response: The sections of RCRA that are applicable to CCRs

– sections 1008(a), 4004(a), and 4005(a) only authorize the Agency to establish minimum national criteria with which facilities must comply. EPA’s regulation does not preclude a state from incorporating the regulatory provisions being finalized today into state law and implementing an d enforcing a single set of requirements. Nor does the regulation require the state to enforce the federal requirements, the decision to bring an action under 7002 lies entirely within the state’s discretion.

We are not able to require states to develop programs or approve elements of a federal program. While states may have programs for the regulation of CCRs, which in some cases may be more stringent than today’s final rule, the federal program must be written as though states do not have a CCR disposa l program in place. We have allowed as much flexibility as possible, but variances from groundwater monitoring are not allowed.

The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtit le D rule for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit VI of the preamble for a complete discussion of the technical requirements, including groundwater monitoring.

Section 4.4.7.5.1

- EPA solicit s comment on whether there is a shortage of drilling contractors (35206)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 11 

### Organization: We Energies


### Commenter : Art Covi

Comment Excerpt Text: Regional availability of drillers may be an issue if a short compliance window is stipulated, leading to unqualified contractors entering the business of installing monitoring wells which are not constructed or developed properly. These issues are adequately addressed by state licensing

programs.

Response: The Ag ency acknowledges and appreciates the comment.90



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 144 

### Organization: Kentucky Department for Environmental Protection


### Commenter : R. Bruce Scott Commenter Type: State Government

Comment Excerpt Text: Kentucky has experienced no such shortage of drilling contractors to meet existing program requirements, but it is unknown whether there is adequate capacity to meet the expanded requirements of the proposed rule if such a massive change in the management of CCR were to

occur.

Response: The Agency acknowledges and appreciates the comment.

Section 4.4.7.5.2

- EPA solicits comment on whether other types of provisions, such as suspension of GW monitoring under 257.21(b) and 258.50(b), and state establishment of compliance schedules under 257.21(d) and 258.50(d), are appropriate for CCR LFs and SIs (35206)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 14 

### Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company


### Commenter : Chris M. Hobson Commenter Type: Electric Utility Company

Comment Excerpt Text: EPA has requested comment on whether the regulations should provide for the suspension of groundwater monitoring and provisions for state establishment of a compliance schedule under 257.21(d) and 258.50(d). [Footnote 52: Id. at 35206.] Many types of groun dwater sampling

programs

— such as programs for underground storage tanks, voluntary cleanups / brownfields, and state industrial programs

— allow for alternate sampling frequencies based on site

- specific information. EPA has not provided a clear explanation o f why established regulatory and industry practices that have been in place for many years in other contexts are not appropriate for

CCBs.

Generally, where groundwater monitoring is required, more frequent sampling is appropriate during early phases. How ever, after some period of time of monitoring with no compliance

issues

— generally, three to ten years, depending on the number of background and compliance

wells

— there is sufficient background data for statistical analysis, backed by a proven history of

no impacts. At that point, monitoring is not necessary on any frequency greater than an annual basis. Similarly, if a landfill is in post

- closure care for at least five years without any significant compliance issues, it is reasonable to find that the liner system, cap and cover, and other measures are performing as designed to prevent leaching to the uppermost aquifer. Monitoring on an annual or even biannual basis is appropriate. On the other hand, if monitoring reveals a91

problem, then more frequent monitor ing such as quarterly may be appropriate.

States are already administering programs that call for adjustments of this nature in other areas, and EPA does not assert that the states are performing on a less than satisfactory basis with respect to undergro und storage tanks, brownfields, etc. Accordingly, the record does not support divesting the states of this authority with respect to CCBs. Moreover, state regulators have more knowledge than EPA in regard to local geology, hydrology, and facility history. Knowledge of such factors would allow the director of a state program to develop a compliance schedule that is designed to be efficient and effective for a specific site.

Response : Due to the fact that EPA cannot require states to develop a permitting pro gram for this regulation, we are not able to allow many of the site

- specific flexibilities that are allowed in other EPA programs, such as under the regulatory program for MSWLFs. The Agency does not believe allowing alternate groundwater monitoring progr ams would be workable in the context

of a self

- implementing rule, because there is no regulatory entity to judge the reasonableness of the desired alternatives. The requirements of the groundwater monitoring program in this rule allow as much flexibility as we believe we can accommodate, given the lack of oversight by a permitting authority, and the need to demonstrate that the rule provisions will achieve section 4004(a)’s statutory standard.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 58 

### Organization: Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC)


### Commenter : Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government

Comment Excerpt Text: Regarding the request on p. 35206 of the preamble for comment on lack of provision to suspension of groundwater monitoring, we agree that there is a potential for abuse if there is lack of State agency oversight. However, we object to not allowing this fle xibility for State agencies that have effective solid waste regulatory authority over CCR landfills and which have a history of groundwater monitoring authority and data submission and retention.

Response: The sections of RCRA that are applicable to CCR s

– sections 1008(a), 4004(a), and 4005(a) only authorize the Agency to establish minimum national criteria with which facilities must comply. EPA’s regulation does not preclude a state from incorporating the regulatory provisions being finalized today int o state law and implementing and enforcing a single set of requirements. Nor does the regulation require the state to enforce the federal requirements, the decision to bring an action under 7002 lies entirely within the state’s discretion.

We are not able to require states to develop programs or approve elements of a federal program. While states may have programs for the regulation of CCRs, which in some cases may be more stringent than today’s final rule, the federal program must be written as though states do not have a CCR disposal program in place. We have allowed as much flexibility as possible, but variances from groundwater monitoring are not allowed.92

The commenter is referred to Units IV and V of the preamble discussion for the Agency’s

ratio nale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit VI of the preamble for a complete discussion of the technical requirements, including groundwater monitoring.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 46 

### Organization: NiSource Corporate Services


### Commenter : Dale A. Helmers Commenter Type: Electric Utility Company

Comment Excerpt Text: Annual Certification (40 C.F.R. § 257.90(b))

The requirement to notify the state once each year that the CCR landfill or surface impoundment is in compliance with the groundwater monitoring and corrective action provisions is extremely burdensome and will not provide any environmental benefit. All of this information will be part of the operating record and available upon request. This requirement should be deleted.

Response: Because this is a self

- implementing rule that relies on citizen enforcement, it is important for the owner or operator of the facility to periodically document that they are in compliance with the existing groundwater monitoring requirements, and an annual certification is the easiest and most effective way to achieve this. While the groundwater monitoring data will be made available on the owner or oper ator’s publicly accessible website and in the operating record of the facility, the analysis of these data is complicated and requires a certain level of scientific expertise to analyze the data correctly. As such, a document that serves as both an interp retative record of scientific analysis and regulatory compliance is critically important to the successful implementation of a self

- implementing rule that is to be enforced exclusively by

citizens and the states.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 0 6723

- 23 

### Organization: West Virginia Department of Environmental Protection (WVDEP)


### Commenter : Gary Casto on behalf of Randy C. Huffman Commenter Type: State Government

Comment Excerpt Text: Section 257.90 requires that the owner or operator notify the State annually throughout the active and post closure care period that surface impoundments and landfills are in compliance with the groundwater monitoring and corrective action provisions of Subtitle D. That determination must instead be made by the State regulatory agency after reviewing information provided by the

owner or operator.

Response: The sections of RCRA that are applicable to CCRs

– sections 1008(a), 4004(a), and 4005(a) only authorize the Agency to establish minimum national criteria with which facilities must comply. EPA’s regulation does not preclude a state from incorporating the regulatory provisions being finalized today into state law and implementing and enforcing a single set of93

requirements. Nor does the regulation require the stat e to enforce the federal requirements, the decision to bring an action under 7002 lies entirely within the state’s discretion.

We are not able to require states to develop programs or approve elements of a federal program. While states may have programs for the regulation of CCRs, which in some cases may be more stringent than today’s final rule, the federal program must be written as though states do not have a CCR disposal program in place.

Therefore, a state may have a CCR program and may determine if a facility is in or out of compliance, but for the purposes of this rule, b ecause this is a self

- implementing rule that relies on citizen enforcement, it is important for the owner or operator of the facility to periodically document that they are in c ompliance with the existing groundwater monitoring requirements, and an annual certification is the easiest and most effective way to achieve this. While the groundwater monitoring data will be made available on the owner or operator’s publicly

accessible website and in the operating record of the facility, the analysis of these data is complicated and requires a certain level of scientific expertise to analyze the data correctly. As such, a document that serves as both an interpretative record of scientif ic analysis and regulatory compliance is critically important to the successful implementation of a self

- implementing rule that is to be enforced exclusively by citizens and the states.

Section 4.4.7.6

- GW monitoring systems: establishing minimum requirement of one upgradient and three downgradient wells at all CCR units (35206)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 71 

### Organization: Earthjustice et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text:

Number of wells

- The common regulatory minimum requirement of three downgradient wells, which dates back to at least 1957[Footnote 8: Los Angeles Regional Water Pollution Control Board, Adopting long

- range waste disposal and water quality objectives for San Fernand o Valley, Resolution No. 57

- 61, August 1957.] and was incorporated in RCRA Subtitle C regulations in 1980, is applicable to even the smallest disposal unit. The absence of any minimum unit size shows that the three wells are necessary to accommodate uncert ainty and variability in flow direction, even at a point source. Three downgradient wells are insufficient to ensure detection of leakage from the very large disposal units typically used for coal combustion

wastes from electric utilities. Due to uncertain ty in flow directions, the perimeter of the disposal unit must be monitored on its crossgradient as well as down

- gradient sides. The minimum

number of non

- background monitoring points should be three plus one for every full 500 feet of downgradient and cro ss

- gradient perimeter of the disposal unit. (That is, if the perimeter length adds up to 1200 feet, the minimum number of wells would be 5.) Wells should be spaced no more than 500 feet apart along the downgradient and cross

- gradient perimeter.94

Response : The Agency acknowledges the commenter’s concern that very large CCR disposal units may require more than the minimum number of wells to characterize background and ensure the detection of any leakage. Today’s finalized requirements specify that the ground water monitoring network must be capable of detecting a release from the CCR disposal unit. A sufficient number of monitoring wells must be located downgradient of the CCR disposal unit and be screened at intervals in the uppermost aquifer to ensure promp t contaminant detection, and enough upgradient wells are needed to determine background groundwater quality. The placement and screening of wells in the detection monitoring network must be based on a thorough site investigation. Downgradient monitoring wells must be located at the edge of the CCR disposal unit, or the closest practicable distance from the unit boundary, to satisfy the requirements for prompt contaminant detection. The placement and spacing of detection monitoring wells along the downgra dient perimeter of the CCR disposal unit must be based on the abundance, extent, and physical/chemical characteristics of the potential contaminant pathways. All potential pathways must be monitored. Upgradient background wells must be located beyond the u pgradient extent of potential contamination. Where hydrologic conditions do not allow identification of wells which are hydraulically upgradient (e.g., floodplains, where nearby surface water can influence groundwater), background groundwater quality may be determined from wells that are not upgradient as long as they provide samples as representative or more representative of background than the upgradient wells.

Although EPA today is finalizing a requirement for one upgradient and three downgradient we lls as a regulatory minimum standard, the Agency expects large CCR disposal units to have many more wells, because most disposal sites have hydrologic settings that are too complex for the regulatory minimum to be adequate. Facilities with large CCR dispo sal sites could have as many as thirty or more downgradient wells. The Agency is today requiring those facility owners and operators that utilize the minimum number of wells to justify the reduced density with geologic and hydrologic evidence that is cert ified by a qualified professional engineer and placed into the operating record. Factors that may substantiate a reduced density of groundwater monitoring wells includes simple geology (i.e., horizontal, thick, homogenous strata that are continuous

across site, with no fractures, faults, folds, or solution channels) , a flat and constant hydraulic gradient, uniform hydraulic conductivity, low seepage velocity, and high dispersivity potential.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06517

- 15


### Commenter : Anon ymous Commenter Type: Anonymous

Comment Excerpt Text: 257.91(e) This subsection requires the location, depth, and number of groundwater monitoring wells to be

based on a site

- specific characterization of the geologic and hydrologic units at the site. Please clarify the level of detail required to determine those site characteristics. The language in this subsection appears to be identical to the language in 40 CFR 258.51(d) which is applicable to municipal solid waste landfills and has been utilized in practice for about 20 years now. Although the actual hydogeologic investigation requirements for MSW landfills vary from state to state, most states require a fairly dense pattern (one for every one to two acres) of borings, piezometers, monitoring wells, etc. to characterize the site. This typically includes at least to95

some degree taking core samples and performing down

- hole testing to determine hydraulic conductivity of certain geologic units. Additionally, in most states, a minimum of one year of

data is required to establish seasonal and temporal variations in groundwater flow. Please clarify whether the level of detail required for a hydrogeologic investigation of a proposed CCR disposal site would be comparable to that of a typical MSW landfill site.

Response: The Agency agrees that it is important to correctly characterize geologic and hydrologic conditions at a site. The primary objectives of site characterization are the definition of local geology beneath the site, and the identification of all potential pathways for contaminant migration. The movement of groundwater is closely controlled by the geology beneath the

site. The characterization of site geology shall include borehole studies that enable identification of: 1) soil types, saturated a nd unsaturated lithology, and local stratigraphy; 2) zones of potentially high hydraulic conductivity; 3) the presence of confining formations or layers; 4) geologic features such fault zones, solution cavities, and cross cutting structures such as joints and fissures; 5) continuity of petrographic features that influence porosity and permeability such as moisture content, grain size, sorting, and cementation; and 6) the potentiometric surface or water table, including any perched water table.

The patter n of borings, piezometers, etc. shall be sufficient to characterize the uppermost aquifer and any interconnected aquifers beneath the site. The site hydrologic investigation must enable a thorough characterization of: 1) aquifer thickness, vertical and ho rizontal groundwater flow rate and groundwater flow direction, including seasonal and temporal variations in groundwater flow; 2) the uppermost aquifer and confining unit(s), particularly along the lower boundary of the aquifer; and 3) the hydraulic conduc tivities, porosities, and effective porosities of the uppermost aquifer and confining unit(s). The technical information developed from the investigation must support establishment of a groundwater monitoring system consisting of both background wells

and wells at the waste unit boundary of sufficient number, spacing, and depth to determine background groundwater quality and ensure early contaminant detection from the CCR disposal

unit. Provided the above objectives of site characterization are met, incl uding the data are otherwise sufficient to establish seasonal and temporal variations in groundwater flow, EPA believes that one full year of monitoring need not be required.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 49 

### Organization: NiSource Corporate Services


### Commenter : Dale A. Helmers Commenter Type: Electric Utility Company

Comment Excerpt Text: Minimum Samples (40 C.F.R. §§ 257.94 and 257.95)

The proposal requires a minimum of four independent samples from each background and downgradient well be collected and analyzed during certain sampling events. The purpose of this requirement is not apparent. Multiple samples from the same location during a given sampling event are typically referred to as replicate samples. Collection of replicate samples i s often specified for some percentage of sampling locations (typically 5% to 20%) as part of a quality assurance/quality control (“QA/QC”) program such that an assessment of the laboratory96

equipment accuracy can be conducted. However, even as part of a QA/ QC program, replicate sampling is typically limited to the collection of two samples from the same location, not four. EPA’s Unified Guidance (EPA, 2009) for Statistical Analysis of Groundwater Monitoring Data at RCRA Facilities indicates that replicate sa mples (e.g., field splits) should not be treated as independent observations and that replicates should either be averaged or one value from each replicate set be randomly selected. The guidance further indicates that if multiple coincident samples are dis similar, professional judgment shall be used to identify the most representative result. It is recommended that this requirement be deleted.

Response: The groundwater monitoring requirements have been revised to specify that eight independent samples be collected from each well to establish background. This is because almost all statistical procedures are based on the assumption that samples are independent of each other. In other words, independent samples more accurately reflect the true range of natu ral variability in the ground water, and statistical analyses based on independent samples are more accurate. In determining, which samples are considered as independent samples, we would note that replicate samples, whether field replicates or lab splits , are not considered statistically independent measurements. EPA has previously provided guidance on what is or is not considered an independent sample, which would be equally valid in this context: “Unified Guidance Document: Statistical Analysis of Gro undwater Monitoring Data at RCRA Facilities”, March 2009, EPA 530/R

- 09

- 007 for more information.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06723

- 24 

### Organization: West Virginia Department of Environmental Protection (WVDEP)


### Commenter : Gary Casto on behalf of Randy C. Huffman Commenter Type: State Government

Comment Excerpt Text:

Section 257.91

- Because the uppermost significant aquifer may not extend under the entire disposal facility, this section should allow the flexibility to monitor multiple aquifers in addition to the uppermost significant aquifer.

Response : Determining background groundwater quality by sampling wells that are not hydraulically upgradient may be necessary where hydrogeologic conditions do not allow the owner or operator to determine which wells are hydraulically upgradient (e.g., floodplains, where nearby surface water can influence groundwater). In such cases, the rule allows the owner or operator to establish groundwater quality at existing units by locating wells that are not upgradient under certain conditions (§ 257.91(a)(1)). This pro vision may be used when hydrogeologic conditions do not allow the owner or operator to determine which wells are hydraulically upgradient and when sampling at other wells will provide data establishing background groundwater quality that is equally or more representative than that provided by upgradient wells. These conditions could include one or more of the following:

 The facility is located above an aquifer in which groundwater flow directions change seasonally.

 The facility is located near production we lls that influence the direction of groundwater

flow.

 Upgradient groundwater quality is affected by a source of contamination other than the97

CCR disposal unit.

 The proposed or existing CCR disposal unit overlies a groundwater divide or local source

of recharge.

 Geologic units present at downgradient locations are absent at upgradient locations.

 Karst terrain or fault zones modify flow.

 Nearby surface water (i.e., river) influences groundwater flow directions. Additionally, there is nothing in the rule t hat would prevent the owner or operator from monitoring multiple aquifers in addition to the uppermost significant aquifer. Certain site conditions warrant more extensive monitoring requirements, as discussed in “Technical Manual Solid Waste Disposal Faci lity Criteria”, EPA530

- R

- 93

- 017, USEPA, November, 1993, Chapter 5, Subpart E, Ground

- Water Monitoring and Corrective Action.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06819

- 29 

### Organization: Missouri Department of Natural Resources


### Commenter : Robert Stout on behalf of Dru Buntin Commenter Type: State Government

Comment Excerpt Text: The proposed regulations related to the design of the groundwater monitoring systems do not currently consider the levels of naturally occurring groundwater constituents as part of the monitoring system development and the subsequent ability to detect releases from the facility. We recommend the inclusion of "chemical constituents of groundwater" as a factor in system development in § 257.91(c) and recommend establishing basic cri terion for determining the most applicable indicator parameters as part of system development.

Response: The groundwater monitoring requirements do consider the levels of naturally occurring groundwater constituents; that is why background levels are mo nitored and compared to downgradient wells.

More detail can be found in the “Technical Manual Solid Waste Disposal Facility Criteria,”

EPA530

- R

- 93

- 017, USEPA, November, 1993, Chapter 5, Subpart E, Ground

- Water Monitoring and Corrective Action, and the “U nified Guidance Document: Statistical Analysis of Groundwater Monitoring Data at RCRA Facilities,” March 2009, EPA 530/R

- 09

- 007.

For a complete explanation on the groundwater monitoring requirements, the commenter is referred to Unit VI of the preamble to the final rule

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06819

- 32 

### Organization: Missouri Department of Natural Resources


### Commenter : Robert Stout on behalf of Dru Buntin Commenter Type: State Government

Comment Excerpt Text:

Has the EPA considered the likelihood that existing surface impoundments are frequently located98

within floodplains and that due to the potentially reversible gradients present therein, true upgradient conditions may not exist?

Response: Yes, that is why the rule allows determining background groundwater quality by sampling wells that are not hydraulically upgradient when hydrogeologic conditions do not allow the owner or operator to determine which wells are hydraulically upgradient (e.g., floodplains, where nearby surfa ce water can influence groundwater). In such cases, the rule allows the owner or operator to establish groundwater quality at existing units by locating wells that are not upgradient under certain conditions (§ 257.91(a)(1)). This provision may be used when hydrogeologic conditions do not allow the owner or operator to determine which wells are hydraulically upgradient and when sampling at other wells will provide data establishing background groundwater quality that is equally or more representative tha n that provided by upgradient wells. These conditions could include one or more of the following:

 The facility is located above an aquifer in which groundwater flow directions change seasonally.

 The facility is located near production wells that influence the direction of groundwater

flow.

 Upgradient groundwater quality is affected by a source of contamination other than the CCR disposal unit.

 The proposed or existing CCR disposal unit overlies a groundwater divide or local source of recharge.

 Geologic units present at downgradient locations are absent at upgradient locations.

 Karst terrain or fault zones modify flow.

 Nearby surface water (i.e., river) influences groundwater flow directions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06846

- 13 

### Organization: Florida Department of Environmental Protection (FDEP)


### Commenter : Richard B. Tedder on behalf Mary Jean Yon Commenter Type: State Government

Comment Excerpt Text: o In Part 257.91(a)(2) EPA requires that monitoring wells sample "groundwater passing the waste boundary." On page 35203 of the proposed rule EPA states that the relevant point of compliance would be "150 meters from the unit boundary down gradient from the unit, or the property boundary if the point of compliance (i.e., the monitoring well) is beyond the property boundary." EPA needs to clarify where the point of compliance should be for CCR landfills or surface impoundments. Is it at the waste boundary or as much as 150 meters from the waste boundary?

Response: The point of compliance is the waste boundary as specified in § 257.91. The discussion on page 35203 of the proposed rule that states, a relative point of compliance as being 150 meters from the unit boundary down gradient from the unit, or the property boundary if the point of complia nce is beyond the property boundary is in the context of soliciting comment on whether any subtitle D option should allow facilities to use an alternative design. This point is made clear by the statement that follows this point

— that is, “Although the exis ting99

part 258 requirements allow for such a demonstration, EPA is not proposing such a requirement in today’s rule.”



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09282

- 11 

### Organization: North Carolina Department of Environment and Natural Resources


### Commenter : Dexter R. Matthews Commenter Type: State Government

Comment Excerpt Text: Groundwater Monitoring: The proposed regulations would require landfills to have groundwater monitoring with a minimum of one upgradient and three downgradient wells.

Comment: For the past several years, North Carolina has allowed by practice and then required by statute that landfills located on inactive (and dry) impoundments have a double liner with a

leak detection zone. Alternative methods to detect releases from CCR landfills to groundwater, such as use of a leak detection system, should be allowed in the regulations.

Response: While the commenter claims that leachate collection fluids are representative of contaminants mobilized from CCR disposal units (because they interce pt these fluids prior to their interaction with the surrounding rock milieu), other commenters (e.g., t he Commonwealth of Kentucky, Docket No. EPA

– HQ

– RCRA

– 2012

– 0028

- 0059 3 ) claim that the leachate fluid may not faithfully represent leachates from the CCRs disposed of in the CCR disposal unit, because it could be tainted by leaching from the clays or other underlying soils constituting the liner. Specifically: The Commonwealth urges caution with double

- liner leak detection systems. As

seen with Subtitle C and many double

- lined MSW landfills, solar distillation may cause the production of 20

- 100 gallons of water per acre per day. The leaching metals or indicator parameters from the clays or other foundation soils could lead to a false positive regarding p otential groundwater contamination. It may be easier to conduct normal groundwater monitoring outside the larger footprint of the surface impoundment or landfill. (The agency should allow a monitoring well set

back of up to 500 feet, as allowed in subtitle D rules for authorized states. This would avoid drilling redundant wells at the waste boundary, usually finding “hits,” and then drilling additional wells during corrective action.) Presently, most of the CCRs designated for disposal are dest ined for disposal in monofills, where the pH of the leachate is alkaline, thus mitigating the potential of CCR leachate to extract constituents from the liner material(s). Although leaching of liner material may become more prevalent to the extent that div ersion of CCRs to MSW landfills increases in the future, from the Agency’s perspective, our concern is about the protection of groundwater, hence monitoring wells that are sited at the waste unit boundary would monitor mobilized contaminants

that have been subject to at least some of the natural attenuation and adsorption processes by the

3 Also: Virtual page 116 (3.8.2.3 and 3.8.2.2) in the Aug 2013 NODA comments document.100

surrounding soils and rocks. This composition would better represent the quality of the water infiltrating into the underlying aquifer. A determination concerning the ult imate source of the mobilized contaminants can be achieved by targeted geochemical analyses, such as by comparing the stable isotopic composition of the dissolved boron, strontium, and sulfur species in the monitoring well samples with the corresponding co mposition of the same constituents in the CCRs of the disposal unit

. While leachate collection and analysis may provide additional lines of evidence that concentrations detected downgradient are unrelated to the CCR disposal unit, (which a facility may ch oose to do), the sampling of leachate does not guarantee immediate identification of any leaks that have occurred, which is the primary purpose of the monitoring

system. Therefore, the final rule does not allow the use of other monitoring systems, such as a double liner with a leachate collection system in place of a groundwater monitoring system, but continues to require the installation of a groundwater monitoring system.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09431

- 23 

### Organization: Otter Tail Power Com pany 

### Commenter : Farren Richard Commenter Type: Electric Utility Company

Comment Excerpt Text: It is important to point out that there may be instances where there simply isn’t enough ground water available to collect and analyze samples around CCR units. In western climes in particular, the rate of ground water recharge may be too slow to allow for one upgradient and three downgradient wells. In these areas there may be insufficient recharge due to lack of precipitation or high levels of evapo

- transpiratio n occurring at the sites. Otter Tail Power Company has traditionally had similar difficulty gaining consistent ground water samples due to specific site conditions. For example, mining practices in adjacent areas may greatly alter the flow of groundwater o r even isolate a CCR unit altogether from the nearest aquifer in power plants

located as mouth

- of

- mine operations. This can result in very few productive monitoring wells and associated samples collected.

Additionally, if a leachate collection systems are installed, it would be prudent to monitor leachate for the same parameters as the groundwater monitoring wells. The reason for this is that there may be naturally occurring parameters in the monitoring wells at high levels falsely indicating groundwater r eleases. As an example, sulphate has been found at high levels in monitoring wells, while at the same time being found at low levels in leachate. The groundwater monitoring system is designed to identify releases of material (i.e. leachate) from CCR storag e and disposal units into underlying aquifers. If the leachate were not sampled in the above listed scenario, one might be lead to the conclusion that a release had occurred. Leachate analyses help confirm or refute suspected releases to groundwater.

Resp onse: Under the proposed rule, monitoring would be required no less frequently than semi

annually. In the final rule, semi

- annual sampling remains the general requirement; however, in response to comments, EPA has decided to include a provision that would allow an alternative sampling frequency if there is not adequate groundwater to flow to sample wells semi

- annually. Accordingly, EPA has included a provision to address the situations where there is insufficient101

ground water available to collect and anal yze samples around CCR disposal units on a semi

annual basis.

An owner or operator seeking to establish an alternative frequency must demonstrate that less frequent monitoring is necessary based on the following three factors: (1) lithology of the aqui fer and the unsaturated zone; (2) hydraulic conductivity of the aquifer and the unsaturated zone; and (3) groundwater flow rates. In addition, the rule requires the owner or operator to demonstrate that any alternate sampling frequency would be no less ef fective in ensuring that any leakage from the CCR disposal unit will be discovered within a timeframe that does not materially delay the initiation of any necessary remediation measures. The owner or operator must have a qualified professional engineer ce rtify that the alternative (i.e., less frequent) monitoring will achieve this performance standard. The final rule also specifies that any alternate frequency during the active life (including closure) and the post

- closure care period

shall be no less tha n annual. As noted, the owner or operator will bear the burden of justifying an alternate frequency under this regulation, and in any court proceeding brought to enforce these requirements. This means that any uncertainty or lack of information will be we ighed against the entity seeking to justify the alternate frequency.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10497

- 10 

### Organization: Seminole Electric Cooperative, Inc. (Seminole)


### Commenter : Carl Eldred Commenter Type: Electric Utility Company

Comment Excerpt Text: A Groundwater Monitoring Point of Compliance Beyond the Waste Boundary Must be Allowed As drafted, the subtitle D prime option does not provide for a groundwater monitoring point of compliance beyond the waste boundary. It appears that this m ay be an oversight. The preamble discussion indicates EPA envisioned that there would be a point of compliance consistent with the current provisions for municipal solid waste landfills (i.e., within 150 meters from the waste management boundary). For exam ple, in the discussion regarding potential alternative liner designs and associated demonstrations, EPA stated that any such alternative must: ensure that the appropriate concentration values for a set of constituents typical of CCRs will not

be exceeded i n the upper most aquifer at the relevant point of compliance

– i.e., 150 meters from the unit boundary down gradient from the unit, or the property boundary if the point of compliance (i.e., monitoring well) is beyond the property boundary.

Id. at 35203. If EPA contemplated such performance criteria in relation to potential alternative liner demonstrations, it would stand to reason that the point of compliance as provided for in 40 C.F.R. Part 258 would also be carried over into the proposed groundwater mo nitoring requirements for CCR landfills. As drafted, the point of compliance for CCR landfills would be the same as that required for a hazardous waste landfill regulated under subtitle C. Clearly, the proposed point of compliance is extremely onerous and is not justified in light of the findings of EPA’s 2010 Risk Assessment. See id. at 35145 (“Composite liners...effectively reduce [groundwater] risks from all constituents to below risk criteria for both landfills and surface impoundments.”); see also, id. a t 35175 (concluding that “these [composite] liner and leachate collection requirements will be protective of human health and the environment from the release102

of contaminants to groundwater from CCRs”). Moreover, EPA has not provided a rationale for a

more stringent point of compliance under the subtitle D prime option than is currently required for MSWLFs, which pose similar, if not greater concerns to groundwater. If adopted, therefore, the proposed point of compliance would be arbitrary and capricious. S ee State Farm, 463 U.S. at

43.

A provision for a point of compliance beyond the waste boundary is of critical importance for

Seminole because it has an FDEP

- approved groundwater zone of discharge (“ZOD”). A ZOD is defined as a “volume underlying or surrou nding 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. A more liberal ZOD dimension, sometimes in excess of 150 meters from the waste boundary, is pro vided for certain older facilities defined as “existing installations” which were in operation prior to FDEP’s groundwater rules.

Seminole’s groundwater monitoring system around the landfill is comprised of thirty

- nine (39) monitoring wells, three (3) of which are compliance wells. Sampling is performed on a quarterly basis. Seminole is an “existing installation” under FDEP’s groundwater rules and has an FDEP

authorized ZOD within which there are thirty

- nine (39) groundwater monitoring wells that are sampl ed quarterly. Seminole’s ZOD extends laterally to its property boundary and exceeds 150 meters. If the proposed point of compliance was adopted (i.e., at the waste boundary), or even the part 258 requirements, Seminole could be in immediate non

- compliance with this requirement, even though it has operated for many years in accordance with FDEP regulations and has not created any off

- site impacts to drinking water. Thus, not only must the proposed subtitle D prime option provide for a point of compliance bey ond the waste boundary, it must also provide for a state

- approved alternative that may extend beyond 150 meters. Without such flexibility, Seminole could be forced to initiate corrective measures to meet maximum concentration levels in 40 C.F.R part 141 or background levels.

Such action is neither warranted nor necessary. Florida’s groundwater protection program works. It not only establishes a reasonable point of compliance, but also requires interim detection wells and notification to FDEP if significant exceedances of background levels are detected. Consequently, potential impacts to groundwater are detected and addressed before water quality standards or criteria are exceeded at the point of compliance. It would be regulatory overkill for EPA to promulg ate regulations that override a state program that has operated successfully for over 20 years and to impose unwarranted corrective measures without a commensurate

environmental benefit.

Response: The point of compliance is the waste boundary as specified in §257.91. The discussion on page 35203 of the proposed rule that states, a relative point of compliance as being 150 meters from the unit boundary down gradient from the unit, or the property boundary103

if the point of compliance is beyond the pr operty boundary is in the context of soliciting comment on whether any subtitle D option should allow facilities to use an alternative design. This point is made clear by the statement that follows this point

— that is, “Although the existing part 258 requir ements allow for such a demonstration, EPA is not proposing such a requirement in today’s rule.”

The objective of a groundwater monitoring system is to intercept groundwater to determine whether the groundwater has been contaminated by the CCR disposal un it. Early contaminant detection is important to allow sufficient time for corrective measures to be developed and implemented before sensitive receptors are significantly affected. To accomplish this, the rule requires that wells be located to sample grou ndwater from the uppermost aquifer at the waste unit boundary. These requirements have been adopted without fundamental change from the proposal.

Section 4.4.7.7

- GW sampling and analysis requirements: same provisions as those already in use for CESQG and MSWLF facilities (35206)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 64 

### Organization: Earthjustice et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text: This comment therefore focuses on how a phased monitoring system that uses diagnostic parameters from the beginning would be structured and on the advantages of diagnostic parameters over the general chemistry parameters used in the existing Subtitle C and D programs. The main elements of such a system would be as follo ws:

• Detection monitoring includes, at the least, analysis by ICP

- AES [Footnote 1: Inductively coupled plasma atomic emission spectroscopy.] for metals that are characteristically found in water contaminated by coal combustion wastes and uncommon otherwi se.

• A detection of any of these diagnostic parameters above previously measured background creates a rebuttable presumption that the disposal site has contaminated the groundwater. Unless the site operator, using previously collected background data, ca n demonstrate that the measured contamination results from another specifically identified natural or anthropogenic source, the site enters either assessment monitoring or (if the detection was above groundwater quality standards) corrective action.

• In assessment monitoring and corrective action, samples are analyzed for a full list of potential contaminants, with more sensitive analytical methods where appropriate.104

Samples are also analyzed for a full suite of general chemistry parameters including maj or ions.

Response: The Agency acknowledges and appreciates the comment. The rule includes a phased approach to monitoring. The first phase is detection monitoring where indicators would be monitored to determine whether groundwater was potentially being contaminated. In selecting the parameters for detection monitoring, EPA chose constituents that are present in CCRs, and would rapidly move through the subsurface and thus provide an early detection as to whether contaminants were migrating from the CCR d isposal unit. The detection monitoring parameters do not necessarily have MCLs. When a statistically significant increase over background levels is detected for any of these parameters, the rule would require the facility to begin an assessment

monitorin g program to determine if releases of CCR constituents of concern had occurred. The assessment monitoring constituents were chosen because of their presence in CCRs, toxicity, presence in damage cases, or relevance in the risk assessment carried out for t he rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 47 

### Organization: NiSource Corporate Services


### Commenter : Dale A. Helmers Commenter Type: Electric Utility Company

Comment Excerpt Text: Collection of Background (40 C.F.R. §§ 257.91 and 257.93)

The requirements for the design of groundwater monitoring systems are the same for both existing and new CCR landfills and surface impoundments. Design of a groundwater monitoring system that yields groundwater data representative of “background quality” is ho wever, more challenging for existing CCR landfills and surface impoundments than it is for new facilities. In most cases collection of true background data (i.e., data collected prior to construction of the landfill or surface impoundment) is not possible at an existing CCR unit. Horsey et. al. describe the challenge in obtaining true background data at existing CCR units as follows:

A common situation faced by many older facilities is that there is statistically significant natural spatial variation in th e hydrogeology underlying their site, but their ground water monitoring began after waste had been placed. If the standard approach of comparing water quality between upgradient and downgradient wells is used (interwell analysis), the statistical tests wil l often be unable to distinguish between a statistical difference in water quality caused by a release from the facility and a statistical difference caused simply because of the natural upgradient versus downgradient hydrogeologic variation. Consequently, where there is statistically significant variation in the natural hydrogeology an intrawell analysis is the preferred statistical approach. Horsey HR P Carosone

- Link, MR Sullivan, J Loftis. 2001. The Effectiveness of Intrawell Ground Water Monitoring Stat istics at Older Subtitle D Facilities. NIC The eGovernment Company, Indianapolis, Indiana. Available URL: http://www.environmental

center.com/articles/article1019/article1019.htm

In recognition of this, EPA should specifically allow the use of and relianc e on intrawell analyses, including the use of trend graphs at an existing CCR unit.105

Response: The Agency recognizes that there are situations where intra

- well analyses are appropriate. Intra

- well comparisons, including the use of trend graphs, where data of one well are evaluated over time, are useful in evaluating trends in individual wells and for identifying

seasonal effects in the data. The intra

- well comparison methods do not compare background data to compliance data. However, if an existing facility does not have valid background data, intra

well comparisons may represent the only valid comparison available. Thus, the rules provide for this situation. However, in the absence of a true background well, several monitoring events may be required to det ermine trends and seasonal fluctuations in ground

- water quality. More detail can be found in the “Technical Manual Solid Waste Disposal Facility Criteria,” EPA530

- R

- 93

- 017, USEPA, November, 1993, Chapter 5, Subpart E, Ground

- Water Monitoring and Corrective Action, and the “Unified Guidance Document: Statistical Analysis of Groundwater Monitoring Data at RCRA Facilities,” March 2009, EPA 530/R

- 09

- 007.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 48 

### Organization: NiSource Corporate Services


### Commenter : Dale A. Helmers Commenter Type: Electric Utility Company

Comment Excerpt Text: Field Filtering Samples (40 C.F.R. § 257.93(b))

The prohibition against field filtering samples (especially those being analyzed for metals constituents) is without scientific basi s and should be eliminated. In fact, field filtering is a proven technique often used in conjunction with low flow sampling and regularly approved by EPA and state agencies in sampling plans for RCRA and Superfund sites, particularly in areas of

the countr y where low yielding formations or naturally high levels of turbidity in groundwater are encountered. To prohibit field filtering would potentially bias results artificially high, resulting in false indications of groundwater impacts when, in fact, none ma y have occurred

Response: EPA disagrees with the commenter’s assertion that a prohibition against field filtering groundwater samples is without scientific basis, and in is finalizing the prohibition in §257.93(b) as proposed. The primary objective of groundwater sampling is to determine the mobility of groundwater contaminants. Metal contaminants may move through fractured and porous media not only as dissolved species, but also as precipitated phases, polymeric species, or adsorbed to particles of co lloidal dimensions (< 10 microns). For an assessment of mobility, all mobile species must be considered, including suspended or colloidal particles acting as

absorbents for contaminants. Filtration of groundwater samples for metals analyses will not

prov ide accurate information concerning the mobility of metal contaminants because some mobile species in solution are likely to be removed by filtration before chemical analysis. Significant underestimations of mobility may result if filters (typically 0.45 micron) are used to separate dissolved and particulate phases. This approach with no filtration means that increased importance is placed on proper well construction and purging sampling procedures to eliminate or minimize sources of sampling artifacts. There should be nothing in the well design that will lead to high levels of turbidity. Groundwater sampling should be conducted utilizing EPA protocol low stress (low

- flow) purging and sampling methodology, including measurement106

and stabilization of key i ndicator parameters prior to sampling. For purposes of sampling this final rule presumes that a properly constructed well is capable of yielding groundwater samples with low turbidity (≤5 NTU), and by knowing the cause of turbidity PEs are able to optimiz e well performance and reduce turbidity levels, eliminating the need for filtration.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 34 

### Organization: Maryland Department of the Environment (MDE)


### Commenter : Shari T. Wilson Commenter Type: State Government

Comment Excerpt Text: Proposed Regulation 40 CFR 257.93(i)(2) : This proposed regulation provides that an operator must perform statistical analyses on the groundwater monitoring sampling results to determine if

there has been a release from the monitored f acility. However, the regulation that specifies when this must occur is very vague, and potentially unenforceable. Specifically, 40 CFR 257.93(i)(2) specifies: “Within a reasonable period of time after completing sampling and analysis, the owner

or operato r of the CCR landfill or surface impoundment must determine whether there has been a statistically significant increase over background at each monitoring well.” It is recommended that a determinable and enforceable time requirement e.g., 90 days, be inser ted in place of “a reasonable period”.

Response : EPA is revising § 257.93(i)(2) to specify a time period of 90 days to determine if a statistically significant increase over background concentrations of one of more of the

contaminants has been detected. Commenters pointed out that this section of the regulation was very vague, and potentially unenforceable. Several commenters suggested that once sampling and analysis had been completed, 90 days would be a reasonable amount of time to complete the

stati stical analysis to determine whether an exceedance had occurred. No commenter suggested a longer period of time was necessary and that time frame is consistent with the Agency’s experience of the time frames necessary to complete such analyses. According ly, we have revised the provision to require the determination of a statistically significant increase to be made within 90 days of sampling and analysis.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 43 

### Organization: Ohio Environmental Protection Agency


### Commenter : Chris Korleski Commenter Type: State Government

Comment Excerpt Text: Rule as proposed Sec. 257.93(i)(2): Within a reasonable period of time after completing sampling and analysis, the owner or operator of the CCR landfill or surface impoundmen t must determine whether there has been a statistically significant increase over background at each monitoring well.

Ohio EPA recommends that the language “a reasonable period of time” be replaced with “75 days”. Ohio EPA has had the requirement to subm it all analytical and statistical data within 75107

days of sampling ground water at landfills disposing FGD sludge for over 19 years and has never had a problem with compliance. A specific time frame in the rule makes enforcement of the rule

much easier.

Response : EPA is revising § 257.93(i)(2) to specify a time period of 90 days to determine if a statistically significant increase over background concentrations of one of more of the contaminants has been detected. Commenters pointed out that this sectio n of the regulation was very vague, and potentially unenforceable. Several commenters suggested that once sampling and analysis had been completed, 90 days would be a reasonable amount of time to complete the statistical analysis to determine whether an e xceedance had occurred. No commenter suggested a longer period of time was necessary and that time frame is consistent with the Agency’s experience of the time frames necessary to complete such analyses. Accordingly, we have revised the provision to requ ire the determination of a statistically significant increase to be made within 90 days of sampling and analysis.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09282

- 15 

### Organization: North Carolina Department of Environment and Natural Resources


### Commenter : Dext er R. Matthews Commenter Type: State Government

Comment Excerpt Text: Statistical Analysis of the Groundwater:

The proposed regulations require statistical analysis to demonstrate real background concentrations and alternative potential contaminant sources.

Comment: Statistical analysis can be useful, but many data points are needed for a valid statistical analys is on environmental data. It could take years to cross the minimum required data threshold; therefore, statistical analysis may not be an appropriate tool by itself given the extended time period needed for it to function properly.

An alternative to the use of statistical analysis should be allowed. The EPA should require that an exceedance of established groundwater standards trigger the groundwater assessment and corrective action requirements.

Response: The Agency is not allowing an alternative to th e use of statistical analysis, and in particular does not agree with the commenters suggested alternative. The determination of exceedances is based on statistics because to require corrective action based on one exceedance of the groundwater protection s tandard would not take into account the variation of the groundwater quality over time or the many possible errors that can occur in sampling and analysis. The length of time needed for detection monitoring and assessment monitoring as specified in the ru le are not excessive. The time expected to go from assessment monitoring to corrective action when a statistically significant increase is noted is not an unreasonable ‘extended time period’ to delay a corrective action. (i.e., two sampling events within three months of each other). On the other hand, if the statistically significant increase is not demonstrated in subsequent sampling events, this may reflect natural conditions (e.g.,108

precipitation seasonality or natural attenuation), which would hardly ju stify resorting to

corrective action

.

Section 4.4.7.7.1

- EPA requests comment on whether lack of state regulatory oversight mechanism will impair selection of appropriate test methodologies (35206)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 13 

### Organization: We Energies


### Commenter : Art Covi Commenter Type: Electric Utility Company

Comment Excerpt Text: COMMENT: It is important that statistical programs continue to be proposed by the facilities professional staff, because they are in a better posi tion to understand site hydrogeology and background groundwater quality than USEPA. For example, the facilities staff will understand whether background conditions optimally support an inter

- well or intra

- well approach, and are in better position to determ ine whether or not seasonal effects need to be considered in selecting a statistical approach. We would not be opposed to EPA development of a list of alternatives for statistical test methodologies, whether this consists of tests in the March 2009 Unified Guidance (EPA 530

- R

- 09

- 007), a subset of tests from that document, or another methodology as long as it allows for the flexibility needed to analyze data under a large variety of site conditions. States such as Wisconsin and Michigan, which already have p rograms in place to safely and efficiently regulate CCRs, should not be penalized due to the potential that a handful of states may not adequately regulate CCRs. EPA needs to pursue other options to get these states to adopt programs consistent with Subtit le D and let the states that already have such programs continue

their successes.

Response : The Agency agrees with the comment and, in fact, today’s final rule does allow for flexibility with regard to the selection of an appropriate statistical approach. Specifically, § 257.93(f)(5) states that another statistical test method that meets the specified performance standards may be used so long as the owner or operator places a justification for the alternative in the operating record and on the internet site and notifies the State Director of the use of the alternative test at least 60 days prior to its use. EPA has previously provided guidance on determining the appropriate statistical approach, which would be equally valid in this context:

“Unified Gu idance Document: Statistical Analysis of Groundwater Monitoring Data at RCRA Facilities”, March 2009, EPA 530/R

- 09

- 007 for more information.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 145 

### Organization: Kentucky Department for Environmental Protection


### C ommenter : R. Bruce Scott Commenter Type: State Government

Comment Excerpt Text: Kentucky would only support a variance or alternate design to normal statistical procedure if109

prescriptive Subtitle D regulations are in place at the state level.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 15 

### Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mi ssissippi Power Company


### Commenter : Chris M. Hobson Commenter Type: Electric Utility Company

Comment Excerpt Text: State rather than federal approval of site

- specific test methodologies is appropriate. [Footnote 53: Id. at 35206.]

EPA has recognized the need to maintain an adaptable data analysis approach under RCRA Subtitles C and D. When establishing the number and quality of groundwater monitoring data points, it is necessary to consider how to respond to or account for insufficient data and “non

detec t” data; possible outliers; variability and uncertainty with respect to background values; seasonality in data; possible nonnormality of data sets, and other data set attributes (e.g., variance); unclear and/or variable groundwater flow direction; and chem ical analysis sample matrix effects, such as the type of water and high concentrations of “masking” ions. EPA has already acknowledged and addressed a number of these challenges. [Footnote 54: See OFFICE OF RESOURCE CONSERVATION AND RECOVERY, U.S. ENVIRONM ENTAL PROTECTION AGENCY, STATISTICAL ANALYSIS OF GROUNDWATER MONITORING DATA AT RCRA FACILITIES, UNIFIED GUIDANCE 2

- 6

– 2

- 13; 5

- 1

– 5

- 15 (2009).] EPA’s Unified Guidance, which reflects 20 years of EPA study and evaluation of all aspects of statistical testing as applied to groundwater, supports the use of a flexible and adaptable approach with respect to data analysis.

EPA has expressed concern over state approval of alternate test methods on the grounds that states “may choose not to create a regulatory over sight mechanism” to implement Subtitle D standards for CCB facilities. [Footnote 55: 75 Fed. Reg. 35182, 35206 (June 21, 2010).] Such a concern is unwarranted and, in any event, baseless speculation lacking support in the rulemaking record. The vast majori ty of states have developed and sought approval for state programs in response to EPA’s issuance of federal Subtitle D standards. EPA’s expression of concern that the usual pattern would not apply with respect to CCB facilities is puzzling and contrary to the history of Subtitle D implementation. Even if one or more states chose not to implement a Subtitle D program for CCBs, that fact would not justify EPA’s usurping decision

- making authority with respect to alternate test methods from those states with EP A

- approved programs.

Response: The sections of RCRA that are applicable to CCRs

– sections 1008(a), 4004(a), and 4005(a) only authorize the Agency to establish minimum national criteria with which facilities must comply. EPA’s regulation does not preclude a state from incorporating the regulatory provisions being finalized today into state law and implementing and enforcing a single set of requirements. Nor does the regulation require the state to enforce the federal requirements, the

decision to b ring an action under 7002 lies entirely within the state’s discretion.110

We are not able to require states to develop programs or approve elements of a federal program. While states may have programs for the regulation of CCRs, which in some cases may be more stringent than today’s final rule, the federal program must be written as though states do not have a CCR disposal program in place. Because this rule is self

- implementing and there is no regulatory entity available to judge the reasonableness of the desired alternatives, EPA has determined that it is not able to allow alternatives in most cases, and instead is establishing minimum technical criteria for these units. Since the states can be more stringent, they can require additional monitoring wells, additional aquifers be monitored and additional parameters be added to the detection monitoring list or the assessment monitoring list, for example. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for prom ulgating 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

- 2009

- 0640

- 06410

- 61


### Commenter : Anonymous Commenter Type: Anonymous

Comment Excerpt Text: An oversight mechanism is to require facilities to write sampling and analysis plans with quality assurance project plans. These two plans would have to meet requirements already established in EPA’s Field Branches Quality System and Technical Procedures. Specific sampling and analysis methodologies are outlined in those procedures to guide sample collection. Analytical parame ters are also defined in these procedures.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 62 

### Organization: Wisconsin Department of Natural Resources (WI DNR) and Public Service

Commission of Wisconsin (WI PSC)


### Commenter : Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government

Comment Excerpt Text: We have similar concerns with the proposed requirements for groundwater assessment monitoring. The list of parameters ma y be suitable in general terms, but there should be flexibility for State agencies to require use of other parameters if site

- specific waste characterization indicates that parameters not on the proposed list would be useful for defining contamination patt erns caused by the waste. As with previous comments, we believe that States that have effective groundwater monitoring authority and rules and that have a demonstrable history of collecting and archiving groundwater monitoring data should be allowed to rev iew proposals for alternative assessment monitoring parameters.

Response: EPA generally agrees that it would be ideal to establish a monitoring program111

specifically tailored to account for individual site conditions. However, as noted previously, due

t o the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. E PA is only authorized to establish minimum national standards under sections 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– t hat there be “no reasonable probability of adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are

more sensitive and th ose that are less sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to prote ct human health and the environment across the country. EPA accomplished this through a combination of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. For example, the detection monitoring parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those parameters that are regularly monitored in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicat e whether constituents are leaking from the unit. The assessment monitoring list, which includes a larger number of constituents, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a more extensive monitoring program, the performance standards in §§ 257.91 and 257.93 would in fact require the facility to install one.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 50 

### Organization: NiSource Corporate Services


### Commenter : Dale A. Helmers Commenter Type: Electric Utility Company

Comment Excerpt Text: Groundwater Protection Standard (40 C.F.R. § 257.95(g) and (h))

State promulgated groundwater standards or cleanup levels should be specifically identified as an applicable groundwater protection standard. These standards are designed to be protective of human health and the environment and therefore should be available when determining the applicable groundwater protection standard.

Response: Due to the fact that EPA cannot require states to develop a per mitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only

authorized to establish minimum national standa rds under sections 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the112

country

– both those that are more sensitive and those that are less sensitive. While it is theoretically po ssible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human health and the environment across the country. E PA accomplished this through a combination of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of specific technical parameters to ensure that the performan ce standard will in fact be met. The groundwater protection standard will be the MCL or the background level, whichever is higher.

Section 4.4.7.7.2

- EPA is interested in suggestions about whether it should instead adopt alternative approaches for test methodologies to ensure protection of HHE at CCR disposal facilities (35206)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06723

- 25 

### Organization: West Virginia Department of Environmental Protection (WVDEP)


### Commenter : Gary Casto on behalf of Randy C. Huffman Commenter Type: State Government

Comment Excerpt Text:

Section 257.93

- Total metals concentrations are affected by the presence of suspended solids. Therefore, dissolved metals concentrations should instead be analyzed as they are more

representa tive of actual aquifer conditions.

Response: EPA has chosen to finalize as proposed the prohibition in § 257.93(b) on field filtering groundwater samples because filtration of samples for metals analyses will not provide accurate information concerning the mobility of metals contaminants, the prima ry objective of groundwater sampling. Metal contaminants may move through fractured and porous media not only as dissolved species, but also as precipitated phases, polymeric species, or adsorbed to particles of colloidal dimensions (< 10 microns). For a n assessment of mobility, all mobile species must be considered, including suspended or colloidal particles acting as absorbents for contaminants. Filtration of groundwater samples for metals analyses will not provide accurate information concerning the m obility of metal contaminants because some mobile species in solution are likely to be removed by filtration before chemical analysis. Significant underestimations of mobility may result if filters (typically 0.45 micron) are used to separate

dissolved an d particulate phases.

In its approach to sampling EPA is specifying in the final rule that owners and operators use ‘total recoverable metals’ concentrations in measuring groundwater quality. Measurement of total recoverable metals captures both the p articulate fraction and dissolved fraction of metals in

natural waters. Exceedances of ambient water criteria on a total recoverable basis are an indication that metal loadings could be a stress to an ecosystem.113

One commenter argued that to prohibit fie ld filtering would potentially bias the results artificially high, particularly at sites where low yielding formations or naturally high levels of turbidity in groundwater are encountered. However, high turbidity can also be the consequence of faulty well design and/or construction, which causes the introduction of foreign materials (high turbidity) through created fracture pathways. A properly designed well should allow for sufficient groundwater flow for sampling, minimize the passage of materials into the well, and exhibit sufficient structural integrity to prevent collapse of the intake structure. It is vital that the well provide a representative hydraulic connection to the geologic formation of interest. Otherwise the water chemistry information ca nnot be correctly interpreted in relation to groundwater flow or transport of chemical constituents.

Sampling with no filtration means that increased importance is placed on proper well construction and purging sampling procedures to eliminate or minimize sources of sampling artifacts. There should be nothing in the well design that will lead to high levels of turbidity. Groundwater sampling should be conducted utilizing EPA protocol low stress (low

- flow) purging and sampling methodology, including measu rement and stabilization of key indicator parameters prior to sampling. For purposes of sampling this final rule presumes that a properly constructed well is capable of yielding groundwater samples with low turbidity (≤5 NTU), and by knowing the cause of turbidity PEs are able to optimize well performance and reduce turbidity levels, eliminating the need for filtration.

Section 4.4.7.8

- Detection monitoring program (35206

- 35207)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 61 

### Organization: Earthjustice et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text: There is an alternative regulatory approach that is not discussed in the Federal Register notice: to skip the detection monitoring phase at coal combustion waste disposal sites and require assessment monitoring from the beginning, even before leakage has been detected. This is an approach that should have been considered. By not evaluating this alternative, EPA implicitly makes a policy judgment similar to the one it made w hen it established the Subtitle C monitoring program for hazardous waste treatment, storage, and disposal sites in 1980

— that the degree of environmental protection that would be provided by assessment monitoring at all sites is not

worth the economic cos t. The circumstances here are different from those EPA considered in 1980 because: (1) due to the lesser number of monitoring parameters, skipping detection monitoring would be more economically feasible for coal combustion sites, and (2) the purpose

of de tection monitoring is to tell whether any water is leaking out of a disposal unit that is designed to have an impermeable liner, but the less stringent liner requirements proposed for coal combustion waste landfills imply that a degree of leakage is expect ed and allowed. EPA should explicitly evaluate whether to bypass the detection monitoring phase at coal combustion114

waste sites.

Response: The commenter incorrectly characterizes the Agency’s decision as one that balances

environmental and human health co nsiderations against economic costs. This was not the basis for EPA’s decisions under either subtitle C or this rulemaking, where EPA is not authorized to take costs into account in determining the appropriate regulatory requirements. EPA disagrees that requiring facilities to conduct only “assessment monitoring” with a more

extensive list of contaminants would result in earlier detection of contamination or otherwise provide any greater degree environmental protection. Contrary to the commenter’s

charac terization, the purpose of detection monitoring is to provide for early detection of whether contaminants are migrating from the CCR disposal unit. EPA selected contaminants for the detection monitoring phase that are present in CCRs and would move rapidly through the subsurface, such as boron and sulfate. By requiring monitoring of these key parameters, including pH, TDS, fluoride and chloride, which are long proven as precursor contaminants to higher toxicity CCR contaminants, leakage from CCR disposal u nits will be caught in a timely manner. In other words, these are the contaminants that would be expected to be detected earliest in any monitoring program. Because detection of any of these “early warning” contaminants triggers a switch to assessment mo nitoring involving a more comprehensive list of contaminants, (including a variety of metals, anions, and radioactivity sources, selected on the merits of constituting primary or secondary MCLs and/or their prevalence in documented damage cases), it is unl ikely that “skipping” detection monitoring would provide any quicker detection of leakage from the unit.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06819

- 26 

### Organization: Missouri Department of Natural Resources


### Commenter : Robert Stout on behalf of Dru Buntin Commenter Type: State Government

Comment Excerpt Text: Page 35248, Section 257.94 (d) Federal Register/ Vol. 75, No.118/ Monday June 21, 2010/ Proposed Rules.

The proposed version does not include a time frame for determining a statistically sign ificant increase. Recommend that within 90 days of the sampling event that this determination be made.

Response : EPA is revising § 257.93(i)(2) to specify a time period of 90 days to determine if a statistically significant increase over background conce ntrations of one of more of the contaminants has been detected. Commenters pointed out that this section of the regulation was very vague, and potentially unenforceable. Several commenters suggested that once sampling and analysis had been completed, 90 days would be a reasonable amount of time to complete the statistical analysis to determine whether an exceedance had occurred. No commenter suggested a longer period of time was necessary and that time frame is consistent with the Agency’s experience of the time frames necessary to complete such analyses. Accordingly, we have revised the provision to require the determination of a statistically significant increase to be made within 90 days of sampling and analysis.115



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06819

- 30 

### Organization: Missouri Department of Natural Resources


### Commenter : Robert Stout on behalf of Dru Buntin Commenter Type: State Government

Comment Excerpt Text: Due to the lack of anthropogenic compounds in CCRs and in the resu ltant leachate, the determination of true landfill impact via the presence of statistically significant increases becomes more complicated. Missouri strongly recommends that language be added to proposed section §257.94 to allow for verification resampling for all initial statistically significant increase and that the timeframe for submittal of a demonstration as per §257.94(3) be subject to state modification. The importance of state flexibility with regards to issues related to proposed §257.91

- §257.98 c annot be overstated. In our experience conducting ongoing reviews of Subtitle D type groundwater monitoring data for 40 facilities within the State of Missouri, fluctuations in inorganic constituent concentrations, due to seasonal, temporal or spatial vari ability, not to mention well installation effects and sampling induced biases, makes absolute determination of facility impacts difficult based on statistical evaluation alone.

Even with adequate background sample size and confirmation resampling, the po tential for false positives is great given the number of samples collected and potential sources of error (see Robert D. Gibbons Statistical Methods for Groundwater Monitoring 1994 and Unified Guidance

EPA 530

- R

- 09

- 007). We do not feel, based upon the sign ificance given to statistical comparisons to background data and the economic ramifications for the determination of even a single SSI, that there is compelling reasons to deny approved state programs flexibility in these areas.

As stated above, a lack o f chemical constituents that can be exclusively attributed to the waste containment unit (organics) makes the process of alternate source demonstration as provided in §257.94 more time consuming and complex. We have not found that current timeframes

contai ned within MSWLF §258.54 or §258.55 are reasonable.

Response : The Agency recognizes that in some circumstances it could take more than 90 days to resample and have laboratories conduct new analyses, or to conduct field investigations to

determine that anot her source is causing the contamination. As a result, § 257.94(e)(3) does not place an ultimate time limit for owners and operators to complete the demonstration. However, if after 90 days the owner or operator has not made a successful demonstration, ( s) he must begin an assessment monitoring program. At this stage, there is evidence to indicate that a release has occurred from the CCR unit, and while EPA agrees that the facility may want to confirm that the information is accurate, it is critical that the facility not delay indefinitely the more targeted monitoring to determine whether a constituent of concern is contaminating groundwater. It would not be consistent with the statutory standard to allow a facility unlimited time to delay taking reasona ble steps to assess, and if necessary, address potential contamination by continuing to resample until they obtain a “better” answer. Moreover, initiation of an assessment monitoring program does not involve an irretrievable commitment of resources or e ven a significant investment by the facility, but only requires the facility to begin more targeted sampling for constituents of concern. This represents a reasonable first step to address a potential threat to ground water.116

Regarding the request for states allowing more flexibility, due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the

site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only authorized to establish minimum national standards under sections 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum require ments that are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of adverse effects on health or the

environment” nationwide.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08840

- 16 

### Organization: Electric Power Generation Association


### Commenter : Douglas L. Biden Commenter Type: Trade Association :

Comment Excerpt Text: Restrictive Groundwater Monitoring Parameters

EPGA agrees with the Agency that the requirement for groundwater monitoring, both at existing and proposed new disposal facilities is justified, and we support the development of such groundwater monitoring standards under this rulemaking for the RCRA Subtitle D option. However, we believe that EPA should provide a mechanism in the proposed rules that would

allow for an alternative list of parameters where appropriate. We understand that one reason the Agency has not provided for this allowance is due to " ... the absence of a state oversight mechanism in place to ensure such modifications are technically appropria te, such a provision may operate at the expense of protectiveness." 75 Fed. Reg. at 35205. As EPGA has suggested previously, by applying sections 4010(c) and 4005(c) of RCRA to this rulemaking, EPA could provide for administration of this program through a pproved state permitting authority. This would provide the state oversight that EPA has noted is lacking in the proposed rules without application of those sections of RCRA.

As EPA has noted on a number of occasions, site

- specific factors are critical for establishing design parameters for facilities. In the same way, these site

- specific factors should be allowed to influence the groundwater monitoring parameters that will most effectively detect releases from a facility. Thus, the authorizing state should have the flexibility to alter the parameter list to meet those localized influences. Where a state program has not been approved by EPA, then the registered professional engineer or hydrologist should have that same flexibility to tailor and certify the d etection and assessment parameters to those site

- specific influences.

Response: EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions. However, as noted previously, due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWL Fs. EPA is only authorized to establish minimum national standards under sections 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are117

necessary to meet the standard in RCRA 4004(a )

– that there be “no reasonable probability of adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are

more sensitive a nd those that are less sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human health and the environment across the country. EPA accomplished this through a combination of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a serie s of specific technical parameters to ensure that the performance standard will in fact be met. For example, the detection monitoring parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those parameters that are regularly monitored in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will in dicate whether constituents are leaking from the unit. The assessment monitoring list, which includes a larger number of constituents, is based on what is expected in CCR wastes. However, to the

extent that site conditions warrant a more extensive monito ring program, the performance standards in §§257.91 and 257.93 would in fact require the facility to install one.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 72 

### Organization: Prairie State Generating Company, LLC (PSGC)


### Commenter : Keith Bastian Commenter Type: Electric Utility Company

Comment Excerpt Text: Groundwater Monitoring/Detection/Assessment/Corrective Action (40 C.F.R. §§ 257.90 through 98) Consistent with the municipal landfill regulations (Sections 257.21, 258.50, 258.54, and 257.24(a », Subtitle D should allow for alternatives to the various compliance requirements contained in Sections 257.90 through 257.98. These include, but are not limited to, allowing for (a) the suspension of groundwater monitoring, (b) alternative schedules for groundwater monitoring, (c) alternative schedules for corrective action, and (d) the deletion of monitoring parameters. Providing for alternatives allows facilities to take site specific conditions into account and properly considers the actual risks assoc iated with each unit. Providing for alternatives allows facilities to take site specific conditions into account and properly considers the actual risks associated with each unit and would be consistent with how EPA regulates

similar waste streams.

Respon se: EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions. However, as noted previously, due to the fact that EPA cannot require states to develop a permitting progra m for this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only authorized to

establish minimum national standards under sect ions 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are118

necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of

adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are more sensitive and those that are less sensitive. While it is theoretically possible that th is may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human health and the environment across the country. EPA accomplishe d this through a combination of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard wi ll in fact be met. For example, the detection monitoring parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those parameters that are regularly monitored in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate whether constituents are leaking from the unit. The assessment monito ring list, which includes a larger number of constituents, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a more extensive monitoring program, the performance standards in §§ 257.91 and 257.93 would in fact require the facility to install one.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09536

- 8 

### Organization: Tennessee Valley Authority


### Commenter : John W. Myers Commenter Type: Electric Utility Company

Comment Excerpt Text: TVA supports appropriate groundwater monitoring standards for CCR surface impoundments and landfills, and we support the development of such standards under a RCRA Subtitle D framework. Sites are generally modeled after the groundwater monitoring programs for Municipal Solid Waste Landfills (MSWLFs) and for non

- MSWLFs that may receive wastes from conditionally exempt small quantity generators. Site

- specific factors are critical for establishing constituents and corresponding concentrations for detection and assessment monitoring. The availability of regulatory approval for changes in prescribed monitoring parameters and changes in sampling frequencies based on actual conditions in the field is essential to efficient operation and care of waste disposal facil ities.

Flexibility in selecting the monitored constituents is needed for targeted focus on the constituents historically associated with the site specific ash rather than constituents naturally occurring in the site's surrounding and underlying geology. Given the extreme range of natural variations in site geology and groundwater at CCR disposal units across the country and within a region, it will often be necessary for technical experts to adjust the specific groundwater monitoring standards

that EPA es tablishes to account for various site

- specific conditions and factors.

The initial list of indicator parameters proposed by EPA generally focuses on the mobile indicator parameters in leachate from CCR disposal units [75 Fed. Reg. at 35253, proposed Appe ndix III to Part 257.]. The potential for false positives would increase significantly if the parameter list was burdened with a host of trace constituents that are much less mobile and are119

unlikely to be present in CCR leachate without the presence of the proposed indicator parameters. That being said, however, TVA believes that the proposed indicator parameter list should be revised to more closely track the nature of materials that are disposed of in CCR surface impoundments and landfills. Several propos ed detection monitoring constituents

- conductivity, fluoride, and sulfide

- are unlikely to assist in efforts to determine whether CCR disposal units have released constituents into groundwater. Alternatives to prescriptive monitoring parameters should be a llowed if validated performance standards demonstrate more effective protection of human health and the environment.

We suggest that EPA limit the list of assessment monitoring constituents to the primary drinking

water constituents for which a maximum c ontaminant level has been established. These primary constituents are the only materials EPA has found contribute to adverse health effects; no other

listed constituents have been linked to health effects.

Because geology plays such a dominate factor in the fate and transport of pollutants, flexibility to declare remedial measures complete prior to the full three year set period on a site specific basis is reasonable. Technology improvements in sampling equipment and groundwater modeling

allow for better prediction and validation of results, supporting this approach.

Response: Due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are allowed in other EPA programs, such as under the regulatory program for MSWLFs. The Agency does not believe allowing alternate groundwater monitoring programs, such as those allowing only a subset of constituents be monitored, would be workable in the context of a self

- implementing rule, because there is no regulatory entity to judge the reasonableness of the desired alternatives. The requirements of the groundwater monitoring program in this rule allow as much flexibility as we believe we can accommodate, given the lack of oversight by a permitting authority, and

the need to demonstr ate that the rule provisions will achieve section 4004(a)’s statutory standard.

EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions. However, as noted previously, d ue to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLF s. EPA is only authorized to establish minimum national standards under sections 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are

more sensitive an d those that are less sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to p rotect human health and the environment across the country. EPA accomplished this through a combination of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. For example, the detection monitoring parameters120

are limited in number and are designed to be protective and adequate to determine if constituents are leaking f

rom CCRs and out of the unit. The detection monitoring parameters are those parameters that are regularly monitored in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will ind icate whether constituents are leaking from the unit. The assessment monitoring list, which includes a larger number of constituents, is based on what is expected in CCR wastes. However, to the

extent that site conditions warrant a more extensive monitor ing program, the performance standards in §§ 257.91 and 257.93 would in fact require the facility to install one.

The Agency has determined that the appropriate parameters to include in the detection monitoring list (Appendix III) are: boron, calcium, ch loride, fluoride, pH, sulfate and TDS. The purpose of detection monitoring is to provide for early detection of whether contaminants are migrating from the CCR disposal unit. EPA selected contaminants for the detection monitoring phase that are present in CCRs and would move rapidly through the subsurface, such as boron and sulfate. By requiring monitoring of these key parameters, including pH, TDS, fluoride and chloride, which are long proven as precursor contaminants to higher toxicity CCR contaminants, leakage from CCR disposal units will be caught in a timely manner. In other words, these are the contaminants that would be expected to be detected earliest in any monitoring program.

The Agency disagrees that fluoride should be removed from the detecti on monitoring list

. Specifically, fluoride will be retained in the detection monitoring list because it is part of the inherent halogen content of coal that is released during the combustion of coal to form acids as the flue gas cools. It is then captured in FGD scrubbers and, based on the concentration of fluoride present in coal, it will is likely be present in CCR wastewaters at high enough concentrations to have the potential to leach from the CCRs. As the number of mandatorily

installed scrubbers has been steeply increasing in the last decade, fluoride, a primary MCL, needs to be monitored as part of the detection monitoring program as an early indication of potential groundwater contamination. The Agency has deleted conductivity from the detection

mo nitoring program because it is merely a proxy for TDS, which is included on the list of parameters to analyze during detection monitoring. The Agency has also deleted sulfide because it occurs in groundwater only under strongly reducing conditions, and suc h conditions are rather rare at CCR disposal facilities. Once a facility enters into assessment monitoring, the detection monitoring parameters will continue to be monitored.

Regarding the comment suggesting only those constituents with MCLs be present on Appendix IV, the constituents on Appendix IV in today’s rule all have MCLs with the exceptions of cobalt, lithium and molybdenum. Molybdenum has also been found in a number of proven and potential damage cases and is important from a risk screening per spective. In the risk assessment, cobalt was found to be a risk driver for certain disposal practices (acidic wastes), so it is being added to Appendix IV. Lithium is being added to Appendix IV because it has been detected in several proven and potential damage cases at levels exceeding EPA’s Regional Screening Level (RSL) of soil to groundwater and has been determined as potentially toxic if consumed conc urrently with certain drug types. 4

4 http://www.epa.gov/reg3hwmd/risk/human/rb

- concentration_table/Gen eric_Tables/index.htm ; and
Health Consultation: Chesapeake ATGAS 2H Well Site Leroy Hill Road, Leroy, Leroy Township, Bradford121

Regarding the comment that facilities should be able to declare the remedy complete before three years of demonstration, the Agency is not swayed by the comment and believes, in the absence of guaranteed state oversight for all facilities, three years is a reasonable timeframe.

Section 4.4.7.8.1

- EPA solicits comment on appropriateness of proposed list of parameters to detect GW contamination and/or as indicators of GW contamination (35206)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 14 

### Organization: We Energies


### Commenter : Art Covi Commenter Type: Electric Utility Company

Comment Excerpt Text: COMMENT: We generally agree with the proposed list.

Boron is well

- document as a mobile indicator constituent for CCP leachate, and there are few alternative sources of boron to the environment (see EPRI re port 1005258, “Chemical Constituents in Coal Combustion Leachate: Boron”). Given its constant presence in CCP leachate and its high mobility in groundwater, boron (with sulfate) should be considered a primary indicator constituent for detection groundwater monitoring at CCP facilities.

Electrical conductivity and pH are two valuable and commonly measured field parameters.

Sulfate is not attenuated in groundwater except under strongly reducing conditions, and typically

has elevated concentration in CCP l eachate (see EPRI report 1012578, “Characterization of Field Leachates at Coal Combustion Management Sites”). While there are alternative sources of sulfate that can be found in the environment, it is a key indicator constituent for CCP facilities

when com bined with boron data.

Sulfide can be useful in strongly reducing environments; however, such environments are unusual, therefore we recommend an option to discontinue monitoring for this constituent if it has a low concentration in groundwater relative to sulfate.

Chloride is not attenuated in groundwater. It usually has relatively low concentration in coal ash leachate, but can have high concentration in leachate from certain types of flue gas

County, Pennsylvania, October 29, 2013. U.S. Department of Health and Human Services, Agency for

Toxic Substances and Disease Re gistry Division of Community Health Investigations Atlanta, Georgia.
www.atsdr.cdc.gov122

desulfurization systems (see EPRI report 1012578, “Charact erization of Field Leachates at Coal Combustion Management Sites”). Furthermore, chloride is a common anthropogenic contaminant, particularly in northern climates where chloride

- containing road salts can have a significant impact on concentrations in groun dwater. For example, the box

- whisker plot below shows boron, chloride, and sulfate concentrations in groundwater from a background well at We Energies’ ash landfill. Boron and sulfate concentrations are low in this background well, while

chloride concentra tions are sometimes higher than the SMCL. This well is near a major four

- lane highway where road salt containing chloride is applied during the winter. For these reasons, We Energies recommends that chloride be on the base list of constituents to monitor; however, there should be an option to discontinue monitoring if it is not present at significant concentrations in the leachate. [See original comment for tables]

We do not believe that fluoride will be a useful constituent for groundwater monitoring. The box whisker plots below show all fluoride monitoring results from We Energies leachate monitoring points through August 2010, and in all cases fluoride concentrations are considerably lower than the MCL, and in most cases considerably lower than the SMCL.

Total dissolved solids can be a useful indicator parameter for assessing changes in overall groundwater quality; however, because it reflects major constituents in groundwater and not minor constituents, specifically boron, it needs to be used in conjunc tion with the other constituents in this list to evaluate groundwater quality at CCP management facilities.

Response: The Agency has determined that the appropriate parameters to include in the detection monitoring list (Appendix III) are: boron, calciu m, chloride, fluoride, pH, sulfate and TDS. The purpose of detection monitoring is to provide for early detection of whether contaminants are migrating from the CCR disposal unit. EPA selected contaminants for the detection monitoring phase that are prese nt in CCRs and would move rapidly through the subsurface, such as boron and sulfate. By requiring monitoring of these key parameters, including pH, TDS, fluoride and chloride, which are long proven as precursor contaminants to higher toxicity CCR contamin ants, leakage from CCR disposal units will be caught in a timely manner. In other words, these are the contaminants that would be expected to be detected earliest in any monitoring program.

The Agency disagrees that fluoride should be removed from the de tection monitoring list

. Specifically, fluoride will be retained in the detection monitoring list because it is part of the inherent halogen content of coal that is released during the combustion of coal to form acids as the flue gas cools. It is then cap tured in FGD scrubbers and, based on the concentration of fluoride present in coal, it will is likely be present in CCR wastewaters at high enough concentrations to have the potential to leach from the CCRs. As the number of mandatorily

installed scrubber s has been steeply increasing in the last decade, fluoride, a primary MCL, needs to be monitored as part of the detection monitoring program as an early indication of potential groundwater contamination. The Agency has deleted conductivity from the detecti on monitoring program because it is merely a proxy for TDS, which is included on the list of parameters to analyze during detection monitoring. The Agency has also deleted sulfide because it occurs in groundwater only under strongly reducing conditions, an d such conditions are rather123

rare at CCR disposal facilities. Once a facility enters into assessment monitoring, the detection monitoring parameters will continue to be monitored.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06252

- 15 

### Organization: Minnkota Power Cooperative, Inc. (Minnkota)


### Commenter : John T. Graves Commenter Type: Electric Utility Company

Comment Excerpt Text: EPA should allow for alternative groundwater monitoring parameters and should revise certain of the proposed parameters.

Response: EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions. However, as noted previously, due to the fact that EPA cannot require states to develop a permitting program f or this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only authorized to

establish minimum national standards under section s 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of

adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are more sensitive and those that are less sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human health and the environment across the country. EPA accomplished t his through a combination of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. For example, the detection monitoring parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those

pa rameters that are regularly monitored in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate whether constituents are leaking from the unit. The assessment monitorin g list, which includes a larger number of constituents, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a more extensive monitoring program, the performance standards in §§ 257.91 and 257.93 would in fact re quire the facility to install one.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06254

- 17 

### Organization: Sunflower Electric Power Corporation


### Commenter : Paul E. Reynolds Commenter Type: Electric Utility Company

Comment Excerpt Text: EPA should allow for alternative groundwater monitoring parameters and should revise certain124

of the proposed parameters.

Response: EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individ ual site conditions. However, as noted previously, due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA

pro grams, such as under the regulatory program for MSWLFs. EPA is only authorized to establish minimum national standards under sections 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements th at are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites acros s the country

– both those that are more sensitive and those that are less sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has bee n designed to in fact be “the minimum” necessary to protect human health and the environment across the country. EPA accomplished this through a combination of performance standards, which inherently provide flexibility in that it does not specify a singl e method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. For example, the detection monitoring parameters are limited in number and are designed to be protective an d adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those parameters that are regularly monitored in the field when any ground water monitoring is undertaken along with a few constitue nts (i.e., boron) that are found in CCRs and will indicate whether constituents are leaking from the unit. The assessment monitoring list, which includes a larger number of constituents, is based on what is expected in CCR wastes. However, to the

extent that site conditions warrant a more extensive monitoring program, the performance standards in §§ 257.91 and 257.93 would in fact require the facility to install one.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 146 

### Organization: Kentucky Department for E nvironmental Protection


### Commenter : R. Bruce Scott Commenter Type: State Government

Comment Excerpt Text: Kentucky would support a monitoring list that included a list of water quality indicator parameters and metals that may be concentrated in CCR waste.

Kentucky recommends that EPA allow the use of an alternate list of indicator parameters similar to the provisions for MSLFs under Parts 257 and 258. Provisions for a case by case adjustment of groundwater monitoring parameters are important in order to ac count for site

- specific variations in geology and groundwater conditions and other factors. Any final rule should allow deletion of any constituent if it can be shown that it is not reasonably expected to be in or derived

from the waste contained in the un it.

EPA's proposed indicator parameter list should be revised to more closely track the nature of the CCRs in question. Proposed detection monitoring constituents

- conductivity, fluoride, and125

sulfide

- are unlikely to assist in determining whether CCR un its have released constituents into the groundwater. In particular, the conductivity parameter may lead to false positives; there is no need for that parameter when the Total Dissolved Solids (TDS) parameter is a much more accurate test for the same type o f potential releases. Fluoride and sulfide are not good indicator parameters because they are not generally present in high concentrations in CCR leachate. In addition, carbonate and bicarbonate would yield little meaningful information on whether CCRs

hav e influenced groundwater.

Response: Regarding the use of an alternate list of monitoring parameters, EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions. However, as noted previously, due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many

of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regula tory program for MSWLFs. EPA is only authorized to establish minimum national standards under sections 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the st andard in RCRA 4004(a)

– that there be “no reasonable probability of adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are more sensitive and those that are less sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the m inimum” necessary to protect human health and the environment across the country. EPA accomplished this through a combination of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the

standar d, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. For example, the detection monitoring parameters are limited in number and are designed to be protective and adequate to determine if cons tituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those parameters that are regularly monitored in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are foun d in CCRs and will indicate whether constituents are leaking from the unit. The assessment monitoring list, which includes a larger number of constituents, is based on what is expected in CCR wastes. However, to the extent that site

conditions warrant a more extensive monitoring program, the performance standards in §§ 257.91 and 257.93 would in fact require the facility to install one.

The Agency has determined that the appropriate parameters to include in the detection monitoring list (Appendix III) are: boron, calcium, chloride, fluoride, pH, sulfate and TDS. The purpose of detection monitoring is to provide for early detection of whether contaminants are migrating from the CCR disposal unit. EPA selected contaminants for the detection monitoring

p hase that are present in CCRs and would move rapidly through the subsurface, such as boron and sulfate. By requiring monitoring of these key parameters, including pH, TDS, fluoride and chloride, which are long proven as precursor contaminants to higher to xicity CCR contaminants, leakage from CCR disposal units will be caught in a timely manner. In other words, these are the contaminants that would be expected to be detected earliest in any monitoring program.126

The Agency has deleted conductivity from the detection monitoring program because it is merely a proxy for TDS, which is already included on the list of parameters to analyze during detection monitoring. The Agency has also deleted sulfide because it occurs in groundwater only under strongly reducing conditions, and such conditions are rather rare at CCR disposal facilities. Fluoride will be retained in the detection monitoring list because it is part of the inherent halogen content of coal that is released during the combustion of coal to form acids as the flue gas cools. It is then captured in FGD scrubbers and, based on the concentration of fluoride present in coal, it will is likely be present in CCR wastewaters at high enough concentrations to have the potential to leach from the CCRs. As the num ber of mandatorily

- installed scrubbers has been steeply increasing in the last decade, fluoride, a primary MCL, needs to be monitored as part of the detection monitoring program as an early indication of potential groundwater contamination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 17 

### Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company


### Commenter : Chris M. Hobson Commenter Type: Electric Utility Company

Comment Excerpt Text: EPA should narrow and focus the list of detection monitoring parameters.

EPA has suggested the use of boron, chloride, conductivity, fluoride, pH, sulfate, sulfide, total dissolved solids (“TDS”), and a num ber of additional metallic parameters as indicators of groundwater contamination. [Footnote 59: See 75 Fed. Reg. at 35206

- 07.] This list, however, is over inclusive. Assuming early indication is the primary goal of detection monitoring, the use of boron, c hloride and sulfate is sufficient. According to a 2006 EPRI study, “[s]ulfate was the dominant anion in coal ash leachate samples,” and “[s]ilicon and boron had the highest median concentrations . . . in ash among the minor trace constituents.” [Footnote 6 0: EPRI,

CHARACTERIZATION OF FIELD LEACHATES AT COAL COMBUSTION PRODUCT MANAGEMENT SITES: ARSENIC, SELENIUM, CHROMIUM, AND MERCURY SPECIATION (2006), REF. NO. 1012578 [hereinafter “CHARACTERIZATION OF FIELD LEACHATES (2006)”] (included in these comments as Attachment 1).] Moreover, boron is an appropriate indicator because it has been traditionally regarded as a constituent that is not well

attenuated. [Footnote 61: See EPRI, CHEMICAL CONSTITUENTS IN COAL COMBUSTION PRODUCT LEACHATE: BORON, REF. NO. 1005258 (2005) (included in these comments as Attachment 2).] And EPRI recently illustrated through modeling that boron is not well

attenuated when compared to other oxyanion species in leachate and would therefore constitute a reliable early indicator parameter. [Footnote 62: EPRI, CD

- MUSIC REACTION DATABASE FOR MODELING ADSORPTION OF OXYANIONS FROM IRON OXYHDROXIDES, REF. NO. 1017921 (2009) (included in these comments as Attachment 3).]

Chloride, while not as indicative of CCB leachate as boron or sulfate, may be more useful for gypsum storage facility monitoring than for coal ash storage facility monitoring due to its relatively higher concentration in FGD gypsum leachate than coal ash leachate. [Footnote 63: CHARACTERIZATION OF FIELD LEACHATES (2006), supra n ote 60. ] Chloride concentrations can be highly variable depending upon the hydrogeologic setting. In some cases,127

the relatively low median concentrations of chloride in coal ash leachate (25 mg/L) may fall within the background chloride concentrations of a given environment, especially in coastal settings.

pH and conductivity will be measured on a routine basis during sample collection by the sampling technician, along with temperature, dissolved oxygen, oxidationreduction potential (“ORP”) and turbidity . Therefore, there is no need to add pH and conductivity to the detection monitoring list of parameters. These data are typically included in reports to the regulatory agency, regardless of the targeted list of detection monitoring parameters. These parame ters should certainly not be measured in any setting other than during well purging and sampling.

pH and conductivity are also poor indicators of CCB leachate, and should not be used to indicate a detection of leachate in groundwater. pH is a measure of h ydrogen ion activity in solution, and several processes in groundwater environments can change pH and conductivity. For example, installing a groundwater well into rocks containing sulfides can locally lower pH and increase conductivity due to sulfide oxid ation. Installing a protective liner system over a vast acreage can eliminate groundwater exposure to oxygen and facilitate anaerobic biological reactions such as sulfate reduction, often resulting in a localized rise in pH. Groundwater monitoring in coast al regions often reveals natural tidal influences that alter pH and conductivity. For these types of reasons, parameters such as pH and conductivity should not be included in a detection monitoring parameter list.

The reasoning for including fluoride as a detection monitoring parameter is unclear. It should be deleted from the detection monitoring parameter list.

Sulfide was included due to the possibility that sulfate leaching from CCBs could be transformed to sulfide in the subsurface, most likely thr ough a common biological reaction known as sulfate reduction. This process is known to occur in chemically “reducing” environments that are characteristically depleted in dissolved oxygen content and suitable for anaerobic biological activity. The need for sulfide measurement should be determined based upon readily available, more accurate indications of reducing conditions such as pH, oxidation

- reduction potential, and dissolved oxygen. Until there were an indication that sulfide would be present, its meas urement would introduce more complication than benefit.

EPA lists both TDS and total suspended solids (“TSS”) in the discussion of detection monitoring parameters. TDS is a measure of all dissolved salts in a water sample, whereas TSS is a measure

of all suspended, or filterable, solids in a water sample. TDS can be estimated through measurements of conductivity, and is therefore redundant with a field measurement that will be made during every sample event. TSS is not a suitable detection monitoring param eter because suspended solids do not migrate through subsurface environments at rates suitable for detection monitoring.

Trace metals occur naturally in groundwater, and their presence in groundwater will not necessarily indicate impact from CCBs. For ex ample, it is well

- documented that groundwater supplies in parts of the western United States contain naturally

- occurring arsenic concentrations higher than the EPA maximum contaminant level. Because they can occur naturally in128

groundwater at elevated conce ntrations, and the concentrations are often dependent upon the geologic setting, trace metals alone should not be considered indicators of impact from CCB

leachate.

In summary, boron, sulfate and chloride should adequately serve the purpose of detection monitoring at CCB facilities. Chloride may be of limited use at coal ash facilities, however, due to its relatively low concentrations in coal ash leachate. It may be more appropriate to include chloride at gypsum facilities

Response: The Agency agrees w ith the commenter that sulfate, boron, and chloride are appropriate parameters to include in the detection monitoring program for coal ash and/or FGD waste. However, we disagree with the comment that the detection monitoring program should be

limited to th ese three parameters. Specifically, fluoride will be retained in the detection monitoring list because it is part of the inherent halogen content of coal that is released during the combustion of coal to form acids as the flue gas cools. It is then captur ed in FGD scrubbers and, based on the concentration of fluoride present in coal, it will is likely be present in CCR wastewaters at high enough concentrations to have the potential to leach from the CCRs. As the number of mandatorily

- installed scrubbers h as been steeply increasing in the last decade, fluoride, a primary MCL, needs to be monitored as part of the detection monitoring program as an early indication of potential groundwater contamination.

The Agency has deleted conductivity from the detection monitoring program because it is merely a proxy for TDS, which is already included on the list of parameters to analyze during detection monitoring. The Agency has also deleted sulfide because it occur s in groundwater only under strongly reducing conditions, and such conditions are rather rare at CCR disposal facilities. With respect to TDS, it is also being retained as a detection

- monitoring parameter since it provides a check on the concentration l evels of some major alkaline and alkaline

- earth elements, some of which (i.e., sodium and magnesium) are scrubber

- captured contaminants or products of evaporative concentration in cooling ponds in facilities deploying closed

- loop cooling. Finally, pH is be ing retained in the detection monitoring phase since it predicts how mobile some of the CCR signature toxic metals would be were the leakage to continue. For instance, while the leaching of selenium is significant only under acidic conditions, the leaching of arsenic is

enhanced under both acidic and alkaline conditions. 5

5 Leaching of boron, arsenic and selenium from sedimentary rocks: II. pH dependence, speciation and

mechanisms of release. Carlito Baltazar Tabelin

, Ayaka Hashimoto

, Toshifumi Igarashi , and Tetsuro

Yoneda

, Science of The Total Environment

, Volumes 473

– 474 , 1 March 2014, Pages 244

– 253: http://www.sciencedirect.com/science/article/pii/S0048969713014836129



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 99 

### Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Com pany, and Mississippi Power Company


### Commenter : Chris M. Hobson

Comment Excerpt Text: [ATTACHMENT: Southern Company Attachment 1

-- Contact Docket Public Reading Room; also found on EPA's DVD#1 and attachment was loaded into CommentWorks: EPRI, CHARACTERIZATION OF

FIELD LEACHATES AT COAL COMBUSTION PRODUCT MANAGEMENT SITES: ARSENIC, SELENIUM, CHROMIUM, AND MERCURY SPECIATION, REF. NO. 1012578 (2006).]

[ATTACHMENT: Southern Company Attachment 2

-- Contact Docket Public Reading Room; also found on EPA's DVD#1 and attachment was loaded into CommentWorks: EPRI, CHEMICAL CONSTITUENTS IN COAL COMBUSTION PRODUCT LEACHATE: BORON, REF. No. 1005258 (2005).]

ATTACHMENT: Southern Company Attachment 3

-- Contact Docket Public Reading Room; also found on EPA's DVD#1 and attachment was loaded into CommentWorks: EPRI, CD

- MUSIC REACTION

DATABASE FOR MODELING ADSORPTION OF OXYANIONS FROM IRON OXYHDROXIDES, REF. No. 1017921 (2009).]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EP A

- HQ

- RCRA

- 2009

- 0640

- 06313

- 68 

### Organization: Earthjustice et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text: Use of detection monitoring parameters that are diagnostic for coal combustion wastes brings several advantages over a system that places exclusive reliance on general chemistry parameters that must be evaluated statistically. Application of statistical tests to the metal parameters is unnecessary and, indeed, often infeasible because non

- detects will be prevalent at

un contaminated sites. The cost, delay, administrative burden, and uncertainty associated with statistical analysis can then be avoided. The acceptance of a substantial percentage of false negatives, inherent in statistical significance tests, is also avoided

.

In addition, because the likely source of waste

- specific parameters is known, the burden of proof inherently shifts as soon as they are detected. This gives the site operator an incentive to identify other sources of contamination in advance. Operators of new sites are then more likely to undertake needed background monitoring on their own. Fortunately, the underlying factor that motivated the selection of nonhazardous general chemistry parameters for detection monitoring130

— the diversity of contaminants that may be present in hazardous and municipal waste landfills and the consequent high cost of analysis for all of them

— is absent when dealing with coal wastes. As discussed below, it is possible to select parameters that are diagnostic of coal wastes

an d also possess all the characteristics that are desirable in indicator parameters.

Detection monitoring parameters

Several properties are desirable in parameters measured for the purpose of detecting groundwater contamination at waste disposal sites:

• They should be commonly found in the groundwater of sites contaminated by the wastes in the disposal unit.

• They should be rarely found in the groundwater of other sites. Their presence should be diagnostic of the presence of coal combustion wastes.

• T hey should move at the same speed as groundwater, for early detection (be conservative, in the parlance of hydrogeologists).

• Chemical analysis should be rapid and reliable.

• Optimally, they should be parameters that are being compared to water quality standards. Standard violations are then less likely to be missed. Moreover, when leakage is detected by measuring something that exceeds a standard, the facility can move directly to corrective action without the expense, time delay, and potential for err or of assessment monitoring.

These objectives can easily come into conflict, and the conflicts have been particularly acute in the RCRA Subtitle C and D monitoring programs. The great diversity of wastes made it impossible to choose parameters that are di agnostic. Moreover, EPA accepted the objection that analysis for the many toxic chemicals potentially present in the wastes would be too expensive, and instead specified analysis of general indicators of groundwater chemistry. In a monitoring program speci fically designed for coal combustion wastes, however, all these objectives can be satisfied by including metals that are diagnostic of coal combustion waste among the detection monitoring parameters. The technical issues involved in the selection of parame ters are the same under either Subtitle C or Subtitle D options.[Footnote 5: The Federal Register notice is internally inconsistent 5 on this matter. In its discussion of Subtitle C monitoring, it states on p. 35181 that detection monitoring parameters at permitted sites “would be the metals typically identified as constituents of concern in CCRs.” Yet it proposes on p. 35206 that the detection monitoring parameters under Subtitle D would be boron, chloride, conductivity, fluoride, pH, sulfate, sulfide, and TDS.]

The statistical significance criterion faces an additional problem when applied to parameters that are diagnostic of particular waste streams. Statistical significance is hard to define for monitoring parameters that are often below detection limits at background. This is known as the problem of

“censored data.”

But reliance on statistics is unnecessary when using diagnostic parameters in detection131

monitoring. Because these parameters are rarely elevated in uncontaminated groundwater, it is

inherent ly probable that any exceedance of background levels represents migration from the disposal site. When an exceedance occurs, the burden of proof shifts to the operator to demonstrate that there is another source. Such a demonstration can only be made by id entifying the other source. The other source could be either natural, such as a particular rock formation that is high in arsenic, or anthropogenic. Unless the presumption that the disposal unit is the source is rebutted by identifying a specific backgroun d source, detection of a diagnostic parameter above background [Footnote 9: Analytical error is of course possible. But a questionable analysis is confirmed if any subsequent sample shows an exceedance.] causes the site to begin assessment monitoring or, i f contamination has been detected above water quality standards, go directly into

corrective action.

Response: The Agency acknowledges and appreciates the comment. This comment is regarding the timeframes for implanting a subtitle C rule. The commenter is referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA and Unit VI for a complete discussion of the technical requirements including groundwater monitoring.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 064 10

- 62


### Commenter : Anonymous Commenter Type: Anonymous

Comment: The parameter list should be based on third

- party reviews of existing data the appropriate of those analyzed parameters and if any additional parameters are needed.

Response: EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions. However, as noted previously, due to the fact that EPA cannot require states to develop a permitting program f or this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only authorized to

establish minimum national standards under section s 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of

adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are more sensitive and those that are less sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human health and the environment across the country. EPA accomplished t his through a combination of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. For example, the detection monitoring parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those

pa rameters that are regularly monitored in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate132

whether constituents are leaking from the unit. The assessment monitorin g list, which includes a larger number of constituents, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a more extensive monitoring program, the performance standards in §§ 257.91 and 257.93 would in fact re quire the facility to install one.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 60 

### Organization: Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC)


### Commenter : Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government

Comment Excerpt Text: Regarding the request on p. 35206

- 35207 of the preamble for comment on detection monitoring, Wisconsin rules include the use of field parameters pH, field conductivity, field temperature, and groundwater elevation, which we recommend be added to the proposed detection parameter list.

Response: These are common field parameters and the facility may choose to measure them or the state can require the facility to take these measurements. The A gency has determined that the appropriate parameters to include in the detection monitoring list (Appendix III) are: boron, calcium, chloride, fluoride, pH, sulfate and TDS. The purpose of detection monitoring is to provide for early detection of whether contaminants are migrating from the CCR disposal unit. EPA selected contaminants for the detection monitoring phase that are present in CCRs and would move rapidly through the subsurface, such as boron and sulfate. By requiring monitoring of these key pa rameters, including pH, TDS, fluoride and chloride, which are long proven as precursor contaminants to higher toxicity CCR contaminants, leakage from CCR disposal units will be caught in a timely manner. In other words, these are the contaminants that wou ld be expected to be detected earliest in any monitoring program.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 54 

### Organization: NiSource Corporate Services


### Commenter : Dale A. Helmers Commenter Type: Electric Utility Company

Comment Excerpt Text: Constituents For Detection and Assessment Monitoring (Appendix III and IV)

Conductivity, pH and TDS should not be included in the detection monitoring and assessment monitoring analyte list. These parameters will cause numerous false positives and there a re no cleanup criteria. They are useful field parameters, but should not be included in statistical analyses. CCRs are well characterized and the other parameters are appropriate

.

Response : The Agency has determined that the appropriate parameters to incl ude in the detection monitoring list (Appendix III) are: boron, calcium, chloride, fluoride, pH, sulfate and TDS. The purpose of detection monitoring is to provide for early detection of whether133

contaminants are migrating from the CCR disposal unit. EPA selected contaminants for the detection monitoring phase that are present in CCRs and would move rapidly through the subsurface, such as boron and sulfate. By requiring monitoring of these key parameters, including pH, TDS, fluoride and chloride, which ar e long proven as precursor contaminants to higher toxicity CCR contaminants, leakage from CCR disposal units will be caught in a timely manner. In other words, these are the contaminants that would be expected to be detected earliest in any monitoring pro gram.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06532

- 43 

### Organization: Southern Illinois Power Cooperative


### Commenter : Leonard F. Hopkins Commenter Type: Electric Utility Company

Comment Excerpt Text: Constituents For Detection and Assessment Monitoring (Appendix III and IV)

Conductivity, pH and TDS should not be included in the detection monitoring and assessment monitoring analyte list. These parameters will cause numerous false positives and there are no cleanup criteria. They are useful field paramet ers, but should not be included in statistical analyses. CCRs are well characterized and the other parameters are appropriate

.

Response : The Agency has determined that the appropriate parameters to include in the detection monitoring list (Appendix III) a re: boron, calcium, chloride, fluoride, pH, sulfate and TDS. The purpose of detection monitoring is to provide for early detection of whether contaminants are migrating from the CCR disposal unit. EPA selected contaminants for the detection monitoring ph ase that are present in CCRs and would move rapidly through the subsurface, such as boron and sulfate. By requiring monitoring of these key parameters, including pH, TDS, fluoride and chloride, which are long proven as precursor contaminants to higher tox icity CCR contaminants, leakage from CCR disposal units will be caught in a timely manner. In other words, these are the contaminants that would be expected to be detected earliest in any monitoring program.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06722

- 19 

### Organization: Arkansas Electric Cooperative Corporation (AECC)


### Commenter : Jonathan Oliver Commenter Type: Electric Utility Company

Comment Excerpt Text: EPA should allow for alternative groundwater monitoring parameters and should revise certain of the proposed parameters.

Response: EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions. However, as noted previously, due

to the fact tha t EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only aut horized to134

establish minimum national standards under sections 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be “ no reasonable probability of adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are

more sensitive and those that are l ess sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human

healt h and the environment across the country. EPA accomplished this through a combination of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of specific techn ical parameters to ensure that the performance standard will in fact be met. For example, the detection monitoring parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out o f the unit. The detection monitoring parameters are those parameters that are regularly monitored in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate

whether cons tituents are leaking from the unit. The assessment monitoring list, which includes a larger number of constituents, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a more extensive monitoring program, the p erformance standards in §§ 257.91 and 257.93 would in fact require the facility to install one.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06723

- 26 

### Organization: West Virginia Department of Environmental Protection (WVDEP)


### Commenter : Gary Casto on behalf of Randy C. Huffman Commenter Type: State Government

Comment Excerpt Text: Section 257.94 references specific detection monitoring parameters but should allow flexibility to include additional parameters. It appears that sulfide was incorrectly referenced as a detection monitoring constituent instead of sulfite. pH and Specific Conductance should not be utilized to determine statistically significant increases because they frequently vary between aquifers

-- background well(s) may be in a different aquifer th an downgradient wells.

Response : The Agency has determined that the appropriate parameters to include in the detection monitoring list (Appendix III) are: boron, calcium, chloride, fluoride, pH, sulfate and TDS. The purpose of detection monitoring is to provide for early detection of whether contaminants are migrating from the CCR disposal unit. EPA selected contaminants for the detection monitoring phase that are present in CCRs and would move rapidly through the subsurface, such as boron and sulfate. By requiring monitoring of these key parameters, including pH, TDS, fluoride and chloride, which are long proven as precursor contaminants to higher toxicity CCR contaminants, leakage from CCR disposal units will be caught in a timely

manner. In other w ords, these are the contaminants that would be expected to be detected earliest in any monitoring program . The facility and/or the state can determine that additional parameters be monitored.135

The Agency has deleted conductivity from the detection monitoring program because it is merely a proxy for TDS, which is included on the list of parameters to analyze during detection monitoring. The Agency has also deleted sulfide because it occurs in gro undwater only under strongly reducing conditions, and such conditions are rather rare at CCR disposal facilities. Once a facility enters into assessment monitoring, the detection monitoring parameters will

continue to be monitored. Finally, pH is being re tained in the detection monitoring phase since it predicts how mobile some of the CCR signature toxic metals would be were the leakage to continue. For instance, while the leaching of selenium is significant only under acidic conditions, the leaching of ar senic is enhanced under both acidic and alkaline conditions. 6



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06723

- 32 

### Organization: West Virginia Department of Environmental Protection (WVDEP)


### Commenter : Gary Casto on behalf of Randy C. Huffman Commenter Type: State Government

Comment Excerpt Text:

Section 257.102

- It appears that Sulfide was incorrectly referenced instead of Sulfite as a required detection monitoring constituent.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06819

- 25 

### Organization: Missouri Department of Natural Resources


### Commenter : Robert Stout on behalf of Dru Buntin Commenter Type: State Government

Comment Excerpt Text: The proposed version references a minimum listing of detec tion monitoring parameters. Yet, this list of parameters does not contain any of the listed constituents of concern referenced in the preamble. Missouri's current groundwater monitoring requirements encompass far more constituents for UWLFs. The proposed d etection monitoring parameters appear lacking in order to be protective of groundwater. We have not found sufficient documentation regarding the development of Appendix III to Part 257 Constituents for Detection Monitoring. Based upon our experience, the p roposed constituents are commonly present in natural waters at orders of magnitude differences in concentration. Due to the frequent presence of spatial variation between wells at the same site, and the presence or absence of these constituents in CCRs we recommend that Appendix IV constituents be considered the routine parameter list for detection monitoring. Failure to sample,

6 Leaching of boron, arsenic and selenium from sedimentary rocks: II. pH dependence, speciation and

mechanisms of r elease. Carlito Baltazar Tabelin

, Ayaka Hashimoto

, Toshifumi Igarashi , and Tetsuro

Yoneda

, Science of The Total Environment

, Volumes 473

– 474 , 1 March 2014, Pages 244

– 253: http://www.sciencedirect.com/science/article/pii/S0048969713014836136

and thus establish background and long term data for Appendix IV parameters may preclude effective monitoring of their concentrati ons during assessment monitoring or corrective action. We believe allowing states the right to modify the parameters on a site by site basis, based upon

an evaluation of the chemical constituents of the waste or associated leachate is warranted. Such

an ap proach is environmentally protective and will allow us to consider the most applicable constituents for statistical analysis and source demonstration purposes.

Response: The purpose of detection monitoring is to provide for early detection of whether contaminants are migrating from the CCR disposal unit. EPA selected contaminants for the detection monitoring phase that are present in CCRs and would move rapidly through t he subsurface, such as boron and sulfate. By requiring monitoring of these key parameters, including pH, TDS, fluoride and chloride, which are long proven as precursor contaminants to higher toxicity CCR contaminants, leakage from CCR disposal units will be caught in a timely manner. In other words, these are the contaminants that would be expected to be detected earliest in any monitoring program. Detection of any of these “early warning” contaminants triggers a switch to assessment monitoring involving a more comprehensive list of contaminants, (including a variety of metals, anions, and radioactivity sources, selected on the merits of constituting primary or secondary MCLs and/or their prevalence in documented damage cases).



### Comment Number: EPA

- HQ

- R CRA

- 2009

- 0640

- 06819

- 33 

### Organization: Missouri Department of Natural Resources


### Commenter : Robert Stout on behalf of Dru Buntin Commenter Type: State Government

Comment Excerpt Text: Also, how are states to determine as per §257.91(a)(1) if background groun dwater has been impacted for an existing facility without historic data and with such a limited number of detection monitoring parameters that does not include the most toxic constituents?

Response: Background concentrations will be determined for all Appendix III and Appendix IV

constituents. The Agency recognizes that the design of a groundwater monitoring system that yields groundwater data representative of “background quality” is more challengi ng for existing CCR landfills and CCR surface impoundments than it is for new facilities. The Agency recognizes that there are situations where intra

- well analyses are appropriate. Intra

- well comparisons, including the use of trend graphs, where data of on e well are evaluated over time, are useful in evaluating trends in individual wells and for identifying seasonal effects in the data.

The intra

- well comparison methods do not compare background data to compliance data. However, if an existing facility does not have valid background data, intra

- well comparisons may represent the only valid comparison available. Thus, the rules provide for this situation. However, in the absence of a true background well, several monitoring events may be required to

determin e trends and seasonal fluctuations in ground

- water quality. More detail can be found in the “Technical Manual Solid Waste Disposal Facility Criteria,” EPA530

- R

- 93

- 017, USEPA, November, 1993, Chapter 5, Subpart E, Ground

- Water Monitoring and Corrective Acti on, and the “Unified Guidance Document: Statistical Analysis of Groundwater Monitoring Data at RCRA Facilities,” March 2009, EPA 530/R

- 09

- 007.137



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06827

- 16 

### Organization: Oklahoma Gas and Electric Company (OG&E)


### Commente r : Kenneth E. Raymond Commenter Type: Electric Utility Company

Comment Excerpt Text: With respect to the initial list of proposed indicator parameters, the list should be revised to more closely track the nature of the materials that are stored or disposed in CCR surface impoundments. In particular, conductivity, fluoride and sulfide are unlikely to assist in efforts to determine whether CCR surface impoundment have released constituents into the groundwater. In fact, the use of conductivity as an i ndicator parameter may lead to false positives. In this instance, total dissolved solids would provide a much more accurate measure for potential releases. With regard to fluoride and sulfide, OG&E understands that both are generally not present in high en ough concentrations in CCR leachate to warrant that they be monitored. Therefore, the Agency should remove these parameters from the list. Additionally, the remaining detection monitoring constituents should be added to the assessment monitoring list to en able surface impoundment owners/operators to determine whether statistically significant increases (or decreases in the case of pH) have occurred.

Finally, the Agency should limit the list of assessment monitoring constituents to those with

established max imum contaminant levels (MCLs) as they are the only contaminants the Agency has found that contribute to adverse health effects. Accordingly, aluminum, iron, manganese and molybdenum should be removed from the list of constituents for assessment monitoring

.

Response: The detection monitoring parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those parameters that are regularly monitored in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate whether constituents are leaking from the unit. The assessment monitoring list, which inc ludes a larger number of constituents, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a more extensive monitoring program, the performance standards in §§ 257.91 and 257.93 would in fact require

the facilit y to install one.

The Agency has determined that the appropriate parameters to include in the detection monitoring list (Appendix III) are: boron, calcium, chloride, fluoride, pH, sulfate and TDS. The purpose of detection monitoring is to provide for ea rly detection of whether contaminants are migrating from the CCR disposal unit. EPA selected contaminants for the detection monitoring phase that are present in CCRs and would move rapidly through the subsurface, such as boron and sulfate. By requiring mo nitoring of these key parameters, including pH, TDS, fluoride and chloride, which are long proven as precursor contaminants to higher toxicity CCR contaminants, leakage from CCR disposal units will be caught in a timely manner. In other words, these are t he contaminants that would be expected to be detected earliest in any monitoring program.138

The Agency disagrees that fluoride should be removed from the detection monitoring list

. Specifically, fluoride will be retained in the detection monitoring list be cause it is part of the inherent halogen content of coal that is released during the combustion of coal to form acids as the flue gas cools. It is then captured in FGD scrubbers and, based on the concentration of fluoride present in coal, it will is likel y be present in CCR wastewaters at high enough concentrations to have the potential to leach from the CCRs. As the number of mandatorily

installed scrubbers has been steeply increasing in the last decade, fluoride, a primary MCL, needs to be monitored as p art of the detection monitoring program as an early indication of potential groundwater contamination. The Agency has deleted conductivity from the detection monitoring program because it is merely a proxy for TDS, which is included on the list of

paramete rs to analyze during detection monitoring. The Agency has also deleted sulfide because it occurs in groundwater only under strongly reducing conditions, and such conditions are rather rare at CCR disposal facilities. Once a facility enters into assessment monitoring, the detection monitoring parameters will continue to be monitored.

Regarding the comment suggesting only those constituents with MCLs be present on Appendix IV, the constituents on Appendix IV in today’s rule all have MCLs with the exceptions of cobalt, lithium and molybdenum. Molybdenum has also been found in a number of proven and potential damage cases and is important from a risk screening perspective. In the risk assessment, cobalt was found to be a risk driver for certain disposal practices (acidic wastes), so it is being added to Appendix IV. Lithium is being added to Appendix IV because it has been detected in several proven and potential damage case s at levels exceeding EPA’s Regional Screening Level (RSL) of soil to groundwater and has been determined as potentially toxic if consumed conc urrently with certain drug types. 7



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06833

- 10 

### Organization: Dominion Resources Services, Inc.


### Commenter : Lisa J. Keck on behalf of Pamela Faggert Commenter Type: Electric Utility Company

Comment Excerpt Text:

7 EPA’s Regional Screening Level (RSL) Soil to Groundwater Supporting Table (TR=1E

- 6, HQ=1) May 2014/Mid

atlantic Risk assessment:

http://www.epa.gov/reg3hwmd/risk/human/rb

- concentration_table/Generic_Tables/index.htm ; and

Health Consultation: Che sapeake ATGAS 2H Well Site Leroy Hill Road, Leroy, Leroy Township, Bradford
County, Pennsylvania, October 29, 2013. U.S. Department of Health and Human Services, Agency for
Toxic Substances and Disease Registry Division of Community Health Investigations Atlanta, Georgia.
www.atsdr.cdc.gov139

Significant problems with the Subtitle D options include: unrealistically short closure timeframes

for CCR surface impoundments that must be closed; unwarranted application of location restrictions to existing CCR surface impoundments; inclusion of inappropriate constituents in the proposed groundwater monitoring program; failure to allow for alternate liner systems fo r new CCR disposal facilities; failure to allow professional engineers that are employees of the owner/operator of the disposal unit to make compliance certifications; and an overly broad definition of "CCR Surface Impoundment or impoundment", which inappr opriately captures impoundments that arc not designed to manage or store CCRs.

Response : Regarding the inappropriate constituents in the groundwater monitoring program, EPA selected contaminants for the detection monitoring phase that are present in CCRs and would move rapidly through the subsurface, such as boron and sulfate. By requiring monitoring of these key parameters, including pH, TDS, fluoride and chloride, which are long proven as precursor contaminants to higher toxicity CCR contaminants, leakage from CCR disposal units will be caught in a timely manner. In other words, these are the contaminants that would be expected to be detected earliest in any monitoring program. Detection of any of these “early warning” contaminants triggers a swit ch to assessment monitoring involving a more comprehensive list of contaminants, (including a variety of metals, anions, and radioactivity sources, selected on the merits of constituting primary or secondary MCLs and/or their prevalence in documented damag e cases).



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 37 

### Organization: Avista Corp.


### Commenter : Darrell Soyars Commenter Type: Electric Utility Company

Comment Excerpt Text: Avista supports appropriate groundwater monitoring standards for CCR surface impoundments and landfills. The development of such standards should occur under a RCRA Subtitle D framework, which is modeled largely after the groundwater monitoring programs fo r MSLWFs

under 40 C.F.R. Part 258 and for non

- MWSLFs that may receive CESQG wastes under 40 C.F.R. Part 257, Subpart B. Id . at 35205. Unfortunately, unlike the groundwater monitoring programs for these units under Parts 258 and 257, the Agency is not propo sing to allow an alternate list of indicator parameters to be used in the proposed CCR groundwater monitoring program because of the lack of direct state oversight and “EPA’s information on CCRs indicates that their composition would not be expected to var y such that the parameters are inappropriate.”

Id . at 35205

- 07. Avista believes this is a mistake given the extreme range of natural variations in site geology. Recognizing this fact, EPA should allow for alternate indicator parameters in its

Residual Wast e Regulations, just as some State environmental agencies have done.

Response: EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions. However, as noted previously, due to the fact that EPA cannot require states to develop a permitting program f or this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only authorized to140

establish minimum national standards under section s 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of

adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are more sensitive and those that are less sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human health and the environment across the country. EPA accomplished t his through a combination of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. For example, the detection monitoring parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those

pa rameters that are regularly monitored in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate whether constituents are leaking from the unit. The assessment monitorin g list, which includes a larger number of constituents, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a more extensive monitoring program, the performance standards in §§ 257.91 and 257.93 would in fact re quire the facility to install one.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 39 

### Organization: Avista Corp.


### Commenter : Darrell Soyars Commenter Type: Electric Utility Company

Comment Excerpt Text: With respect to the initial list of indicator parameters proposed by EPA, Avista agrees that it generally focuses on the mobile indicator parameters in leachate from CCR disposal units. 75 Fed. Reg. at 35253 (proposed Appendix III to 40 C.F.R. Part 257). T he potential for false positives would increase significantly if the parameter list were burdened with a host of trace constituents that are much less mobile and are unlikely to be present in CCR leachate without the presence of the proposed indicator para meters. That being said, Avista believes that the proposed indicator parameter list should be revised to more closely track the precise nature of materials that are disposed of in CCR surface impoundments and landfills.

Avista is particularly concerned t hat the proposed detection monitoring constituents

- “fluoride”

and “sulfide”

- are unlikely to assist in efforts to determine whether CCR disposal units have released constituents into groundwater. Fluoride and sulfide simply are not good indicator

parame ters because these constituents generally are not present in high concentrations in CCR leachate and therefore a generic requirement that they be monitored for all CCR disposal units is not warranted. This has been recognized by the Montana DEQ which does not require monitoring for these parameters in Colstrip’s monitoring program for CCRs. Therefore, we urge EPA to remove these parameters from the detection monitoring list. We also recommend that the remaining detection monitoring constituents be added to the assessment monitoring list to assist in assessing statistically significant increases in the detection constituents.141

Response: The Agency has deleted sulfide from the detection monitoring list because it occurs in groundwater only under strongly red ucing conditions, and such conditions are rather rare at CCR disposal facilities. Fluoride will be retained in the detection monitoring list because it is part of the inherent halogen content of coal that is released during the combustion of coal to form

a cids as the flue gas cools. It is then captured in FGD scrubbers and, based on the concentration of fluoride present in coal, it will is likely be present in CCR wastewaters at high enough concentrations to have the potential to leach from the CCRs. As th e number of mandatorily

installed scrubbers has been steeply increasing in the last decade, fluoride, a primary MCL, needs to be monitored as part of the detection monitoring program as an early indication of potential groundwater contamination. Once a un it is in assessment monitoring, they must continue monitoring for the Appendix III parameters, see §257.95(d)(1).



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06956

- 10 

### Organization: Tri

- State Generation & Transmission


### Commenter : Barbara A. Walz Commenter Type: Electric Utility Company

Comment Excerpt Text: With respect to the initial list of indicator parameters proposed by EPA, Tri

- State G&T agrees that it generally focuses on the mobile indicator parameters in leachate from CCR disposal units. The potential for false

- positives would increase significantly if the parameter list was burdened with a host of trace constituents that are much less mobile and are unlikely to be present in CCR leachate without the presence of the proposed indicator parameters. That b eing said, however,

Tri

- State G&T believes that the proposed indicator parameter list should be revised to more closely track the nature of materials that are disposed of in CCR surface impoundments and landfills and that this can best be performed by the individual state programs. Tri

- State G&T is particularly concerned that the proposed detection monitoring constituents

- "conductivity,"

"fluoride" and "sulfide"

- are unlikely to assist in efforts to determine whether CCR disposal

units have released cons tituents into groundwater. The use of “conductivity” as a parameter may lead to “false positives” and there is no need for this parameter when the “Total Dissolved Solids” (“TDS”) parameter is a much more accurate test for the same type of potential releas es. Fluoride and sulfide simply are not good indicator parameters because these constituents generally are not present in high concentrations in CCR leachate and therefore a generic requirement that they be monitored for all CCR disposal units is not warra nted. Therefore, we urge EPA to remove these parameters from the detection monitoring list. We also recommend that the remaining detection monitoring constituents be added to the assessment monitoring list to assist in assessing statistically significant i ncreases in the detection constituents

.

Response: The Agency disagrees that fluoride should be removed from the detection monitoring list . Specifically, fluoride will be retained in the detection monitoring list because it is part of the inherent haloge n content of coal that is released during the combustion of coal to form acids as the flue gas cools. It is then captured in FGD scrubbers and, based on the concentration of fluoride present in coal, it will is likely be present in CCR wastewaters at high enough concentrations to have the potential to leach from the CCRs. As the number of142

mandatorily

- installed scrubbers has been steeply increasing in the last decade, fluoride, a primary MCL, needs to be monitored as part of the detection monitoring program as an early indication of potential groundwater contamination. The Agency has deleted conductivity from the detection monitoring program because it is merely a proxy for TDS, which is included on the list of parameters to analyze during detection monitori ng. The Agency has also deleted sulfide because it occurs in groundwater only under strongly reducing conditions, and such conditions are rather rare at CCR disposal facilities. Once a facility enters into assessment monitoring, the detection monitoring p arameters will continue to be monitored.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06988

- 15 

### Organization: Missouri Joint Municipal Electric Utility Commission


### Commenter : Floyd Gilzow Commenter Type: State Government

Comment Excerpt Text: In addition, APPA agrees with the key problems identified by USWAG, including:

- unrealistically short closure time frames for CCR disposal units

- the unwarranted application of all location restrictions to existing CCR surface impoundments

- the inclusion of inappropriate constituents in the proposed groundwater monitoring program

- the failure to allow for alternate liner systems

- the overly broad definition of “CCR Landfill” that inappropriately includes all “large scale fill operations.”

Response : Regarding the inappropriate constituents in the groundwater monitoring program, EPA selected contaminants for the detection monitoring phase that are present in CCRs and would move rapidly through the subsurface, such as boron and sulfate. By requiring monitoring of these key parameters, including pH, TDS, fluoride and chloride, which are long proven as precursor contaminants to higher toxicity CCR contaminants, leakage from CCR disposal units will be caught in a timely manner. In other words, these ar e the contaminants that would be expected to be detected earliest in any monitoring program. Detection of any of these “early warning” contaminants triggers a switch to assessment monitoring involving a more comprehensive list of contaminants, (including a variety of metals, anions, and radioactivity sources, selected on the merits of constituting primary or secondary MCLs and/or their prevalence in documented damage cases).



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07047

- 27 

### Organization: Great River Energy


### Commenter : Erik Silvola Commenter Type: Electric Utility Company

Comment Excerpt Text: The D prime proposal should allow for alternate groundwater monitoring parameters to account for variations in geology and groundwater chemistry. It should allow a qualified state program to approve an alternate list or a technical professional to certify an alternate list where the removed parameters are not reasonably expected to be in or derived from waste in the disposal unit.143

Response: EPA generally agrees tha t it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions. However, as noted previously, due to the fact that EPA cannot require states to develop a permitting program for this regulation, we

are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only authorized to establish minimum national standards under sections 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of

adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are more sensitive and those that are less sensitive. While it is theoretically possible that this may result in “overprotect ion” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human health and the environment across the country. EPA accomplished this through a combination of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. For examp le, the detection monitoring parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those parameters that are regularl y monitored in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate whether constituents are leaking from the unit. The assessment monitoring list, which includes a

l arger number of constituents, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a more extensive monitoring program, the performance standards in §§257.91 and 257.93 would in fact require the facility to insta ll one.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 82 

### Organization: Maryland Department of the Environment (MDE)


### Commenter : Shari T. Wilson Commenter Type: State Government

Comment Excerpt Text: This Appendix specifies the parameters to be used for detection monitoring. Maryland considers the parameter list to be inadequate to determine whether a release from a CCR facility has occurred, and recommends an expanded list, which is included as the Appendix to these comments. This comment is applicable t o both “C” and “D” proposals.

Appendix: Recommended Routine Groundwater Monitoring Parameters for Both C and D Proposals.

Elements and Indicator Parameters | PQL (ppm except as noted) |

Total Antimony | 0.0020 |

Total Arsenic | 0.0040 |

Total Ba rium | 0.0100 |

Total Beryllium | 0.0020 |144

Total Boron | 0.013 |

Total Cadmium | 0.0040 |

Total Chromium | 0.0100 |

Total Calcium | 0.08 |

Total Cobalt | 0.0100 |

Total Copper | 0.0100 |

Total Iron | 0.0050 |

Total Lead | 0.0020 |

Total Lithium | 0.016 |

Total Nickel | 0.0110 |

Total Magnesium | 0.004 |

Total Manganese | 0.0100 |

Total Mercury | 0.0002 |

Total Molybdenum | 0.016 |

Total Potassium | 0.39 |

Total Selenium | 0.0120 |

Total Silver | 0.0100 |

Total Sodium | 0.2 |

Total Thallium | 0.0020 |

Total Vanadium | 0.0100 |

Total Zinc | 0.0100 |

pH | 0.1 (SU) |

Alkalinity | 1 |

Hardness | 0.5 |

Chloride | 0.39 |

Specific conductance | 1 |

Nitrate | 0.06 |

Chemical oxygen demand | 1 |

Turbidity | 0.11 (NTU) |

Ammonia | 1 |

Total Sulfate | 0.38 |

Total dissolved solids | 10 |

|145

Response : EPA selected contaminants for the detection monitoring phase that are present in CCRs and would move rapidly through the subsurface, such as boron and sulfate. By requiring monitoring of these key parameters, including pH, TDS, fluoride and chloride, w hich are long proven as precursor contaminants to higher toxicity CCR contaminants, leakage from CCR disposal units will be caught in a timely manner. In other words, these are the contaminants that would be expected to be detected earliest in any monitor ing program. Detection of any of these “early warning” contaminants triggers a switch to assessment monitoring involving a more comprehensive list of contaminants, (including a variety of metals, anions, and radioactivity sources, selected on the merits o f constituting primary or secondary MCLs and/or their prevalence in documented damage cases).

As discussed earlier in this response to comments document, EPA is only authorized to establish minimum national standards under sections 1008(a)(3) and 4004(a ). The states are allowed to be more stringent and require additional constituents be monitored. 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 mana gement plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08220

- 17 

### Organization: PowerSouth Energy Cooperative


### Commenter : Dr. Keith Stephens Commenter Type: Electric Utility Company

Comment Excerpt Text 

### : EPA should allow for alternative groundwater monitoring parameters and should revise certain of the proposed parameters.

Response: EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individ ual site conditions. However, as noted previously, due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA

pro grams, such as under the regulatory program for MSWLFs. EPA is only authorized to establish minimum national standards under sections 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements th at are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites acros s the country

– both those that are more sensitive and those that are less sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has bee n designed to in fact be “the minimum” necessary to protect human health and the environment across the country. EPA accomplished this through a combination of performance standards, which inherently provide flexibility in that it does not specify a singl e method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. For example, the detection monitoring parameters are limited in number and are designed to be protective an d adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those146

parameters that are regularly monitored in the field when any ground water monitoring is undertaken along with a few constitue nts (i.e., boron) that are found in CCRs and will indicate whether constituents are leaking from the unit. The assessment monitoring list, which includes a larger number of constituents, is based on what is expected in CCR wastes. However, to the

extent that site conditions warrant a more extensive monitoring program, the performance standards in §§ 257.91 and 257.93 would in fact require the facility to install one.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 44 

### Organization: Ohio Environmental Protection Agency


### Commenter : Chris Korleski Commenter Type: State Government

Comment Excerpt Text: Groundwater appendix III: Constituents for Detection Monitoring and appendix IV Constituents for Assessment Monitoring (p. 35253)

In establishing a list o f constituents for sampling the ground water for potential impacts from the CCR landfill or surface impoundment, the proposed rules fail to recognize the diversity of wastes defined as CCR. In general, CCR can be subcategorized into four very different kin ds of waste: FGD, fly ash, bottom ash and slag. All of these wastes are usually disposed of separately.

Each of these wastes has different chemistries and origins within the coal combustion process. In addition to the chemistry of these wastes, the const ituents they leach can also be dependent on the source of the coal burned; be it western coal with a low sulfur and high ash content or eastern anthracite coal with a high sulfur and low ash content.

Ohio EPA recommends that the rule reflect this diversi ty in CCR waste and create constituent lists for the analysis of ground water that reflect the four main types of wastes (i.e. FGD, fly ash, bottom ash and slag). Ohio EPA recommends that Appendix III be subdivided into two parts.

The first part would li st the constituents to be analyzed in ground water samples for landfills and impoundments handling FGD wastes or co

- disposing FGD with fly ash. Ohio EPA recommends the concentrations of the following constituents be determined in ground water samples on a

semi

- annual basis: calcium, chloride, potassium, sodium, and sulfate. Ohio EPA has regulated FGD landfills for 19 years and has determined based on examination of the leachate from these

landfills that this constituent list best reflects what will leach fr om the waste into the ground water first. This list will give the best indication that a release from the FGD landfill may be occurring.

The second list would encompass those sites disposing of fly ash, bottom ash, slag or a mixture

of two or more of the se. The constituent list for analysis of ground water samples should be sulfate, selenium, iron, magnesium, total dissolved solids, calcium, and alkalinity. This list reflects the impacts to ground water from fly ash/bottom ash ponds and landfills at AEP’s Conesville Station (EPRI 1984), DP&L’s Stuart Station and Duke Energy’s W.C. Beckjord

Station.147

Response: The rule does not prohibit facilities from disposing of different CCR wastes in the

same unit. And the data in the record indicate that it is common practice at many faci lities to commingle the wastes . Where wastes are commingled, the commenter’s approach would fail to monitor for all relevant constituents. Consequently, while the commenter’s suggestion might be appropriate for some facilities , it would not be appropriate or protective at all sites nationwide.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 77 

### Organization: Prairie State Generating Company, LLC (PSGC)


### Commenter : Keith Bastian Commenter Type: Electric Utility Company

Comment Exce rpt Text: Constituents for Detection and Assessment Monitoring (Appendix III and IV) Conductivity, pH and TDS should not be included in t he detection monitoring and assessment monitoring analyte list. These parameters will cause numerous false positives and there are no cleanup criteria. They are useful field parameters, but should not be included in statistical analyses. CCRs are well charac terized and the other parameters are appropriate.

Response : The Agency has determined that the appropriate parameters to include in the detection monitoring list (Appendix III) are: boron, calcium, chloride, fluoride, pH, sulfate and TDS. The purpose of detection monitoring is to provide for early detection of whether contaminants are migrating from the CCR disposal unit. EPA selected contaminants for the detection monitoring phase that are present in CCRs and would move rapidly through the subsurface, such as boron and sulfate. By requiring monitoring of these key parameters, including pH, TDS, fluoride and chloride, which are long proven as precursor contaminants to higher toxicity CCR contaminants, leakage from CCR disposal units will be caught in a timely manner. In other words, these are the contaminants that would be expected to be detected earliest in any monitoring program.

With respect to TDS, it is being retained as a detection

- monitoring parameter since it provides a check on the concentration levels of some major alkaline and alkaline

- earth elements, some of which (i.e., sodium and magnesium) are scrubber

- captured conta minants or products of evaporative concentration in cooling ponds in facilities deploying closed

- loop cooling. The Agency has deleted conductivity from the detection monitoring program because it is merely a proxy for TDS, which is included on the list of parameters to analyze during detection monitoring. Finally, pH is being retained in the detection monitoring phase since it predicts how mobile some of the CCR signature toxic metals would be were the leakage to continue. For instance, while the leaching of selenium is significant only under acidic conditions, the leaching

of arsenic is enhanced under both acidic and alkaline conditions. 8

8 Leaching of boron, arsenic and selenium from sedimentary rocks: II. pH dependence, speciation and

mechanisms of release. Carlito Baltazar Tabelin

, Ayaka Hashimoto

, Toshifumi Igarashi , and Tetsuro

Yoneda

, Science of The Total Environment

, Volumes 473

– 474 , 1 March 2014, Pages 244

– 253: http://www.sciencedirect.com/science/article/pii/S0048969713014836148



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 44 

### Organization: Arizona Department of Environmental Quality (ADEQ)


### Commenter : Benjamin H. Grumbles Commenter Type: State Government

Comment Excerpt Text: Pg. 35253, Appendices III and IV to Part 257: The parameters listed in this table are proposed for all CCR facilities. Under Arizona’s Aquifer Protection Permit program , the ADEQ Director has discretion to establish parameters for groundwater monitoring on a facility

- specific basis. This approach provides the agency with flexibility to establish parameters in each permit. ADEQ suggests that a more flexible approach with facility

- specific monitoring be proposed rather than prescriptive monitoring for all facilities.

Response: EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions. However, as noted previously, due to the fact that EPA cannot require states to develop a permitting program f or this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only authorized to

establish minimum national standards under section s 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of

adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are more sensitive and those that are less sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human health and the environment across the country. EPA accomplished t his through a combination of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. For example, the detection monitoring parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those

pa rameters that are regularly monitored in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate whether constituents are leaking from the unit. The assessment monitorin g list, which includes a larger number of constituents, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a more extensive monitoring program, the performance standards in §§ 257.91 and 257.93 would in fact re quire the facility to install one.149

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

- 2009

- 0640

- 09427

- 1 7 

### Organization: San Miguel Electric Cooperative, Inc. (San Miguel)


### Commenter : Joseph G. Eutizi Commenter Type: Electric Utility Company

Comment Excerpt Text: EPA should allow for alternative groundwater monitoring parameters and should revise certain

of the proposed parameters.

Response: EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions. However, as noted previously, due to the fact that EPA cannot require state s to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only authorized to

establish minim um national standards under sections 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are

more sensitive and those that are less sensitive. While it i s theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human

health and the environment acro ss the country. EPA accomplished this through a combination of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. For example, the detection monitoring parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those parameters that are regularly monitored in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate whether constituents are leaking from the unit. The assessment monitoring list, which includes a larger number of constituents, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a more extensive monitoring program, the performance standards in §§ 257.91 and 257.93 would in fact require the facility to install one.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09431

- 24 

### Organization: Otter Tail Power Company


### Commenter : Farren Richard Commenter Type: Electric Utility Company

Comment Excerpt Text: The parameter list appears to be appropriate for detection monitoring.150

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 55 

### Organization: Electric Power Research Institute (EPRI)


### Commenter : Ken Ladwig Commenter Type: Trade Association

Comment Excerpt Text: Groundwater Monitoring

US EPA requests comments on the groundwater monitoring parameters listed for the detection monitoring phase under Subtitle D, and statistical analysis of the data.

Th e detection monitoring list includes: boron, chloride, fluoride, sulfate, sulfide, and total dissolved solids. We agree with the philosophy of using mobile indicator constituents during the detection monitoring phase, as reflected in this list. As discusse d in our comments on the risk assessment and damage cases (Sections 3 and 5, respectively), boron and sulfate are key indicators for ash leachate. They are mobile in most groundwater environments, and were the most commonly observed at sites with groundwat er releases. Sulfate and the halides may be useful at FGD management sites. There is little value in monitoring the more slowly moving trace metals during the detection phase. In addition, trace metals are generally more likely to yield false positives, or outliers that can be mistaken for groundwater impacts (e.g., see Figure 5

- 1 in Section 5.2).

The groundwater monitoring rules under the proposed Subtitle D rule and the existing rules under Subtitle C Subpart F of 40 CFR 264 and 265 rules are structurall y similar, with detection monitoring, assessment/compliance monitoring, and corrective action. However, details of the two monitoring approaches are sometimes considerably different. For example, as noted above, the list of monitoring constituents proposed for Subtitle D monitoring is tailored for detection of CCRs; conversely, the default monitoring list under the existing 40 CFR 264 rules calls for monitoring more than 200 constituents, including many organic constituents which US EPA recognizes are not e xpected to occur in coal ash leachate (see Fed. Reg. 75[118], 35175, 35193). Furthermore, the list of interim detection monitoring constituents under 40 CFR 265 does not

contain constituents that are often used as indicators for coal ash leachate. Therefor e, regardless of the option adopted in the final rule, we recommend groundwater monitoring and compliance rules specific to CCR monofills, rather than using the existing Subtitle C rules designed for facilities receiving highly variable mixtures of wastes.

EPRI’s MANAGES software is a database management tool specifically developed for use by utilities to manage groundwater data at CCR sites. In addition to quality control, reporting, and graphing capabilities, MANAGES has a full suite of built

- in statisti cal functions, including an automated “Statistical Procedure for Detection Monitoring” routine designed to be compliant with statistical requirements for municipal solid waste contained in 40 CFR 258.53, which parallel the requirements for CCRs listed in s ection 257.93 of the Proposed Rule.

EPRI is also currently developing a multi

- tiered approach to assessing groundwater quality151

signatures associated with CCRs. Each tier becomes progressively more data intensive and requires more detailed interpretation. The first tier consists of basic analysis using mobile indicators such as boron and sulfate along with other constituents to establish a simple fingerprint and perform routine statistical analysis. The second tier involves more geochemical analysis, includ ing visual aids such as tri

- linear plots, stiff diagrams, and radar plots. This tier is similar in concept to the FALCON (Fingerprint Analysis of Leachate Contaminants) process developed by the US EPA for identifying the source of contaminant plumes in wat er (Plumb, 2004). FALCON combines data for several contaminants from a defined source to develop a distinctive graphical fingerprint or multi

- parameter chemical signature. The applicability of the FALCON method to fingerprint the variety of possible contam inants from CCR facilities has not

been tested.

The third tier of analysis includes the use of stable isotopes to help identify the source of a constituent. The USGS recently used isotopes of boron (11B/10B) and strontium (87Sr/86Sr) to help identify the sources of boron and strontium in groundwater near the town of Beverly Shores in Indiana (Buszka et al., 2007). EPRI is working with the USGS to collect field samples at additional sites and further test the use of isotopes to distinguish CCR impacted grou ndwater from background and other sources of contaminants.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 51 

### Organization: Utility Solid Waste Activities Group (USWAG) et al.


### Commenter : James R. Roewer Commenter Type: Trade Association

Comment Excerpt Text: EPA Should Allow For Alternative Groundwater Monitoring Parameters And Should Revise Certain Of The Proposed Parameters

USWAG supports appropriate groundwater monitoring standards for CCR surface impoundments and landfills and we support the development of such standards under a RCRA Subtitle D framework, which is modeled largely after the groundwater monitoring programs for

MSLWFs under 40 C.F.R. Part 258 and for non

- MWSLFs that may recei ve CESQG wastes under 40 C.F.R. Part 257, Subpart B. Id. at 35205. Unfortunately, unlike the groundwater monitoring programs for these units under Parts 258 and 257, the Agency is not proposing to allow an alternate list of indicator parameters to be used in the proposed CCR groundwater monitoring program because of the lack of direct state oversight and “EPA‘s information on CCRs indicates that their composition would not be expected to vary such that the parameters are inappropriate.” Id. at 35205

- 07. Thi s is a mistake.

First, from a technical perspective, given that site

- specific factors are critical for establishing constituents and corresponding concentrations for detection and assessment monitoring, it is important that EPA authorize registered profes sionals to certify variances from the otherwise applicable parameters used for detecting constituents in groundwater and assessing statistically significant increases from background for these parameters. Given the extreme range of natural152

variations in si te geology and groundwater at CCR disposal units across the country, it will often be necessary for technical experts to adjust the specific groundwater monitoring standards that

EPA establishes to account for various site

- specific conditions and factors. Further, any variances to the list of regulatory parameters would only be available if approved by a qualified state program (under, for example, a state regulatory regime approved by EPA under RCRA Section 4005(c)) or if certified by a registered professi onal and such certifications are recorded in a facility‘s operating record, filed with the state and posted on the state or facility‘s publicly available internet site. As other critical elements of the Subtitle D program are predicated on compliance certi fications by these technical professionals, there is no reason not to authorize these professionals to identify and certify, where appropriate, necessary adjustments to the groundwater monitoring parameters based on site

- specific factors.

Therefore, USWAG recommends that EPA include language in the Subtitle D groundwater monitoring rules for CCR disposal units similar to that in the MSWLFs rules allowing for the state or a registered professional (in the context of a self

- implementing Subtitle D rule) to d elete any constituents from otherwise required groundwater monitoring “if it can be shown that the removed constituents are not reasonably expected to be in or derived from the waste contained in the unit.” 40 C.F.R. § 258.54(a)(1). Similarly, the state or a registered professional should be authorized to establish an alternative list of indicator parameters in lieu of some or all of the otherwise specified indicator parameters “if the alternative parameters provide a reliable indication of inorganic releas es from the [CCR] unit to the groundwater.” Id. at § 258.54(a)(2).

With respect to the initial list of indicator parameters proposed by EPA, USWAG agrees that it generally focuses on the mobile indicator parameters in leachate from CCR disposal units. 75 Fed. Reg. at 35253 (proposed Appendix III to 40 C.F.R. Part 257). The potential for false positives would increase significantly if the parameter list were burdened with a host of trace constituents that are much less mobile and are unlikely to be present in CCR leachate without the presence of the proposed indicator parameters. That being said, USWAG believes that the proposed indicator parameter list should be revised to more closely track the nature of materials that are disposed of in CCR surface impoun dments and landfills. USWAG is particularly concerned that the proposed detection monitoring constituents

- “conductivity,” “fluoride” and

“sulfide”

– are unlikely to assist in efforts to determine whether CCR disposal units have

released constituents into groundwater. In fact, the use of “conductivity” as a parameter may lead to false positives and there is no need for this parameter when the Total Dissolved Solids parameter is a much more accurate test for the same type of potential releases. Similarly, f luoride and sulfide are not good indicator parameters because these constituents generally are not present in high concentrations in CCR leachate and therefore a generic requirement that they be monitored for all CCR disposal units is not warranted. Hence, we urge EPA to remove these parameters from the detection monitoring list. We also recommend that the remaining detection monitoring constituents be added to the assessment monitoring list to assist in assessing statistically significant increases in the detection constituents.

Additionally, USWAG urges EPA to limit the list of assessment monitoring constituents to the primary drinking water constituents for which a maximum contaminant level has been established (as well as the detection monitoring parame ters, as addressed above). These primary constituents are the only materials EPA has found to contribute to adverse health effects; all153

other listed constituents have not been linked to health effects and EPA should not require groundwater remediation for these parameters. Accordingly, EPA should remove aluminum, iron, manganese and molybdenum from the list of constituents for assessment monitoring.

Response: Due to the fact that EPA cannot require states to develop a permitting program for this regulation , we are not able to allow many of the site

- specific flexibilities that are allowed in other EPA programs, such as under the regulatory program for MSWLFs. The Agency does not believe allowing alternate groundwater monitoring programs, such as those allow ing only a subset of constituents be monitored, would be workable in the context of a self

- implementing rule, because there is no regulatory entity to judge the reasonableness of the desired alternatives. The requirements of the groundwater monitoring pro gram in this rule allow as much flexibility as we believe we can accommodate, given the lack of oversight by a permitting authority, and the need to demonstrate that the rule provisions will achieve section 4004(a)’s statutory standard.

EPA generally agre es that it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions. However, as noted previously, due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only authorized to establish minimum national standards under sections 1008(a)(3) and 400 4(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of

adverse effects on health or the environment” nation wide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are more sensitive and those that are less sensitive. While it is theoretically possible that this may result in “overp rotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human health and the environment across the country. EPA accomplished this through a combin ation of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. For example, the detection monitoring parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those parameters that are re gularly monitored in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate whether constituents are leaking from the unit. The assessment monitoring list, which includ es a larger number of constituents, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a more extensive monitoring program, the performance standards in §§ 257.91 and 257.93 would in fact require the facility to install one.

The Agency has determined that the appropriate parameters to include in the detection monitoring list (Appendix III) are: boron, calcium, chloride, fluoride, pH, sulfate and TDS. The purpose of detection monitoring is to provide for earl y detection of whether contaminants are migrating from the CCR disposal unit. EPA selected contaminants for the detection monitoring phase that are present in CCRs and would move rapidly through the subsurface, such as boron and sulfate. By requiring moni toring of these key parameters, including pH, TDS, fluoride and154

chloride, which are long proven as precursor contaminants to higher toxicity CCR contaminants, leakage from CCR disposal units will be caught in a timely manner. In other words, these are the contaminants that would be expected to be detected earliest in any monitoring program.

The Agency disagrees that fluoride should be removed from the detection monitoring list

. Specifically, fluoride will be retained in the detection monitoring list because it is part of the inherent halogen content of coal that is released during the combustion of coal to form acids as the flue gas cools. It is then captured in FGD scrubbers and, based on the concentration of fluoride present in coal, it will is likely be present in CCR wastewaters at high enough concentrations to have the potential to leach from the CCRs. As the number of mandatorily

installed scrubbers has been steeply incr easing in the last decade, fluoride, a primary MCL, needs to be monitored as part of the detection monitoring program as an early indication of potential groundwater contamination. The Agency has deleted conductivity from the detection monitoring program b ecause it is merely a proxy for TDS, which is included on the list of parameters to analyze during detection monitoring. The Agency has also deleted sulfide because it occurs in groundwater only under strongly reducing conditions, and such conditions are r ather rare at CCR disposal facilities. Once a facility enters into assessment monitoring, the detection monitoring parameters will continue to be monitored.

Regarding the comment suggesting only those constituents with MCLs be present on Appendix IV, the constituents on Appendix IV in today’s rule all have MCLs with the exceptions of cobalt, lithium and molybdenum. Molybdenum has also been found in a number of proven and potential damage cases and is important from a risk screening perspective. In the r isk assessment, cobalt was found to be a risk driver for certain disposal practices (acidic wastes), so it is being added to Appendix IV. Lithium is being added to Appendix IV because it has been detected in several proven and potential damage cases at lev els exceeding EPA’s Regional Screening Level (RSL) of soil to groundwater and has been determined as potentially toxic if consumed conc urrently with certain drug types. 9

9 EPA’s Regional Screening Level (RSL) Soil to Groundwater Supporting Table (TR=1E

- 6, HQ=1) May 2014/Mid

atlantic Risk assessment:

http://www.epa.gov/reg3hwmd/risk/human/rb

- concentration_table/Generic_Tables/index.htm ; and
Health Consultation: Chesapeake A TGAS 2H Well Site Leroy Hill Road, Leroy, Leroy Township, Bradford
County, Pennsylvania, October 29, 2013. U.S. Department of Health and Human Services, Agency for
Toxic Substances and Disease Registry Division of Community Health Investigations Atlanta, Georgia.
www.atsdr.cdc.gov155

Section 4.4.7.8.2

- EPA solicits comment on whether it should allow deletion of detection monitoring parameters and alternative sampling frequencies based on compliance with performance standard documented by independent PE/hyd olo gist; including data to demonstrate conditions under which such alternatives would be protective as well a s info to indicate prevalence of such conditions at CCR LFs/SIs (35206

- 35207)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 15 

### Organization: We Energies


### Commenter : Art Covi Commenter Type: Electric Utility Company

Comment Excerpt Text: COMMENT: We Energies has been monitoring groundwater quality at its coal ash landfills for nearly 30 years in accordance with state regulated programs. During that time we have modified parameter lists and sample frequencies in conjunction with state regul atory approvals with no loss in our ability to perform detection and compliance monitoring.

Parameter lists have been modified to remove constituents that are not present in leachate or that do not return meaningful results in groundwater monitoring. Par ameter lists have also been expanded as needed when groundwater quality standards were promulgated for new constituents, and may in the future be expanded to include parameters potentially present in leachate as air emission controls at the power plants ar e added. Monitoring frequencies have been reduced over time as allowed by state permits; typically after sites stopped receiving CCP and were covered. These frequency reductions have not caused a loss of definition in groundwater monitoring.

States such as Wisconsin and Michigan, which already have programs in place to safely and efficiently regulate CCRs, should not be penalized due to the potential that a handful of states may not adequately regulate CCRs. EPA needs to pursue other options to get these states to adopt programs consistent with Subtitle D and let the states that already have such programs

continue their successes.

Response: Due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are allowed in other EPA programs, such as under the regulatory program for MSWLFs. The Agency does not believe allowing alternative groundwater monitoring parameters would be workable in the

context of a self

- implementing rule, because there is no regulatory entity to judge the reasonableness of the desired alternatives. The requirements of the groundwater monitoring program in this rule allow as much flexibility as we believe we can accommodate, giv en the lack of oversight by a permitting authority, and the need to demonstrate that the rule provisions will achieve section 4004(a)’s statutory standard.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 16 

### Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company


### Commenter : Chris M. Hobson156

Commenter Type: Electric Utility Company

Comment Excerpt Text: Detection Monitoring: Any Detection Monitoring Parameters Should Incorporate Site

- Specific

Considerations.

Given the extreme range of natural variations in site geology and groundwater at CCB disposal units across the country, it is often necessary for t echnical experts to adjust groundwater monitoring standards to account for various site

- specific conditions and factors. Decisions to implement any variances to the list of regulatory parameters may be subject to approval under a qualified state program (u nder, for example, a state regulatory regime approved by EPA under RCRA Section 4005(c)) as well as certification by a registered professional engineer or hydrologist.

In this context, Southern Company believes that EPA intends for the term “hydrologist” to mean subsurface hydrologist, otherwise known as a hydrogeologist or geohydrologist. Since “hydrologist” could be taken to mean a surface

- water hydrologist, Southern Company recommends that “registered professional engineer or hydrologist” be replaced w ith “qualified ground

- water scientist,” who is a scientist or engineer that has sufficient education and experience to make sound professional judgments with respect to groundwater issues. EPA uses this particular phrase in other contexts for purposes of i ts CWA and RCRA regulations. [Footnote 56: See 40 C.F.R. 122.21, 257.21(b) & (f), 257.22(d)(2), 257.24(c)(3), 257.25(g)(2), 257.28(c)(1) & (f), 258.50(b) & (g), 258.51(d)(2), 258.54(c)(3), 258.55(g)(2), 258.58(c)(1) & (f), 260.10, 265.91(a)(3), 503.21(l), 503.24(n)(2).]

If EPA enacts Subtitle D standards for CCB disposal units, EPA should include language similar to that in the MSWLFs rules, allowing for the state or a qualified groundwater scientist (in the

context of a self

- implementing Subtitle D rule) to delete any constituents from otherwise required groundwater monitoring “if it can be shown that the removed constituents are not reasonably expected to be in or derived from the waste contained in the unit.” [Footnote 57: See 40 C.F.R. 258.54(a)(1).] S imilarly, the state or a qualified groundwater scientist should be authorized to establish an alternative list of indicator parameters in lieu of some or all of the otherwise specified indicator parameters “if the alternative parameters provide a reliable indication of inorganic releases from the [CCB] unit to the groundwater.” [Footnote 58: See 40 C.F.R. 258.54(a)(2).]

Any federal standards should allow deletion of monitoring parameters and allow alternative sampling frequencies. [Footnote 64: 75 Fed. Reg . at 35206

- 07.]

Should EPA enact federal standards, the standards should allow deletion of parameters and negotiation of alternative sampling frequencies based upon site

- specific conditions, such as groundwater flow rates, distances to potential receptors , and material characterization. Parameters should be deleted from a monitoring list if they are proven not to be present in the material being stored on site or in its leachate. Flexibility in sampling parameters should be allowed so sampling time, money, and effort can be tailored to constituents that will likely impact a given site. If EPA removes this flexibility, EPA would be reversing years of standard157

industry practice in all types of state and federal groundwater monitoring programs conducted

under RCRA, CERLCA, underground storage tank programs, brownfields/voluntary cleanup, and remediation monitoring.

Response: Regarding the groundwater monitoring comment, d ue to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many

of the site

- specific flexibilities that are allowed in other EPA programs, such as under the regulatory program for MSWLFs. The Agency does not believe allowing alternative groundwater monitoring parameters would be workable in the context of a self

- implementing rule, because there is no regulatory entity to judge the reasonableness of the desired alternatives. The requirements of the groundwater monitoring program in this rule allow as much flexibility as we believe we can accommodate, given the lack of oversight by a permitting authority, and the need to demonstrate that the rule provisions will achieve section 4004(a)’s statutor y standard.

. 

### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 72 

### Organization: Earthjustice et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text: Background monitoring

- At new sites, background concentrations should be monitored at both upgradient and downgradient wells prior to the start of disposal activities. At existing sites, background must be monitored by one or more upgradient wells. A minimum of one year of monthly monitoring of background concentrations is need ed to characterize fluctuations in parameters that will be evaluated statistically. It will also help to ensure that quarterly monitoring events are properly timed. For diagnostic metals, quarterly background monitoring is sufficient.

Response: Groundwate r monitoring is complicated and very dependent on site

- specific attributes of the CCR disposal unit. If the facility is new, groundwater samples collected from both upgradient and downgradient locations prior to the disposal of CCRs can be used to establi sh background quality. The sampling should be conducted to account for both seasonal and spatial variability in groundwater quality. EPA has determined that one year of monitoring need not be required provided the sampling accurately accounts for both se asonal and spatial variability. However, the owner or operator of the CCR disposal facility can decide that is in their best interest to conduct such monitoring.

The frequency of sample collection under detection monitoring should be evaluated for each s ite according to hydrogeologic conditions and unit design. The minimum sampling frequency required by today’s rule is semiannual. States can require more frequent sampling, or the owner or operator could determine that more frequent monitoring would be d esirable for a certain site. For example, quarterly sampling may be conducted to evaluate seasonal effects on ground

- water quality. The frequency of sample collection during assessment monitoring activities will depend

on site

- specific hydrogeologic cond itions and contaminant properties. Again, today’s rule requirement is considered a minimum. The frequency of sampling is intended to obtain a data set that is statistically independent of the previous set. Guidance to estimate this minimum time158

to obtai n independent samples is provided in “Unified Guidance Document: Statistical Analysis of Groundwater Monitoring Data at RCRA Facilities”, March 2009, EPA 530/R

- 09

- 007.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 76 

### Organization: Earthjustice et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group



### Comment Excerpt Text: At sites that begin monitoring when they are already in operation, the same rebuttable presumption exists when a diagnostic parameter exceedance occurs. However, if the exceedance is found when monitoring first begins, the operator will not have had the opportunity to fully characterize background conditions. It would then be necessary to allow new data collection to establish regional background water quality or to identify other l ocalized sources of contamination. (Because the diagnostic parameters are markers of coal combustion wastes and relatively unusual as contaminants from other sources, “fingerprinting” methods should be very effective in distinguishing sources.)

A further p rovision is desirable for sites where background data is collected prior to construction. When a diagnostic parameter exceeds background at such sites, the rule should limit the data used to rebut the assumption that the landfill is the source of the conta mination. The site should proceed directly to assessment monitoring unless another identifiable source can be shown from previously collected background data to be the cause of the exceedance. Such a rule serves several purposes. First, it would minimize t he time delay before remediation. Second, it would give the site operator a strong incentive to identify and characterize other sources before waste receipt begins. This potentially has the additional environmental benefit of uncovering previously unknown contamination problems. An operator who believes that the existence of an

off

- site source can be demonstrated with new data would be free to collect those data during assessment monitoring.

Response: The Agency has revised the requirements on determining background levels. The Agency agrees with the comments that four samples would be insufficient and has amended the rule to require the owner or operator to collect, at a minimum, eight statistically independent and identically distributed (spatially invariant) samples from e ach well for each monitoring

parameter. Although still a small sample size by statistical standards, eight independent observations allows for minimally acceptable estimates of variability and evaluation of trend and goodness

- of fit. While more samples, including a full year of background monitoring, would be scientifically ideal, the Agency selected eight samples by balancing the minimum number needed to ensure the scientific accuracy of the results against the need to expedite initiating the groundwater monitoring process of detecting exceedances, along with any necessary corrective

action at these facilities.

Background levels should be adequately characterized before any CCR is placed into a new unit. If after an exceedance is found, the owner or op erator wants to demonstrate that the exceedance was caused by another source, they have the opportunity to demonstrate that.159

T he owner or operator of the CCR disposal facility may demonstrate that a source other than

their CCR unit caused the contaminatio n or that the statistically significant increase above ground water protection standards resulted from error in sampling, analysis, statistical evaluation, or natural variation in groundwater quality. Until that demonstration is made, however, the owner o r operator of the CCR disposal facility must comply with the other requirements of this section, including initiating assessment monitoring . The 90 days allowed for this demonstration, before the assessment monitoring phase must start, should be time

enou gh in most instances to conduct at least two sampling events. Once the 90 days have passed, until that demonstration is made, the owner or operator of the CCR disposal facility must comply with the other requirements of this section, including initiating a ssessment monitoring . In other words, any owner or operator may demonstrate that the statistically significant increase resulted from an error in sampling, analysis, statistical evaluation, or natural variation in groundwater quality, or was caused by a so urce other than the CCR disposal unit, but this activity does not waive the responsibility of the owner or operator to initiate assessment monitoring after the allotted timeframe of 90 days.

For more detail on the groundwater monitoring requirements, the commenter is referred to Unit VI.K of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06833

- 19 

### Organization: Dominion Resources Services, Inc.


### Commenter : Lisa J. Keck on behalf of Pamela Faggert Commenter Type: Electric Utility Company

Comment Excerpt Text:

EPA should allow for alternative groundwater monitoring parameters.

Dominion supports appropriate groundwater monitoring standards for CCR surface impoundments and landfills, and we support the development of such standards under a RCRA

Subtitle D framework . The RCRA Subtitle D framework is modeled largely after the groundwater monitoring programs for MSWLFs under 40 C.F.R. Part 258 and for non

- MSWLFs that may receive conditionally

- exempt small quantity gen erator wastes under 40 C.F.R. Part 257, Subpart B. 75 Fed. Reg. at 35205. However, unlike the groundwater monitoring programs for these units under Parts 257 and 258, EPA is not proposing to allow an alternate list of indicator parameters to be used in the CCR groundwater monitoring program due to the perceived lack of direct state oversight and because EPA's information on CCRs indicates that the composition of CCRs is not variable. Dominion suggests an alternative approach.

We recommend that EPA include conditions in the Subtitle D groundwater monitoring rules for CCR disposal facilities similar to those in the MSWLF rules that allow the deletion of any constituents from required groundwater monitoring "if it can be shown that the removed

constituents ar c not reasonably expected to be in or derived from the waste contained in the unit." 40 C.F.R. § 258.54(a)(I). Similarly, an alternative list of indicator parameters should be

allowed to be established in lieu of some or all of the othe r wise specified indi cator parameters "if the alternative parameters provide a rel iable indication of inorganic re leases from the [CCR] unit160

to the groundwater." /d. at 258.54(a)(2). Dominion agrees with USWAG's proposed revisions to the detection monitoring program and the as sessment monitoring program that arc included in USWAG's comments on the proposed rule.

Response: EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions. However, as noted previously, due to the fact that EPA cannot require states to develop a permitting program f or this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only authorized to

establish minimum national standards under section s 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of

adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are more sensitive and those that are less sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human health and the environment across the country. EPA accomplished t his through a combination of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. For example, the detection monitoring parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those

pa rameters that are regularly monitored in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate whether constituents are leaking from the unit. The assessment monitorin g list, which includes a larger number of constituents, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a more extensive monitoring program, the performance standards in §§ 257.91 and 257.93 would in fact re quire the facility to install one.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 38 

### Organization: Avista Corp.


### Commenter : Darrell Soyars Commenter Type: Electric Utility Company

Comment Excerpt Text: Registered professionals should be allowed to adjust site

- specific groundwater monitoring parameters and to assess statistically significant increases. As other critical elements of the Subtitle D program are predicated on compliance certifications by thes e technical professionals, there is no reason not to authorize these professionals to identify and certify, where appropriate, necessary adjustments to the groundwater monitoring parameters based on site

- specific factors. Therefore, Avista recommends that EPA include language in the Subtitle D groundwater monitoring rules for CCR disposal units similar to that in the MSWLFs rules allowing for the state or a registered professional (in the context of a self

- implementing Subtitle D rule) to delete any consti tuents from otherwise required groundwater monitoring “if it can be shown that the removed constituents are not reasonably expected to be in or derived from the waste contained in161

the unit.” 40 C.F.R. § 258.54(a)(1). Similarly, the state or a registered pr ofessional should be authorized to establish an alternative list of indicator parameters in lieu of some or all of the otherwise specified indicator parameters “if the alternative parameters provide a reliable indication of inorganic releases from the [CCR ] unit to the groundwater.” Id . at 258.54(a)(2).

Response: EPA generally agrees that it would be ideal to establish a monitoring program specifically tailored to account for individual site conditions. However, as noted previously, due

to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only auth orized to establish minimum national standards under sections 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring program to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be “n o reasonable probability of adverse effects on health or the environment” nationwide. This means that EPA must design the program to account for the range of conditions at sites across the country

– both those that are

more sensitive and those that are le ss sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requirement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human

health and the environment across the country. EPA accomplished this through a combination of performance standards, which inherently provide flexibility in that it does not specify a single method to achieve the standard, along with a series of specific techni cal parameters to ensure that the performance standard will in fact be met. For example, the detection monitoring parameters are limited in number and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those parameters that are regularly monitored in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate

whether const ituents are leaking from the unit. The assessment monitoring list, which includes a larger number of constituents, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a more extensive monitoring program, the pe rformance standards in §§ 257.91 and 257.93 would in fact requ ire the facility to install one.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08853

- 13 

### Organization: Lower Colorado River Authority (LCRA)


### Commenter : Henry Eby Commenter Type: Electric Utility Facility

Comment Excerpt Text: Furthermore, EPA should establish procedures under both Subtitle C and D to allow for the use of existing groundwater monitoring systems that are equally

- protective and functionally equivalent to the propos ed regulations At FPP, LCRA has conducted groundwater monitoring for over 20 years for our surface impoundments and landfills. The CCR landfill, Ash Surface Impoundment, and Reclaim Pond are sampled quarterly for a list of site

- specific parameters. These p arameters were developed through the testing of a larger suite of parameters from which

site

- specific parameters were developed with the oversight and approval of the TCEQ. It does not seem productive or meaningful for LCRA to "start over" under a new dete ction monitoring162

program if the current system is equivalent. Therefore, LCRA believes that EPA should allow for the continued use of alternative groundwater monitoring systems, indicator parameters, and schedules for units for which groundwater monitoring is being conducted under a state

- approved plan. Under Subtitle C, these alternative systems could be addressed in the site permit. For Subtitle D, LCRA believes it is appropriate to rely on the certification of the alternative system by an independent pro fessional hydrogeologist.

Response: The sections of RCRA that are applicable to CCRs

– sections 1008(a), 4004(a), and 4005(a) only authorize the Agency to establish minimum national criteria with which facilities must comply. EPA’s regulation does not p reclude a state from incorporating the regulatory provisions being finalized today into state law and implementing and enforcing a single set of requirements. Nor does the regulation require the state to enforce the federal requirements, the

decision to br ing an action under 7002 lies entirely within the state’s discretion.

We are not able to require states to develop programs or approve elements of a federal program. While states may have programs for the regulation of CCRs, which in some cases may be more stringent than today’s final rule, the federal program must be written as though states do not have a CCR disposal program in place. Because this rule is self

- implementing and there is no regulatory entity available to judge the reasonableness of the desired alternatives, EPA has determined that it is not able to allow alternatives in most cases, and instead is establishing minimum technical criteria for these units. Since the states can be more stringent, they can require additional monitoring wells, additional aquifers be monitored and additional parameters be added to the detection monitoring list or the assessment monitoring list, for example.

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 manage ment plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09431

- 25 

### Organization: Otter Tail Power Company


### Commenter : Farren Richard Commenter Type: Electric Utility Company

Comment Excerpt Text: Otter Tail Power Company believes that sampling no less frequently than semi

- annually is sufficient to detect potential releases.

Response : Under the proposed rule, monitoring would be required no less frequently than semi

annually. In the final rule, semi

- annual sampling remains the general requirement; howe ver, in response to comments, EPA has decided to include a provision that would allow an alternative sampling frequency if there is not adequate groundwater to flow to sample wells semi

- annually.

The commenter is also referred to Unit VI for a discussio n the specific groundwater monitoring and corrective action requirements included in the rule.163

Section 4.4.7.9

- Assessment monitoring program: required only if detection monitoring (see 4.4.7.8) finds significant increase over background levels (35207)

No substantive comments relating to groundwater monitoring/corrective action are associated

with this issue.

Section 4.4.7.9.1

- EPA solicits comment on appropriateness of list of parameters for GW assessment monitoring program (35207)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 16 

### Organization: We Energies


### Commenter : Art Covi Commenter Type: Electric Utility Company

Comment Excerpt Text: COMMENT: We agree with the inclusion of aluminum, antimony, arsenic, barium, beryllium, boron, cadmium, chloride, chromium, mercury, molybdenum, pH, selenium, sulfate, sulfide, thallium, and total dissolved solids in the proposed list of testing parameters . We agree with the inclusion of copper, fluoride and lead, although they are not particularly useful assessment monitoring constituents for CCP landfills. As stated previously, We Energies monitoring data

shows low fluoride concentrations in our landfill leachate. EPRI field sampling of leachate at 33 CCP management facilities in the US (which included one We Energies facility) did not include fluoride; however, the EPRI results demonstrate that copper and lead have low concentrations in

landfill leachate (see EPRI report 1012578, “Characterization of Field Leachates at Coal Combustion Management Sites”). These EPRI findings are in agreement with We Energies monitoring of lead and copper in landfill leachate over the past 30 years.

The table below provide s statistics on leachate monitoring at We Energies coal ash landfills. Focusing on the 90th percentile and the median (because maximum values often are outliers), these data show that copper and fluoride are always lower than their respective MCL/Action

le vels (fluoride MCL of 4.0 mg/L, copper action level of 1.3 mg/L) in the leachate. While MCLs do not apply to leachate, this comparison demonstrates that an exceedance of a groundwater quality standard in the event of a release is not likely. Lead concentra tions in the leachate are occasionally higher than the Action level of 0.015 mg/L; however, lead is not mobile in groundwater (there are numerous references for low lead mobility under most soil and aquifer conditions including McLean and Bledsoe (1992) “B ehavior of Metals in Soils”, EPA/540/S

92/018). [See original comment for table]

It is suggested that iron and manganese not be included as assessment monitoring constituents because they are ubiquitous in the environment and are highly sensitive to redox conditions. For example, under reduced conditions, iron and manganese can have background concentrations greater than 1 mg/L. EPRI (2002, “Manganese Occurrence near Three Coal Ash impoundments in Illinois”, Technical Report 1005257) research has demonstra ted the natural occurrence of manganese near coal ash impoundments, and iron exhibits similar behavior. If iron and manganese are included as assessment monitoring constituents, then it is likely that naturally

-164

occurring elevated concentrations will be det ected and possibly misconstrued as a release from the CCP facility.

Response: Iron and manganese have been removed from Appendix IV.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 148 

### Organization: Kentucky Department for Environmental Protection


### Commenter : R. Bruce Scott Commenter Type: State Government

Comment Excerpt Text: Kentucky supports the EPA list with two additions. First, calcium should be added to the assessment list for FGD, because it is a major component of FGD wastes. Second, sodium should also be included for older plants, as it is found in ash from plants with older pollution control facilities, based on our experience.

Response: Calcium was added to the list of detection monitoring parameters because of the strong demonstr ated link between the leaching of calcium and arsenic, one of the primary risk

drivers identified in the risk assessment

. Calcium is also an indicator of the extent of leaching from fly ash and FGD gypsum. Sodium may be present in the CCR, but it does not have an MCL nor was it a risk driver in the risk assessment performed for this rule or responsible for any damage cases that the Agency reviewed. Therefore, we are not adding sodium to Appendix IV. However, as always, the states can be more stringent th an the federal rules and could add sodium to the list of monitoring parameters.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 19 

### Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company


### Commenter : Chris M. Hobson Commenter Type: Electric Utility Company

Comment Excerpt Text: Any new standards should allow identification of site

- and facility

- specific parameters for assessment monitoring t o ensure effective monitoring and meaningful results.

In the event increases in constituents over background levels are detected, EPA proposes that a facility would be required to undertake an assessment monitoring program that would assess

levels of alu minum, antimony, arsenic, barium, beryllium, boron, cadmium, chloride, chromium, copper, fluoride, iron, lead, manganese, mercury, molybdenum, pH, selenium, sulphate, sulfide, thallium, and total dissolved solids. [Footnote 65: See id. at 35207.] The foreg oing list of constituents for an assessment monitoring program, however, is over inclusive. Assessment monitoring is by nature an investigative effort

— the list of monitored parameters should be a mutually agreed upon list based upon site

- specific condition s. pH, sulfide and TDS should not be required in assessment monitoring, for the same reasons discussed above with respect to detection monitoring. They are either redundant with field parameters or inconclusive with165

respect to CCB impacts.

Of the list of recommended metals provided above, EPA should limit the list of assessment monitoring constituents to the primary drinking water constituents for which a maximum contaminant level has been established. These are the only materials EPA has found to contrib ute to adverse health effects. On this basis, EPA should remove aluminum, iron, manganese and molybdenum from the list of constituents for assessment monitoring.

Response: EPA generally agrees that it would be ideal to establish a monitoring program

spec ifically tailored to account for individual site conditions. However, as noted previously, due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are authorized under other EPA programs, such as under the regulatory program for MSWLFs. EPA is only authorized to establish minimum national standards under sections 1008(a)(3) and 4004(a). Accordingly, EPA designed the groundwater monitoring prog ram to establish minimum requirements that are necessary to meet the standard in RCRA 4004(a)

– that there be “no reasonable probability of adverse effects on health or the environment” nationwide. This means that EPA must design the program to account fo r the range of conditions at sites across the country

– both those that are more sensitive and those that are less sensitive. While it is theoretically possible that this may result in “overprotection” at some sites (which is inherent in any national requ irement), the monitoring program has been designed to in fact be “the minimum” necessary to protect human health and the environment across the country. EPA accomplished this through a combination of performance standards, which inherently provide flexibi lity in that it does not specify a single method to achieve the standard, along with a series of specific technical parameters to ensure that the performance standard will in fact be met. For example, the detection monitoring parameters

are limited in num ber and are designed to be protective and adequate to determine if constituents are leaking from CCRs and out of the unit. The detection monitoring parameters are those parameters that are regularly monitored in the field when any ground water monitoring is undertaken along with a few constituents (i.e., boron) that are found in CCRs and will indicate whether constituents are leaking from the unit. The assessment monitoring list, which includes a larger number of constituents, is based on what is expected in CCR wastes. However, to the extent that site conditions warrant a more extensive monitoring program, the performance standards in §§257.91 and 257.93 would in fact require the facility to install one.

The assessment monitoring parameter list has been revised to include antimony, arsenic, barium, beryllium, chromium, cobalt, fluoride, lead, mercury, molybdenum, selenium, thallium, and radium 226 and 228 combined. The Agency has determined that these are the constituents that either have MCLs, are likel y to be present in leachate from CCR disposal units, have been responsible for damage cases, and/or have been seen to be relevant in the risk screening the Agency conducted as part of the development of this rule.

Regarding the comment suggesting only those constituents with MCLs be present on Appendix IV, the constituents on Appendix IV in today’s rule all have MCLs with the exceptions of cobalt, lithium and molybdenum. Molybdenum has also been found in a number of proven and potential damage cases an d is important from a risk screening perspective. In the risk assessment, cobalt was found to be a risk driver for certain disposal practices (acidic wastes), so it is being added to166

Appendix IV. Lithium is being added to Appendix IV because it has been d etected in several proven and potential damage cases at levels exceeding EPA’s Regional Screening Level (RSL) of soil to groundwater and has been determined as potentially toxic if consumed conc urrently with certain drug types. 10



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 77 

### Organization: Earthjustice et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text: Once groundwater contamination is detected, facilities will either enter assessment monitoring or

undertake charac terization for corrective action. In these stages, analysis of a complete list of potential contaminants and other water quality indicators is required. Lower detection limits will be required for some of the detection monitoring monitoring parameters, in particular arsenic and possibly thallium. All metals on the Target Analytes List used in RCRA and CERCLA (the “TAL metals”) should be included, plus boron and molybdenum, with detection limits no higher than those specified in the EPA Contract Laboratory P rogram.

It is also essential, in assessment monitoring and in plume characterization for corrective action, to analyze a full suite of general chemistry parameters, including major ions. [Footnote 10: The rationale for these analyses was stated eloquently by S.N. Davis, Where are the rest of the analyses?, Ground Water, vol. 26, pp. 2

- 5 (1988).] The complex chemistry of coal combustion waste leachate, involving many complexation reactions, requires major ion data to understand the site. Additional paramete rs such as volatile and semivolatile organics will be required at sites

where co

- disposal of other wastes has occurred.

Response: The rule provides procedures for sampling monitoring wells and methods for the statistical analysis of groundwater monitoring of Appendix III (detection monitoring) and Appendix IV (assessment monitoring) constituents that may be released from CCR disposal units. The sampling and analysis program must include procedures and documentation for

10 EPA’s Regional Screening Level (RSL) Soil to Groundwater Supporting Table (TR=1E

- 6, HQ=1) May 2014/Mid

atlantic Risk assessment:

http://www.epa.gov/reg3hwmd/risk/human/rb

- concentration_table/Generic_Tables/index.htm ; and
Health Consultation: Chesapeake ATGAS 2H Well Site Leroy Hill Road, Leroy, Leroy Township, Bradford

County, Pennsy lvania, October 29, 2013. U.S. Department of Health and Human Services, Agency for
Toxic Substances and Disease Registry Division of Community Health Investigations Atlanta, Georgia.
www.atsdr.cdc.gov167

sample collection (including the freq uency, water level measurements, well purging, field analyses, and sample withdrawal and collection); sample preservation and handling (including sample containers, sample preservation, sample storage and shipment); chain of custody control; analytical pro cedures (appropriate methods can be found in Test Methods for Evaluating Solid Waste , Physical/Chemical Methods , SW

- 846 (USEPA, 1986), http://www.epa.gov/waste/hazard/testmethods/sw846/online/index.htm ); and quality assurance/quality control. More information and guidance can be found in “Technical Manual Solid Waste Disposal Facility Criteria”, EPA530

- R

- 93

- 017, USEPA, November, 1993, Chapter 5, Subpart E, Ground

- Water Monitoring and Corrective Action, as well as the “Unified Guidance Document: Statistical Analysis of Groundwater Monitoring Data at RCRA Facilities”, March 2009, EPA 530/R

- 09

- 007.

The assessment monitoring parameter list has been revised to include antimony, arsenic, barium, beryllium, chromium, cobalt, fluoride, lead, mercury, molybdenum, selenium, thallium, and radium 226 and 228 combined. The Agency has determined that these are the constituents that either have MCLs, are likely to be present in leachate from CCR disposal units, have been responsible for damage cases, and/or have been seen to be relevant in the risk screening the Agency conducted as part of the development of this rule. The state can require additional parameters be monitored.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06723

- 27 

### Organization: West Virginia Department of Environmental Protection (WVDEP)


### Commenter : Gary Casto on behalf of Randy C. Huffman Commenter Type: State Government

Comment Excerpt Text: Section 257.95 references that the owner or operator can return to detection monitoring if parameters showing statistically significant increases exhibit concentrations less than or equal to background concentrations for said parameters. This section shou ld be revised to instead reference that owner or operator can return to detection monitoring if concentrations of the parameter are no longer statistically significant. This section requires that if a statistically significant increase above background con centrations is observed, the nature and extent of the release must immediately be determined. Rather than immediately requiring that the nature and extent of the release be determined, the owner or operator should be afforded sufficient time

- at
least two consecutive sampling events

- to demonstrate that the statistically significant increase is not due to error in sampling, analysis, statistical evaluation, or natural variability in groundwater quality.

Also, this section references groundwater protecti on standards for those constituents not having MCLs will be the background concentrations for the constituent. Groundwater protection standards should not be established for constituents not having primary MCLs because only primary MCLs are enforceable. Su bsection (f)(1)(ii) requiring the installation of at least one additional well at the facility boundary should be eliminated as the language referenced in subsection (f)(1)(i) requiring additional monitoring wells as necessary is sufficient.168

Response: T he language in § 257.95 is correct. If the concentrations of all constituents listed in Appendix IV are shown to be at or below background values, using the statistical procedures in § 257.93 for two consecutive sampling events, the owner or operator may return to detection monitoring. When assessment monitoring is triggered by a statistically significant increase in one of the detection monitoring parameters, the owner or operator may demonstrate that a source other than the CCR disposal unit caused the statistically significant increase or that the statistically significant increase resulted from an error in sampling, analysis, statistical evaluation, or natural variation in groundwater. The Agency recognizes that it could take more than 90 days in some cases to resample and have laboratories conduct new analyses, or to conduct field investigations to determine that another source is causing the contamination. As a result of that, § 257.94(e)(3) of today’s final rule does not place a time limit for owners and operators to complete the demonstration. However, if after 90 days the owner or operator has not made a successful demonstration, (s)he must begin an assessment monitoring program. Any owner or operator may demonstrate that the statistically si gnificant increase resulted from an error in sampling, analysis, statistical evaluation, or natural variation in groundwater quality, or was caused by a source other than the CCR disposal unit, but this activity does not waive the responsibility of the own er or operator to establish an assessment monitoring program after the allotted timeframe of 90 days. If the demonstration does prove, after assessment monitoring has been initiated, that the contamination was not from the CCR disposal unit or was based o n inaccurate results, the owner or operator may cease assessment monitoring and return to detection monitoring. If the demonstration is successful, the owner or operator is required by §257.94(e)(3) to place a notice in the operating record, and on the in ternet site and send a copy of the report to the State Director. Because today’s final rule is self

- implementing, the owner or operator must have the demonstration certified by a qualified professional engineer.

Groundwater protection standards, whether they are the MCL or the background level, are sufficiently specific such that they are enforceable. Regarding the language in the proposal on installing additional wells, now found in § 257.95(g)(1), it is correct. We are requiring the

installation of a dditional monitoring wells necessary to define the contaminant plume(s); and requiring at least one additional monitoring well be installed at the facility boundary in the direction of contaminant migration.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06833

- 10 

### Organization: Dominion Resources Services, Inc.


### Commenter : Lisa J. Keck on behalf of Pamela Faggert Commenter Type: Electric Utility Company

Comment Excerpt Text: Significant problems with the Subtitle D options include: unrealistically short closure timeframes for CCR surface impoundments that must be closed; unwarranted application of location restrictions to existing CCR surface impoundments; inclusion of inappro priate constituents in the proposed groundwater monitoring program; failure to allow for alternate liner systems for new CCR disposal facilities; failure to allow professional engineers that are employees of the owner/operator of the disposal unit to make compliance certifications; and an overly broad1 69

definition of "CCR Surface Impoundment or impoundment", which inappropriately captures impoundments that arc not designed to manage or store CCRs.

Response : Regarding the inappropriate constituents in the g roundwater monitoring program, EPA selected contaminants for the detection monitoring phase that are present in CCRs and would move rapidly through the subsurface, such as boron and sulfate. By requiring monitoring of these key parameters, including pH, T DS, fluoride and chloride, which are long proven as precursor contaminants to higher toxicity CCR contaminants, leakage from CCR disposal units will be caught in a timely manner. In other words, these are the contaminants that would be expected to be dete cted earliest in any monitoring program. Detection of any of these “early warning” contaminants triggers a switch to assessment monitoring involving a more comprehensive list of contaminants, (including a variety of metals, anions, and radioactivity

sourc es, selected on the merits of constituting primary or secondary MCLs and/or their prevalence in documented damage cases).



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06956

- 11 

### Organization: Tri

- State Generation & Transmission


### Commenter : Barbara A. Walz Commenter Type: Electric Utility Company

Comment Excerpt Text:

Tri

- State G&T also urges EPA to limit the list of assessment monitoring constituents to the primary drinking water constituents for which a maximum contaminant level has been established (as w ell as the detection monitoring parameters, as addressed above). These primary constituents are the only materials EPA has found that contribute to adverse health effects; all

other listed constituents have not been linked to health effects and EPA should not require groundwater remediation for these parameters. Accordingly, EPA should remove aluminum, iron, manganese and molybdenum from the list of constituents for assessment monitoring

.

Response: Regarding the comment suggesting only those constituents with MCLs be present on Appendix IV, the constituents on Appendix IV in today’s rule all have MCLs with the exceptions of cobalt, lithium and molybdenum. Molybdenum has also been found in a number of proven and potential damage cases and is important from a risk screening perspective. In the risk assessment, cobalt was found to be a risk driver for certain disposal practices (acidic wastes), so it is being added to Appendix IV. Lithium is being added to Appendix IV because it has been

detected in several proven and potential damage cases at levels exceeding EPA’s Regional Screening Level (RSL) of soil to groundwater and has been determined as potentially toxic if

consumed conc urrently with certain drug types. 11

11 EPA’s Regional Screening Level (RSL) Soil to Groundwater Supporting Table (TR=1E

- 6, HQ=1) May 2014/Mid

atlantic Risk assessment:

http://www.epa.gov/reg 3hwmd/risk/human/rb

- concentration_table/Generic_Tables/index.htm ; and
Health Consultation: Chesapeake ATGAS 2H Well Site Leroy Hill Road, Leroy, Leroy Township, Bradford
County, Pennsylvania, October 29, 2013. U.S. Department of Health and Human Services, Agency for170



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09431

- 26 

### Organization: Otter Tail Power Company


### Commenter : Farren Richard Commenter Type: Electric Utility Company

Comment Excerpt Text: When a confirmed statistically significant increase (SSI) over background levels is detected, it will be appropriate to enter the assessment monitoring phase. A suspected SSI is not justification enough to move to assessment monitoring. Many variables that can affect an apparent SSI may be able to be resolved in a subsequent detection monitoring samp ling event. Some apparent SSIs have been disproved due to a variety of reasons including: sampler error, improper preservation or sample bottle, laboratory method error, laboratory decimal point error, laboratory rounding

errors, etc.

Once an SSI has been confirmed, the parameter list for Assessment Monitoring would be used. It should be noted that comparisons between both the Detection Monitoring list and the Assessment Monitoring list show that all of the Detection Monitoring parameters are included in

t he Assessment Monitoring parameters except for conductivity. It is Otter Tail Power Company’s experience that conductivity is tested in the field as a well stabilization parameter during the well purging process prior to sample collection, and conductivity would likely be available to the utilities as an Assessment Monitoring parameter if the EPA should choose to add it to the Assessment Monitoring parameter list. Conversely, since chlorides and TDS are already being tested under both Detection Monitoring a nd Assessment monitoring, perhaps conductivity can be eliminated from both of these lists as chlorides and TDS will likely capture the same trends that conductivity would impart on the respective parameter lists.

Response: During assessment monitoring, all the detection monitoring parameters will continue

to be monitored. The Agency has deleted conductivity from the detection monitoring program because it is merely a proxy for TDS, which is already included on the list of parameters to analyze during detection monitoring.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 26 

### Organization: Progress Energy, Inc.


### Commenter : Caroline Choi

Toxic Substances and Disease Registry Division of Community Health Investigations Atlanta, Georgia.
www.atsdr.cdc.gov171

Commenter Type: Electric Utility Company

Comment Excerpt Text: Progress Energy also urges EPA to limit the list of assessment monitoring constituents to the primary drinking water constituents for which an MCL has been established. These primary constituents are the only materials EPA has found to contribute to adverse health effects; all

other li sted constituents have not been linked to health effects, and EPA should not require groundwater remediation for these parameters. Accordingly, EPA should remove aluminum, iron, manganese and molybdenum from the list of constituents for assessment monitori ng

.

Response: T he constituents on Appendix IV in today’s rule all have MCLs with the exceptions of cobalt, lithium and molybdenum. Molybdenum has also been found in a number of proven and potential damage cases and is important from a risk screening pers pective. In the risk assessment, cobalt was found to be a risk driver for certain disposal practices (acidic wastes), so it is being added to Appendix IV. Lithium is being added to Appendix IV because it has been detected in several proven and potential damage cases at levels exceeding EPA’s Regional Screening Level (RSL) of soil to groundwater and has been determined as potentially toxic if

consumed conc urrently with certain drug types. 12

Section 4.4.7.9.2

- EPA solicits comment on whether to allow optio ns such as sampling a subset of wells, deletion of assessment parameters, or alternative sampling frequencies, and if such options are appropriate for CCR LFs and SIs (35207)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 17 

### Organization: We Energies


### Commenter : Art Covi Commenter Type: Electric Utility Company

Comment Excerpt Text: It appears that EPA has concluded that there are no creditable state level regulatory programs

12 EPA’s Regional Screening Level (RSL) Soil to Groundwater Supporting Table (TR=1E

- 6, HQ=1) May 2014/Mid

atlantic Risk assessment:

http://www.epa.gov/reg3hwmd/risk/human/rb

- concentration_table/Generic_Tables/index.htm ; and

Health Cons ultation: Chesapeake ATGAS 2H Well Site Leroy Hill Road, Leroy, Leroy Township, Bradford
County, Pennsylvania, October 29, 2013. U.S. Department of Health and Human Services, Agency for
Toxic Substances and Disease Registry Division of Community Health In vestigations Atlanta, Georgia.
www.atsdr.cdc.gov172

which properly regulate CCRs, a position which we strongly disagree with. The proposed rule should allow operations under an alternative standard where there is state regulatory program oversight with mechanisms in place to ensure modifications are technically appropriate.

Response: Due to the fact that EPA cannot require states t o develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are allowed in other EPA programs, such as under the regulatory program for MSWLFs. The Agency does not believe allowing alternate gr oundwater monitoring programs would be workable in the context

of a self

- implementing rule, because there is no regulatory entity to judge the reasonableness of the desired alternatives. The requirements of the groundwater monitoring program in this rule allow as much flexibility as we believe we can accommodate, given the lack of oversight by a permitting authority, and the need to demonstrate that the rule provisions will achieve section 4004(a)’s statutory standard.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 20 

### Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company


### Commenter : Chris M. Hobson Commenter Type: Electric Utility Company

Comment Excerpt Text: Any requirement to sample for regulated metals should be supplemented with opportunities for “Alternate Source” demonstrations. CCB storage facilities may exist in proximity to other sources of contamination, and opp ortunities to determine the source of contamination should be provided prior to any remedial action. The nature of this demonstration should be negotiated with the regulatory agency based upon site conditions, the nature of materials being stored, and

the technology available to determine sources of contaminants in groundwater. If, during the course of assessment monitoring, statistically significant increases above background concentrations are no longer detected, then assessment monitoring should disconti nue.

Ambient groundwater at certain sites can have naturally elevated levels of chloride, sulfate and TDS. In such cases, the presence of brackish water in groundwater monitoring wells may not itself be a problem or indicative of a problem. Rather, it in dicates a challenge to existing laboratory analysis methods for release detection monitoring. As such, the sensitivity for release monitoring is eroded, so that statistical confidence bands need to be broadened in order to avoid

false indications of releas e. As a result, more data points and time would also be required to

ensure statistical confidence.

EPA has also specifically questioned whether to allow sampling of a subset of wells for purposes of assessment monitoring. EPA should allow for site

- specif ic consideration of monitoring of a subset of the wells at a site. Facilities often cover acres of land area and detection monitoring may indicate a potential impact in only a subset of wells. Detection monitoring parameters are established because they ar e the most reliable indicators of potential impact. Requiring an extended assessment monitoring parameter list for wells that do not show potential impacts negates the intended and most useful purpose of detection monitoring.173

Further, EPA should allow th e deletion of certain assessment monitoring parameters in order to take into account variations in local geology, hydrology, and facility history, including the type or types of coal burned. A flexible approach that uses local and facility

- specific informa tion to develop parameter lists in a more strategic fashion will be the most effective

.

Response: After a statistically significant increase has been detected, the Agency allows for the owner or operator to demonstrate that the increase was due to sampling and analysis error or another source. The Agency recognizes that in some circumstances it could take more than 90 days to resample and have laboratories conduct new analyses, or to conduct field investigations to determine that another source is causing the contamination. As a result, § 257.94(e)(3) does not place an ultimate time limit for owners and operators to complete the demonstration. However, if after 90 days the owner or operator has not made a successful demonstration, (s) he must begin an assessment monitoring program. At this stage, there is evidence to indicate that a

release has occu rred from the CCR unit, and while EPA agrees that the facility may want to confirm that the information is accurate, it is critical that the facility not delay indefinitely the more targeted monitoring to determine whether a constituent of concern is conta minating groundwater. It would not be consistent with the statutory standard to allow a facility unlimited time to delay taking reasonable steps to assess, and if necessary, address potential contamination by continuing to resample until they obtain a “be tter” answer. Moreover, initiation of an assessment monitoring program does not involve an irretrievable commitment of resources or even a significant investment by the facility, but only requires the facility to begin more targeted sampling for constit uents of concern. This represents a reasonable first step to address a potential threat to ground water.

Regarding the number of samples needed, the commenter is referred to the preamble of the final rule Unit VI.K for more detail. The Agency has incr eased the minimum number of samples

neede d to determine background from four to eight

.

EPA has also revised the regulatory text relating to the number of samples that must be collected during subsequent sampling events after background concentrations hav e been established to clarify how the various provisions collectively operate. Consistent with the proposal, the final rule requires the owner or operator to collect and analyze the number of samples from each well necessary to be consistent with the s tatistical test selected under § 257.93(e) and with the unique characteristics of the site, but at minimum, to collect at least one sample from each background and downgradient well. In cases where the groundwater is “well

- behaved” one sample from

each co mpliance well could be all that the owner or operator would need to conduct the necessary comparisons. But if statistical assumptions are not met (e.g., the observations are not statistically independent or background well data show trends) a comparison b ased on a single observation will not yield a significant result, and will likely result in a false positive. Further, detection monitoring tests, such as Student’s t

- test, look at the difference between the sample means (e.g., upgradient vs downgradient) to determine when an observed difference should be considered more than a chance fluctuation. Every t

- test assumes that the observations that make up each data group meet the requirements of statistical independence and stationarity. Therefore, the larg er the sample size the more significant the result. In other words, a facility can chose to use only one observation (a group size of one), but the chances are good that the result derived

would be non

- significant, since there are many reasons sample means can vary. Consequently, it174

is likely to be in the facility’s best interest to take more samples than the minimum, particularly in the early stages of monitoring. As monitoring continues, each successive sample will be added to the sampling data base, wh ich will increase the confidence in the statistical analyses performed. Additional guidance on sample size can be found in the Unified Guidance Document: Statistical Analysis of Groundwater Monitoring Data at RCRA Facilities ,” March
2009, EPA 530/R

- 09

- 007

.

Due to the fact that EPA cannot require states to develop a permitting program for this regulation, we are not able to allow many of the site

- specific flexibilities that are allowed in other EPA programs, such as under the regulatory program for MSWLF s. The Agency does not believe allowing the deletion of monitoring parameters would be workable in the context of a

self

- implementing rule, because there is no regulatory entity to judge the reasonableness of the desired alternatives. The requirements of the groundwater monitoring program in this rule allow as much flexibility as we believe we can accommodate, given the lack of oversight by a permitting authority, and the need to demonstrate that the rule provisions will achieve section 4004(a)’s statutor y standard.

The commenter is referred to Unit VI.K of the preamble to the final rule for a complete discussion on the groundwater monitoring requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 70 

### Organization: Earthjustice et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text: Design of monitoring systems is discussed in USEPA guidance and technical publications. Minimum requirements in regulations are only minimums, applicable to the simplest situations.

Real

- worl d disposal sites usually require more extensive monitoring; as USEPA has stated in its guidance:

Typically, site hydrogeology is too complex or the hazardous waste unit is too large for the regulatory minimum number of wells to prove adequate in achieving the performance objectives of a detection monitoring system.[Footnote 6: E.g., RCRA Ground

- water monitoring technical enforcement guidance document, USEPA report OSWER 9950.1, September 1986, quotation from p. 45; M.N. Sara, Ground

- water monitoring system design, in D.M. Nielsen, ed., Practical

Handbook of Ground

- Water Monitoring, Lewis Publishers, 1991, pp. 17

- 68.]

Because groundwater mounds frequently form beneath landfills,[Footnote 7: R.A. Freeze and J.A. Cherry, Groundwater, Prentice

- Hall, Englewood Cliffs, NJ, 1979, p. 436.] one cannot ensure that a “background” well is unaffected by waste disposal by putting the well on the upgradient side of the landfill as determined from the regional hydraulic gradient. This can only be

evaluated on a site

- by

- sit e basis

— another reason why regulation under Subtitle D is sure to be

ineffective.

That said, minimum requirements for the frequency and location of monitoring events are needed175

in the regulati ons.

Frequency

- Given the seasonality of shallow groundwate r flow, all monitoring of coal combustion waste sites should be at least quarterly. For analysis of metals by ICP

- AES, the analytical costs are particularly low and any reasonable objection on that basis is eliminated.

Response: The commenter is correct, the requirements in today’s rule are indeed just minimums. We fully expect the owner or operator, qualified professional engineer, and state to “supplement” those minimums to adequately represent site

- specific conditions. Indeed, that is

what the rule h as required, whether it is the number of monitoring wells or the frequency of monitoring, for example. For more detail on the groundwater monitoring program, the commenter is referred to Unit VI.K of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 62 

### Organization 1 

### : Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC)


### Commenter 1 : Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Comment Excerpt Text: Regarding the request on pp. 35206

- 35207 under assessment monitoring, we object to the lack of authority for State agencies to approve an alternative list of indicator parameters, for States that have effective groundwater monitoring authority and rules and that have a demonstrable history of collecting and archiving groundwater monitoring data. We object to a requirement that only an independent PE or hydrologist to can decide if an alternative list of detection parameters is acceptable.

We have simila r concerns with the proposed requirements for groundwater assessment monitoring. The list of parameters may be suitable in general terms, but there should be flexibility for State agencies to require use of other parameters if site

- specific waste

character ization indicates that parameters not on the proposed list would be useful for defining contamination patterns caused by the waste. As with previous comments, we believe that States that have effective groundwater monitoring authority and rules and that ha ve a demonstrable history of collecting and archiving groundwater monitoring data should be allowed to review proposals for alternative assessment monitoring parameters.

Response: Due to the fact that EPA cannot require states to develop a permitting pro gram for this regulation, we are not able to allow many of the site

- specific flexibilities that are allowed in other EPA programs, such as under the regulatory program for MSWLFs. The Agency does not believe allowing alternate groundwater monitoring progr ams would be workable in the context

of a self

- implementing rule, because there is no regulatory entity to judge the reasonableness of the desired alternatives. The requirements of the groundwater monitoring program in this rule allow as much flexibility as we believe we can accommodate, given the lack of oversight by a permitting authority, and the need to demonstrate that the rule provisions will achieve section 4004(a)’s statutory standard.176

The commenter is referred to Units IV and V of the preamble di scussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid waste management plans.

Section 4.4.7.10

- Assessment of corrective action measures/remedies (35207)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10495

- 64 

### Organization: Earthjustice, et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text: The absence of facility

- wide corrective action standards is a fatal flaw in EPA’s proposed subtitle D regulations. Given the magnitude of historic dumping on power plant properties, it is a gross oversight not to requ ire an investigation of all onsite disposal facilities, both operating and retired. Section III.C.2.h. supra, discusses the substantial risks posed by retired dumps. The absence of a requirement in the subtitle D scheme to address this risk fails to establ ish a reasonable probability that there will be no adverse impact on heath or the environment.

Response: EPA lacks the authority to require the kind of “facility

- wide” corrective action that is required under the subtitle C, hazardous waste program, as p art of the minimum national standards issued pursuant to sections 1008(a)(3) and 4004(a). Congress expressly required “facility wide corrective action,” under section 3004(u), requiring cleanup of more extensive

sources of contaminants and from a wider ar ray of activities than are covered under section 4004(a). Specifically, section 3004(u) states “standards promulgated under this section and a permit...shall require corrective action for all releases of hazardous waste or hazardous waste

constituents from any solid waste management unit...regardless of the time at which waste was put in such unit.” See also, 3004(v). By contrast, section 4004(a) only authorizes EPA to develop standards that address the risks of “adverse effects from disposal of solid waste at such facility.”

Section 4.4.7.10.1

- EPA solicits comment on appropriateness of 90

- day timeframe to complete assessment of corrective measures (35207)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 18 

### Organization: We Energies


### Commenter : Art Covi Commenter Type: Electric Utility Company

Comment Excerpt Text: COMMENT: A 90 day limit for assessment (upon determining that an exceedance of a groundwater protection standard is statistically significant) is not adequate for proper177

consideration of corre ctive measures. Additional study may be required in order to assess potential contributing offsite sources, background levels and complex hydrogeology. Potential corrective measures may be more complex due to these impacts or may require more fieldwork

to answer important questions regarding site characterization, feasibility of implementing corrective measures and efficacy of those measures. As a comparison with the use of the “reasonable period of time” language in the MSWLF criteria recognizes the need f or site specific considerations and the potential study of mitigating factors. EPA notes a concern that without a finite time period stated, and without state oversight under a Subtitle D approach, there may be abuse of the rule and an unwarranted delay in conducting an appropriate assessment of corrective measures. We would argue that setting an arbitrary time schedule on the process would not result in a careful and complete result. Wisconsin regulations regarding assessment and implementation

of remedial actions recognizes the need for site specific, flexible project management under NR 700 and NR 500 for WDNR administration. We propose a 180 day timeframe for this purpose, with the ability for state regulatory review and modification for case specific ex ceptions.

Response: EPA is adopting a provision that will allow for a single 60

- day extension. As explained in the “ Technical Manual Solid Waste Disposal Facility Criteria,” EPA530

- R

- 93

- 017, USEPA, November, 1993, Chapter 5, Subpart E, Ground

- Water Monitoring and Corrective

Action

, the owner or operator will need to: (1) identify and remediate the source of contamination; and (2) identify and remediate the known contamination. The factors that must be considered in assessing corrective measures incl ude source evaluation, plume delineation, groundwater assessment and source control. Based on the comments received, as well as the Agency’s own experience, EPA recognizes that there may be complex situations that require more time to develop a careful an d well

- thought out corrective measures assessment. Therefore, the final rule has been modified to allow up to an additional 60 days to complete the assessment of corrective measures, provided that a qualified professional engineer certifies that the

addit ional time is necessary. The initial 90 days plus the additional 60 days would provide the owner or operator up to 150 days to complete the corrective measures assessment, which EPA expects will be sufficient. The certification must be placed in the opera ting record, on the owner’s or operator’s web site and submitted to the proper state official.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 149 

### Organization: Kentucky Department for Environmental Protection


### Commenter : R. Bruce Scott Commenter Type: State Government

Comment Excerpt Text: Again, Kentucky would only support a variance from the 90 day standard only if prescriptive Subtitle D regulations are in place at the state level to control the variance process.

Response: EPA is adopting a provision that will allow for a single 60

- day extension. As explained in the “ Technical Manual Solid Waste Disposal Facility Criteria,” EPA530

- R

- 93

- 017, USEPA, November, 1993, Chapter 5, Subpart E, Ground

- Water Monitoring and Correctiv e Action

, the owner or operator will need to: (1) identify and remediate the source of contamination; and (2) identify and remediate the known contamination. The factors that must be considered in assessing corrective measures include source evaluation, p lume delineation,178

groundwater assessment and source control. Based on the comments received, as well as the Agency’s own experience, EPA recognizes that there may be complex situations that require more time to develop a careful and well

- thought out corre ctive measures assessment. Therefore, the final rule has been modified to allow up to an additional 60 days to complete the assessment of corrective measures, provided that a qualified professional engineer certifies that the additional time is necessary. The initial 90 days plus the additional 60 days would provide the owner or operator up to 150 days to complete the corrective measures assessment, which EPA expects will be sufficient. The certification must be placed in the operating record, on the

owne r’s or operator’s web site and submitted to the proper state official.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 21 

### Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power C ompany, and Mississippi Power Company


### Commenter : Chris M. Hobson Commenter Type: Electric Utility Company

Comment Excerpt Text: Corrective Measures and Response Actions: Any New Standards Should Reflect Operational

Realities.

Ninety days is clearly insufficient to assess corrective measures.

EPA proposes a 90

- day time frame for assessment of corrective measures. [Footnote 66: See id. at 35207.] While a finite time frame for completion of the assessment of corrective measures is reasonable, the propo sed 90

- day period is insufficient. At a minimum, EPA should provide a period of 120 to 180 days. The added days would allow for the collection and analysis of additional samples to verify that sampling procedures and/or analyses were conducted correctly.

Further, depending on the circumstance, it could be necessary to rule out (or prove) the possibility of contamination originating from a source other than the CCB disposal area. As EPA indicates in its MSWLF rules, “The owner/operator may demonstrate that a source other than a MSWLF unit caused the contamination or that the statistically significant increase resulted from error in sampling, analysis, statistical evaluation, or natural variation in groundwater quality.” [Footnote 67: 40 C.F.R. 258.54(c)(3). ] EPA’s regulations provide an additional 90 days for this purpose. EPA has not explained why this practice, which EPA has already adopted in the context of MSWLF regulations, should not also be adopted in the context of CCBs.

Southern Company requests c larification on several points with respect to the proposed Subtitle D standards. First, we urge EPA to clarify what constitutes a statistically significant exceedance of the groundwater standards. EPA should allow sampling at a specified interval over a p eriod of time in order to collect a data set that more accurately represents the groundwater conditions at the site. It is not realistic or appropriate to suggest that a single sample in excess of a standard constitutes an exceedance without placing that i n the context of site

- specific conditions.

Second, Southern Company urges EPA to clarify the number of samples required when establishing background constituent concentrations or to allow some exercise of professional179

judgment by qualified, licensed pers onnel. Section 257.93(i) of the proposed regulations provides that statistically significant increases are determined by comparing testing results with background data. Some amount of professional judgment may be required to determine how many samples are sufficient to provide confidence as to the state of background conditions and whether there is a statistically significant increase from background.

Third, Southern Company seeks clarification on when the proposed 90

- day time frame to complete the assess ment would commence (while again reiterating that EPA should allow additional time). EPA should clarify when exactly notice to regulatory authorities is required, i.e., how long after the establishment of an exceedance, and when the assessment period

comme nces, i.e., upon the receipt of analytical data or notice to the regulatory authorities.

Response: EPA is adopting a provision that will allow for a single 60

- day extension. As explained in the “ Technical Manual Solid Waste Disposal Facility Criteria,” EPA530

- R

- 93

- 017, USEPA, November, 1993, Chapter 5, Subpart E, Ground

- Water Monitoring and Corrective

Action

, the owner or operator will need to: (1) identify and remediate the source of contamination; and (2) identify and remediate the known contamination . The factors that must be considered in assessing corrective measures include source evaluation, plume delineation, groundwater assessment and source control. Based on the comments received, as well as the Agency’s own experience, EPA recognizes that th ere may be complex situations that require more time to develop a careful and well

- thought out corrective measures assessment. Therefore, the final rule has been modified to allow up to an additional 60 days to complete the assessment

of corrective measur es, provided that a qualified professional engineer certifies that the additional time is necessary. The initial 90 days plus the additional 60 days would provide the owner or operator up to 150 days to complete the corrective measures assessment, which E PA expects will be sufficient. The certification must be placed in the operating record, on the owner’s or operator’s web site and submitted to the proper state official.

Regarding the question of what constitutes a statistically significant increase, we believe the commenter misunderstood the proposed rule since a single sample in excess of the standard does not constitute a statistically significant exceedance of the groundwater protection standard. Sampling is conducted over a period of time. The stati stically significant exceedance is determined by evaluating the data using one of the statistical methods in §257.93(f), and requires a minimum of eight independent samples the first time sampling is done for a particular constituent or parameter. Therefor e, this will require the owner or operator to collect eight samples from each well before the first statistical test can be performed, or in other words, collect eight samples from each well during the initial phase of monitoring for each parameter.

These samples will be used to establish background levels. During subsequent sampling events after background concentrations have been established, today’s final rule requires a minimum of one sample from each well. Additional samples may be required depending on the statistical method used (§257.93(e)). In addition, in §§257.94(d)(3) and 257.95(f)(2), the proposed rule provided the facility an opportunity to demonstrate that a source other than the CCR disposal unit caused the increase, or that the increase re sulted from an error or natural variation. The Agency is establishing the same scheme in today’s final rule.180

EPA agrees that there may be situations where 90 days is insufficient for the assessment of corrective measures (see comment directly above), and is now allowing the owner or operator to request an additional 60 days. The 90 day (or 150 day, if additional time has been allowed) timeframe for the assessment of corrective measures begins when the owner or operator has receipt of the data from the sa mpling and using the statistical method chosen and has determined that there is a statistically significant increase over the groundwater protection standard for one or more Appendix IV constituents (§257.95(f)). At the same time this 90 day clock begins, the owner or operator has 14 days to place a notice in the operating record and on their internet site that identifies the Appendix IV constituents that have exceeded the groundwater protection

standard. This notice must also be sent to the State Director

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 111 

### Organization 1 

### : Earthjustice et. al.



### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text: Is the proposed timeframe for corrective actions, which includes 90 days for selection of remedies, appropriate?

No. The selection of remedy for corrective action should be decided immediately upon identification of the conditions that would trigger the need for a remedy. For each facility, the owner or operator should prepare a contingency plan indicating what constitutes the need for corrective action, what conditions or concentrations trigger the need for corrective action, and

one or more decision tre es for the selection of required remedy. This contingency plan should be required prior to the start of construction of a new facility and be completed at the earliest opportunity for existing facilities.

Response: O nce the assessment of corrective meas ures has been completed within the timeframe specified in this rule, and the public meeting has occurred, the facility owner/operator must select a remedy and begin implementing that remedy as soon as is practicable. It is vitally important that the facil ity selects a remedy as soon as practicable and begins designing and implementing that remedy, so that releases to groundwater are addressed without unnecessary delay. T here are a variety of activities that may be necessary in order to select the appropriate remedy (e.g., discussions with affected citizens, state and local governments; conducting on

- site studies or pilot projects , securing on

- site utilities as needed, obtaining any necessary permits, etc.). That is why EPA does not find it ap propriate to set specific timeframes for selecting the remedy. However, in order to ensure that the community is kept informed as to the progress of selecting and implementing the remedy, EPA is requiring that the facility owner/operator, on a

semi

- annual basis, post status reports/updates on their progress to their website and submit these

to the state.181



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 63 

### Organization: Wisconsin Department of Natural Resources (WI DNR) and Public Service

Commission of Wiscons in (WI PSC)


### Commenter : Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government

Comment Excerpt Text: Regarding the discussion on p. 35207 of the preamble about corrective actions required in 90 days and the 3 year time period fo r implementation of a remedy, the generic time periods proposed may be sufficient in a number of cases, but a complex situation may well require additional time. We believe that States that have effective groundwater monitoring authority and

rules and that have a demonstrable history of collecting and archiving groundwater monitoring data should be allowed to review proposals for a longer time period, if technically justified. We object to a requirement that only an independent PE or hydrologist to can deci de if a longer time period is justified.

Response: Corrective action is not required to be completed in 90 days; an assessment of corrective measures is to be completed within 90 days (with a possible extension of 60 days, see comment above from the Southern Company). The three year time frame is not fo r implementation of a remedy, but the time required after the remedy is complete to demonstrate that groundwater protection standards have not been exceeded for a period of three consecutive

years.

The commenter is referred to Units IV and V of the preamb le 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 incorporat e the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 51 

### Organization: NiSource Corporate Services


### Commenter : Dale A. Helmers Commenter Type: Electric Utility Company

Comment Excerpt Text:

Assessment Of Corrective Measures (40 C.F.R. § 257.96)

The requirement to complete an assessment of potential corrective measures within 90 days of initiating such an analysis is unreasonably short. Experience has shown that remedy alternatives are frequently not simpl e. Furthermore, it is not unusual to have to collect additional field data before a remedy can be selected. Identification of remedy alternatives, collection and analysis of data used to evaluate remedy alternatives, and discussions with vendors/contractor s regarding availability of labor and materials are all critical steps in the remedy selection process. 270 days

should be allowed.

Response: EPA agrees that there may be situations where 90 days is insufficient for the

assessment of corrective measures (see comment directly above), and is now allowing the owner182

or operator to request an additional 60 days. The 90 day (or 150 day, if additional time has been allowed) timeframe for the assessment of corrective measures begins when the owner or operator

ha s receipt of the data from the sampling and using the statistical method chosen and has determined that there is a statistically significant increase over the groundwater protection standard for one or more Appendix IV constituents (§ 257.95(f)). At the sa me time this 90 day clock begins, the owner or operator has 14 days to place a notice in the operating record and on their internet site that identifies the Appendix IV constituents that have exceeded the groundwater protection standard. This notice must also be sent to the State Director.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06532

- 40 

### Organization: Southern Illinois Power Cooperative


### Commenter : Leonard F. Hopkins Commenter Type: Electric Utility Company

Comment Excerpt Text:

Assessment Of Corrective Measures (40 C.F.R. § 257.96)

The requirement to complete an assessment of potential corrective measures within 90 days of initiating such an analysis is unreasonably short. Experience has shown that remedy alternatives are frequently not simple. Furtherm ore, it is not unusual to have to collect additional field data before a remedy can be selected. Identification of remedy alternatives, collection and analysis of data used to evaluate remedy alternatives, and discussions with vendors/contractors regarding availability of labor and materials are all critical steps in the remedy selection process. 270 days

should be allowed.

Response: EPA agrees that there may be situations where 90 days is insufficient for the assessment of corrective measures (see commen t directly above), and is now allowing the owner or operator to request an additional 60 days. The 90 day (or 150 day, if additional time has been allowed) timeframe for the assessment of corrective measures begins when the owner or operator has receipt o f the data from the sampling and using the statistical method chosen and has determined that there is a statistically significant increase over the groundwater protection standard for one or more Appendix IV constituents (§ 257.95(f)). At the same time thi s 90 day clock begins, the owner or operator has 14 days to place a notice in the operating record and on their internet site that identifies the Appendix IV constituents that have exceeded the groundwater protection standard. This notice must also be sen t to the State Director.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06723

- 28 

### Organization: West Virginia Department of Environmental Protection (WVDEP)


### Commenter : Gary Casto on behalf of Randy C. Huffman Commenter Type: State Government

Comment Excerpt Text: Section 257.96 requires that if a statistically significant increase has been documented a corrective action assessment must be completed within ninety days. Rather than immediately requiring that the nature and extent of the release be determined, the ow ner or operator should be

afforded sufficient time

- at least two consecutive sampling events

- to demonstrate that the183

statistically significant increase is not due to error in sampling, analysis, statistical evaluation, or natural variability in groundwa ter quality. This section states that the owner or operator must discuss the results of the corrective measures assessment prior to the selection of a remedy in a public meeting with interested and affected parties. This statement is somewhat misleading an d should instead state that the owner or operator must discuss possible remedies. Possible remedies should be provided to the state regulatory agency for review and approval. The state regulatory agency should then make the possible remedies available for comment during a 30 day public notification period following by a public hearing if the regulatory agency determines that the public comments received during the public notification period warrant a public hearing.

Response: Once an owner or operator is in assessment monitoring, they must initially sample for Appendix IV constituents, resample within 90 days and then continue sampling semiannually for any Appendix IV constituents that are initially detected and all Appendix III parameters. If the

owner o r operator determines that there is a statistically significant increase over groundwater protection standards for any Appendix IV constituent, the owner or operator of the CCR disposal facility must initiate an assessment of corrective measures within 90 days, and complete the assessment within 90 days (with one possible 60 day extension). However, the owner or operator of the CCR disposal facility may demonstrate that a source other than their CCR unit caused the contamination or that the statistically s ignificant increase above ground water protection standards resulted from error in sampling, analysis, statistical evaluation, or natural variation in groundwater quality. Until that demonstration is made, however, the owner or operator of the CCR disposa l facility must comply with the other requirements of this section, including initiating the assessment of corrective measures. The 90 days allowed for this demonstration, before the assessment of corrective measures must start, should be time enough

in m ost instances to conduct at least two sampling events, as suggested by the commenter. Once the 90 days have passed, until that demonstration is made, the owner or operator of the CCR disposal facility must comply with the other requirements of this section , including initiating the assessment of corrective measures. In other words, any owner or operator may demonstrate that the statistically significant increase resulted from an error in sampling, analysis, statistical evaluation, or natural variation in gr oundwater quality, or was caused by a source other than the CCR disposal unit, but this activity does not waive the responsibility of the owner or operator to initiate corrective action after the allotted timeframe of 90 days. If the concentrations of all Appendix IV constituents are shown to be at or below background values, using the statistical procedures in § 257.93(g), for two consecutive events, the owner or operator may return to detection monitoring. If the concentrations of any Appendix IV constitu ents are above background values, but all concentrations are below the groundwater protection standards using the statistical procedures in § 257.93(g), the owner or operator must continue assessment monitoring. Thus, there is time built in to the phased approach of monitoring that is being promulgated today that gives the owner or operator ample time to resample and/or demonstrate that the exceedance is due to another source or sampling and analysis error.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 74 

### Organization: Prairie State Generating Company, LLC (PSGC)


### Commenter : Keith Bastian Commenter Type: Electric Utility Company184

Comment Excerpt Text: Assessment of Corrective Measures (40 C.F.R. § 257.96) The requirement to complete an assessment of potentia l corrective measures within 90 days of initiating such an analysis is unreasonably short. Experience has shown that remedy alternatives are frequently not simple. Furthermore, it is not unusual to have to collect additional field data before a remedy can be selected. Identification of remedy alternatives, collection and analysis of data used to evaluate remedy alternatives, and discussions with vendors/contractors regarding availability of labor and materials are all critical steps in tile remedy selection process. 270 days

should be allowed.

Response: EPA agrees that there may be situations where 90 days is insufficient for the assessment of corrective measures (see comment directly above), and is now allowing the owner or operator to request an addition al 60 days. The 90 day (or 150 day, if additional time has been allowed) timeframe for the assessment of corrective measures begins when the owner or operator has receipt of the data from the sampling and using the statistical method chosen and has

determ ined that there is a statistically significant increase over the groundwater protection standard for one or more Appendix IV constituents (§ 257.95(f)). At the same time this 90 day clock begins, the owner or operator has 14 days to place a notice in the operating record and on their internet site that identifies the Appendix IV constituents that have exceeded the groundwater protection standard. This notice must also be sent to the State Director.

Section 4.4.7.11

- Selection of remedy: proposed framework based on existing requirements for MSWLFs and CESQGs with modifications (35207)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 52 

### Organization: NiSource Corporate Services


### Commenter : Dale A. Helmers Commenter Type: Electric Utility Company

Comme nt Excerpt Text: Section of Remedy (40 C.F.R. § 257.97)

Costs should be a factor when evaluating various remedies. Section 257.96(b) requires the owner/operator to assess costs but when evaluating the various remedies in accordance with

Section 257.96 costs are not considered. Consistent with Section 257.96, costs should be a factor in evaluating corrective measures.

Response: § 257.96(c) allows the assessment to include an analysis of the effectiveness of potential corrective measures in meeting all of the requirements and objectives of the remedy as described under § 257.97. However, Congress did not authorize the consideration of costs in establishing minimum national standards under section 4004(a). The only considerations that are

relevant are w hether the measures will ensure there will be no reasonable probability of adverse

effects on health or the environment.185



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06532

- 41 

### Organization: Southern Illinois Power Cooperative


### Commenter : Leonard F. Hopkins Commenter Type: Electric Utility Company

Comment Excerpt Text: Section of Remedy (40 C.F.R. § 257.97)

Costs should be a factor when evaluating various remedies. Section 257.96(b) requires the owner/operator to assess costs but when evaluating the various remedies in accordance with Section 257.96 costs are not considered. Consistent with Section 257.96, costs should be a factor in evaluating corrective measures.

Response: § 257.96(c) allows the assessment to include an analysis of the effectiveness of

p otential corrective measures in meeting all of the requirements and objectives of the remedy as described under § 257.97. However, Congress did not authorize the consideration of costs in establishing minimum national standards under section 4004(a). The only considerations that are relevant are whether the measures will ensure there will be no reasonable probability of adverse

effects on health or the environment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06723

- 29 

### Organization: West Virginia Department of Environmental Protection (WVDEP)


### Commenter : Gary Casto on behalf of Randy C. Huffman Commenter Type: State Government

Comment Excerpt Text: Section 257.97(e) specifies circumstances under which the remediation of a release from an Appendix IV constituent is not necessary. If the CCR facility in question qualifies for the exclusion, there is no need to require Section 257.97(f).

Response: EPA determined that this provision, which could be used to justify delaying remediation measures, was potentially subject to abuse and thus, inappropriate to be included in

a self

- implementing rule.

Therefore, EPA deleted the provisions in the proposal, subsections (e) and (f) that would authorize a facility to determine that remediation of a release is not necessary. These sections which came from the MSWLF rule in part 258 are appropriate where there is state oversight. The preamble to the final MSWL F rule specifically discusses situation in which an approved State may decide not to require cleanup of hazardous constituents released to groundwater from a MSWLF (see 56 FR 51090). However, there is no similar guarantee that an individual facility

will act in the public interest.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 75 

### Organization: Prairie State Generating Company, LLC (PSGC)186



### Commenter : Keith Bastian Commenter Type: Electric Utility Company

Comment Excerpt Text: Section of Remedy (40 C.F.R. § 257.97) Costs should be a factor when evaluating various remedies. Section 257.96(b) requires tile owner/operator to assess costs but when evaluating the various remedies in accordance with

Section 257.96 costs are not considered. Consistent with Section 257.96, costs should be a factor in evaluating corrective measures.

Response: § 257.96(c) allows the assessment to include an analysis of the effectiveness of potential corrective measures in meeting all of the requirements and objectives of the remedy a s described under § 257.97. However, Congress did not authorize the consideration of costs in establishing minimum national standards under section 4004(a). The only considerations that are

relevant are whether the measures will ensure there will be no r easonable probability of adverse

effects on health or the environment.

Section 4.4.7.11.1

- EPA solicits comment on proposed modifications to eliminate consideration of “practicable capabilities” where such considerations are already included

in MSWLF an d CESQG criteria; how this modification may affect ability of regulated community to comply with proposed remedy selection requirements, and how modification may affect protectiveness of proposed standards for HHE (35207)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 150 

### Organization: Kentucky Department for Environmental Protection


### Commenter : R. Bruce Scott Commenter Type: State Government

Comment Excerpt Text: Kentucky regulations do not allow "practicable capabilities" as a consideration during corrective action. However, agency regulations do allow variances if the applicant can meet the environmental performance standards of 401 KAR 47:030 (similar to 40 CFR 257).

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 22 

### Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company


### Commenter : Chris M. Hobson

Commente r Type: Electric Utility Company

Comment Excerpt Text: EPA should not eliminate consideration of “practicable capabilities” with respect to possible remedies or, in the alternative, EPA should clarify that states may consider this factor.187

When selecting a remedy in terms of corrective action, EPA has proposed to exclude from consideration the “practicable capabilities” of the facility. [Footnote 68: See 75 Fed. Reg. at 35207.] However, this exclusion is not warranted. Given the number of surface impoundme nts that utilities across the United States currently operate and the large sizes of such surface impoundments, the technical and economic capabilities of the owner/operator of the surface impoundment must be considered when the remedial approach is select ed. Moreover, the practicable capabilities of a facility must be considered given that the remediation/closure costs

for some utilities would exceed several billion dollars.

EPA’s rationale is that existing regulations that contain the phrase “practicabl e capability” trace back to RCRA Section 4010(c), which is limited in application to facilities that may accept household hazardous waste (“HHW”) or small quantity generator (“SQG”) hazardous waste. [Footnote 69: See 42 U.S.C. 6949a(c)(1). ] For example, S ection 257.27(c)(4) of EPA’s regulations includes the phrase and applies to non

- municipal, non

- hazardous waste disposal units that may accept HHW or SQG waste. EPA’s regulations governing MSWLF units include the phrase, [Footnote 70: See 40 C.F.R. 258.57(c )(4).] but EPA explicitly considered the application of RCRA Section 4010(c) to MSWLF units and concluded that Section 4010(c) applied to all MSWLF units. [Footnote 71: See 53 Fed. Reg. 33314, 33322 (Aug. 30, 1988) (“Based on the studies performed to date, EPA has found that the HSWA

- mandated scope includes all MSWLFs, which may receive HHW and SQG hazardous waste . . . .”).] Because EPA has not made a comparable determination with respect to CCB facilities, the rationale apparently is that

EPA is not at li berty to rely on Section 4010(c).

By the same token, EPA should also acknowledge that in enacting the “practicable capability” language, Congress intended to provide relief to facilities subject to Section 4010(c), notwithstanding the fact that they woul d receive waste that EPA deems to be hazardous under RCRA. This is consistent with EPA’s past explanation of the legislative history. [Footnote 72: 56 Fed. Reg. 50978, 50983 (Oct. 9, 1991) (“In enacting section 4010(c), Congress seems to have

been aware th at the costs of the regulation may cause many facilities to close. As a consequence, the legislative history suggests that Congress authorized EPA to develop regulations that would avoid massive closures among solid waste disposal facilities.”).] The fact that Congress explicitly chose to allow consideration of “practicable capabilities” in the context of facilities that may receive HHW and SQG waste

— which, presumably, exhibit hazardous characteristics and, therefore, pose greater risks than solid waste

— doe s not suggest, logically or otherwise, that Congress has precluded consideration of that issue in the context of Subtitle D facilities. EPA should clarify, if not in regulatory text then in the preamble of a final rule, that its statement

should not be int erpreted as in any way preventing or prohibiting the consideration of “practicable capabilities” for purposes of Subtitle D standards governing CCB disposal units.

Response: EPA lacks the discretion to authorize facilities to include these considerations in determinations under these regulations. Congress did not authorize the consideration of costs in establishing minimum national standards under section 4004(a). The only considerations that are

relevant are whether the measures will ensure there will be no reasonable probability of adverse effects on health or the environment. This stands in direct contrast to section 4010(c), which188

expressly provides that EPA “may take into account the practicable capability of such facilities” in developing standard s under that section.

Section 4.4.7.12

- Implementation of corrective action remedy (35207)

No substantive comments relating to groundwater monitoring/corrective action are associated

with this issue.

Section 4.4.7.12.1

- EPA solicits comment on whether to allow for a different time period than 3 years that was proposed as length of time during which O/O must demonstrate that concentrations have not exceeded GW protection standards in support of a determination that remedy is complete (35207)



### Co mment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 19 

### Organization: We Energies


### Commenter : Art Covi Commenter Type: Electric Utility Company :

Comment Excerpt Text: COMMENT: We concur with the provision for a 3 consecutive year monitoring activity to

demonstrate the effectiveness of groundwater remediation under a state oversight program, commensurate with national standards for a state regulatory program.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 0626 0

- 151 

### Organization: Kentucky Department for Environmental Protection


### Commenter : R. Bruce Scott Commenter Type: State Government

Comment Excerpt Text: Kentucky would only support a variance to the three

- year standard only if prescriptive Subtitle D regulations are in place at the state level to control the variance process.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 23 

### Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company


### Commenter : Chris M. Hobson Commenter Type: Electric Utility Company189

Comment Excerpt Text: EPA should not require unreasonable alternative time pe riods to demonstrate that concentrations of constituents do not exceed groundwater standards.

To require a three

- year time period for the owner or operator to prove remedial action [Footnote 73: See 75 Fed. Reg. at 35207.] is arbitrary and would be impos sible in some cases. A single fixed time would negate the utility of contaminant fate and transport modeling, which are useful for managing remedial efforts and decision

- making. Three years does not allow for the potentially useful tool of modeling or simp le calculations based on contaminant sorption or decay rates to expedite remedial closure.

Response: The Agency does not understand the comment. Corrective action requires that a remedy must be chosen that: (1) is protective of human health and the environment; (2) a ttain s the groundwater protection standard as specified pursuant to §257.95(h); (3) c ontrol s the source(s) of releases so as to reduce or eliminate, to the maximum extent practicable, further releases of constituents in Appendix IV to thi s part into the environment; (4) r emove s from the

environment as much of the contaminated material that was released from the CCR unit as is feasible, taking into account factors such as avoiding inappropriate disturbance of sensitive

ecosystems; and (5 ) Complies with standards for management of wastes as specified in § 257.98(d). Once this remedy is chosen, the corrective action is implemented. There is no time limit on how long the corrective action takes, because of the site

- specific nature of corre ctive action. The remedy would be considered complete when the owner or operator demonstrates compliance with the groundwater protection standards for a period of three consecutive years, and all other actions required to meet the performance standards in § 257.97(b) have been satisfied (e.g., source control). The owner or operator must obtain certification that the remedy is complete from a qualified professional engineer, and must notify the State Director. The certification must also be placed in the operating record and on the owner or operator’s internet

site.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 35 

### Organization: Maryland Department of the Environment (MDE)


### Commenter : Shari T. Wilson Commenter Type: State Government

Comment Excerpt Text: Proposed Regulation 40 CFR 257.98(d)(2) : This regulation would allow an operator to declare a remedial activity to be complete if the monitoring well analyses produce results below the established groundwater protection standards for at least three years. Specifically, the regulations provides: “(2) Compliance with the groundwater protection standards established under §§ 257.95 (h) or (h) has been achieved by demonstrating that concentrations of Appendix IV constituents have not exceeded the groundwater pr otection standard(s) for a period of three consecutive years using the statistical procedures and performance standards in § 257.93 (g) and (h).” This is considered to be an inadequate standard, and we note that EPA expresses concern

about it in the Preamb le. In Maryland, we have observed sites that have had protective or remedial measures installed such as caps and groundwater pump

- and

- treat systems that were190

observed to reduce the concentrations of contaminants to below MCLs, only to observe MCLs being exceeded after the system was deactivated. An example in which EPA had some involvement is the Scarboro Landfill in Harford County, Maryland, at which an active groundwater extraction and treatment system was installed under a Consent Order with the Depart ment, which subsequently met standards and was allowed to be turned off. Some years later, MCLs were again exceeded, and the extraction system was reactivated. For these reasons,

it is recommended that this condition of release be eliminated.

Response: Th e Agency understands the commenter’s concern. However, it does not seem reasonable to require a unit to remain in corrective action indefinitely if the groundwater protection standards are not being exceeded. If a situation like the one described above w ere to happen, the owner or operator of the unit would indeed find themselves back in corrective action. In that case, it would seem that the remedy chosen was not the correct remedy (i.e., control the source of the release); and the qualified professiona l engineer and/or the state would require a more rigorous remedy be implemented. Also, the state can be more stringent than these federal minimum requirements, so would be able to require a longer period to demonstrate that the remedy was complete.

Section 4.6.1.3

- Within 1 year after rule’s effective date for existing CCR LFs and SIs for GW monitoring requirements/installation of GW monitoring system (35210, 35205)

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06517

- 14

Commenter: Anonymous Commenter Typ e: Anonymous

Comment Excerpt Text: Paragraph 257.90(a)(1) requires owners of existing landfills and surface impoundments to be in compliance with the groundwater monitoring requirements of §§257.91 through 257.95 within one year after the effective date o f the rule. This is not enough time to perform a detailed hydrogeologic investigation and develop an effective monitoring program. This timeline should be extended. Criteria similar to those in 40 CFR 258.50(c) for municipal solid waste landfills

could be used, i.e., timelines based on the distance from a facility to the nearest drinking water

source.

Response : After review of the comments received on this issue and careful reexamination of the actual requirements in the final rule, EPA agrees that a one

- y ear time frame is not feasible, and has decided to extend the time frames for completing installation of the system, including background monitoring, to two years. As important as it is to begin detecting and addressing releases to groundwater, it is equal ly important that these complex systems be designed and installed correctly. That generally entails a number of activities, many of which must occur sequentially, including: determining the uppermost aquifer, deciding whether to install a single

or multi

- u nit monitoring system, collecting and evaluating hydrogeological information that can be used to model the site, characterizing the site geology, characterizing the groundwater flow beneath the site, determining the flow direction and hydraulic gradient, e stablishing horizontal191

and vertical flow direction, determining hydraulic conductivity, determining groundwater flow rate, determining the monitoring wells placement, selecting the drilling method, designing the monitoring wells, developing sampling and an alysis procedures, choosing a statistical method for evaluating the data and beginning detection monitoring. We also recognize that in some states, the state may require the owner or operator to receive state approval before they can install a groundwater monitoring system. Two years is a more reasonable timeframe in which to carry out these activities. New CCR landfills, new CCR surface impoundments and any new lateral expansion must comply with these same requirements (§§ 257.90 through 257.94) before an y CCR can be placed in the CCR unit. The commenter is referred to Unit VI which contains the specific groundwater monitoring and corrective action requirements included in the rule.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 45 Organization : NiSource Corporate Services

Commenter: Dale A. Helmers Commenter Type: Electric Utility Company

Comment Excerpt Text: Given the size of many of the units that will be newly subject to groundwater monitoring and due

to the sheer number of additional facilities that would be brought into the regulatory program, sufficient time must be allowed for the proper pre

- investigation, design, installation and initial monitoring. In order to enhance compliance with unduly burdening limited contractor and laboratory resources a s well as facility personnel, it is recommended that the groundwater monitoring requirements be phased in over a two

- year period as follows. During the first year after the effective date of the rule, facilities should be required to install detection moni toring systems. By the end of the second year, these facilities would be required to collect and analyze samples, establish databases and websites to host the data, and perform the first statistical analysis of monitoring results, as appropriate. Such an a pproach is consistent with that which was implemented successfully after the promulgation of the RCRA Part 265 groundwater monitoring requirements

Response : After review of the comments received on this issue and careful reexamination of the actual requir ements in the final rule, EPA agrees that a one

- year time frame is not feasible, and has decided to extend the time frames for completing installation of the system, including background monitoring, to two years. As important as it is to begin detecting an d addressing releases to groundwater, it is equally important that these complex systems be designed and installed correctly. That generally entails a number of activities, many of which must occur sequentially, including: determining the uppermost aquifer , deciding whether to install a single

or multi

- unit monitoring system, collecting and evaluating hydrogeological information that can be used to model the site, characterizing the site geology, characterizing the groundwater flow beneath the site, determi ning the flow direction and hydraulic gradient, establishing horizontal and vertical flow direction, determining hydraulic conductivity, determining groundwater flow rate, determining the monitoring wells placement, selecting the drilling method, designing the monitoring wells, developing sampling and analysis procedures, choosing a statistical method for evaluating the data and beginning detection monitoring. We also recognize that in some states, the state may require the owner or operator to receive stat e approval before they can install a groundwater monitoring system. Two years is a more reasonable timeframe in which to carry out192

these activities. New CCR landfills, new CCR surface impoundments and any new lateral expansion must comply with these same requirements (§§ 257.90 through 257.94) before any CCR can be placed in the CCR unit. The commenter is referred to Unit VI which contains the specific groundwater monitoring and corrective action requirements included in the rule.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06533

- 12 Organization: Empire District Electric Company

Commenter: George G. Thullesen Commenter Type: Electric Utility Company

Comment Excerpt Text:

EPA needs to revise the 12

- month after effective date requirement for the establishment o f groundwater monitoring under the Subtitle D or D prime regulations. Twelve months after the effective date, which would be 18 months after the rules are promulgated at the federal level, will not provide adequate time to complete the hydrogeologic study and monitoring plan development. The Missouri Department of Natural Resources (MDNR) has stated that establishing groundwater monitoring will take a minimum of 2 years, and more likely 3 years. Even the 3 year period would challenge the MDNR due to the sta ffing requirements.

Response : After review of the comments received on this issue and careful reexamination of the actual requirements in the final rule, EPA agrees that a one

- year time frame is not feasible, and

has decided to extend the time frames for completing installation of the system, including background monitoring, to two years. As important as it is to begin detecting and addressing releases to groundwater, it is equally important that these complex systems be designed and installed correctly. T hat generally entails a number of activities, many of which must occur sequentially, including: determining the uppermost aquifer, deciding whether to install a single

or multi

- unit monitoring system, collecting and evaluating hydrogeological information t hat can be used to model the site, characterizing the site geology, characterizing the groundwater flow beneath the site, determining the flow direction and hydraulic gradient, establishing horizontal and vertical flow direction, determining hydraulic cond uctivity, determining groundwater flow rate, determining the monitoring wells placement, selecting the drilling method, designing the monitoring wells, developing sampling and analysis procedures, choosing a statistical method for evaluating the data and b eginning detection monitoring. We also recognize that in some states, the state may require the owner or operator to receive state approval before they can install a groundwater monitoring system. Two years is a more reasonable timeframe in which to carry out these activities. New CCR landfills, new CCR surface impoundments and any new lateral expansion must comply with these same requirements (§§ 257.90 through 257.94) before any CCR can be placed in the CCR unit. The commenter is referred to Unit VI whi ch contains the specific groundwater monitoring and corrective action requirements included in the rule.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06819

- 31 Organization: Missouri Department of Natural Resources

Commenter: Robert Stout on behalf of Dru Buntin Commenter Type: State Government

Comment Excerpt Text:193

Based on our experience related to the development and implementation of groundwater monitoring systems for waste containment areas, a one year timeframe to investigate, design, submit and obtain app roval for the installation of an effective groundwater monitoring system is unreasonable. We suggest language similar to that in the Subtitle D rule Subpart E §258.50 Page 51022 Federal Register / Vol. 56, No. 196 Wednesday, October 9, 1991 /Rules Regulati on which allows for phased installation of systems. The proposed rule does not address a course of action for a facility that based upon geology or hydrology lacks sufficient groundwater to effectively monitor, nor does it allow the state flexibility to ad dress similar issues regarding whether a site can be effectively monitored.

Response : After review of the comments received on this issue and careful reexamination of the actual requirements in the final rule, EPA agrees that a one

- year time frame is not feasible, and has decided to extend the time frames for completing installation of the system, including background monitoring, to two years. As important as it is to begin detecting and addressing releases to groundwater, it is equally important that the se complex systems be designed and installed correctly. That generally entails a number of activities, many of which must occur sequentially, including: determining the uppermost aquifer, deciding whether to install a single

or multi

- unit monitoring system , collecting and evaluating hydrogeological information that can be used to model the site, characterizing the site geology, characterizing the groundwater flow beneath the site, determining the flow direction and hydraulic gradient, establishing horizonta l and vertical flow direction, determining hydraulic conductivity, determining groundwater flow rate, determining the monitoring wells placement, selecting the drilling method, designing the monitoring wells, developing sampling and analysis procedures, ch oosing a statistical method for evaluating the data and beginning detection monitoring. We also recognize that in some states, the state may require the owner or operator to receive state approval before they can install a groundwater monitoring system. Tw o years is a more reasonable timeframe in which to carry out these activities. New CCR landfills, new CCR surface impoundments and any new lateral expansion must comply with these same requirements (§§ 257.90 through 257.94) before any CCR can be placed i n the CCR unit. The commenter is referred to Unit VI which contains the specific groundwater monitoring and corrective action requirements included in the rule.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07534

- 8 Organization: Aquaterra Environmental Solution s, Inc.

Commenter: Scott Waltrip Commenter Type: Other Company

Comment Excerpt Text: This paragraph requires owners of existing landfills and surface impoundments to be in compliance with the groundwater monitoring requirements one year after the effectiv e date of the rule. Please consider extending this timeframe to two years after the effective date of the rule.

Response : After review of the comments received on this issue and careful reexamination of the actual requirements in the final rule, EPA agrees that a one

- year time frame is not feasible, and has decided to extend the time frames for completing installation of the system, including background monitoring, to two years. As important as it is to begin detecting and addressing releases to groun dwater, it is equally important that these complex systems be designed and194

installed correctly. That generally entails a number of activities, many of which must occur sequentially, including: determining the uppermost aquifer, deciding whether to install a single

or multi

- unit monitoring system, collecting and evaluating hydrogeological information that can be used to model the site, characterizing the site geology, characterizing the groundwater flow beneath the site, determining the flow direction and hy draulic gradient, establishing horizontal and vertical flow direction, determining hydraulic conductivity, determining groundwater flow rate, determining the monitoring wells placement, selecting the drilling method, designing the monitoring wells, develop ing sampling and analysis procedures, choosing a statistical method for evaluating the data and beginning detection monitoring. We also recognize that in some states, the state may require the owner or operator to receive state approval before they can ins tall a groundwater monitoring system. Two years is a more reasonable timeframe in which to carry out these activities. New CCR landfills, new CCR surface impoundments and any new lateral expansion must comply with these same requirements (§§ 257.90 throug h 257.94) before any CCR can be placed in the CCR unit. The commenter is referred to Unit VI which contains the specific groundwater monitoring and corrective action requirements included in the rule.

Section 4.7

- Subtitle D Regulatory Language Changes/Suggestions

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06865

- 23 Organization: Constellation Energy

Commenter: Charlene Zaruba on behalf of Paul Allen Commenter Type: Electric Utility Company

Comment Excerpt Text: 257.91 Groundwater monitoring system s: The existing state programs under Subtitle D address the definition of aquifers, design of systems, frequency of monitoring, monitoring methods and

test ing methods, and should include in the proposed rule. In addition, many states have certified

laborat ory requirements for the testing of groundwater samples. This should be incorporated into the proposed rule.

257.93 Groundwater sampling and analysis requirements: The methods and parameters required to adequately monitor CCR landfills or impoundments do not differ substantially from programs already in place in individual states under subtitle D. The groundwater statistic methods that are most appropriate per state have been addressed by multiple years of experience in those states

under Subtitle D. Ther efore the regulations should direct the methods to the approved method under the state program and allow for demonstration of appropriate alternatives should they

arise.

257.94 Detection monitoring program: Placement of data on the internet site should b e coordinated through the states. The timing to update the information following sampling is dictated by laboratory turn

- around time and verification sampling. The requirement for posting data within 14 days consider that the confirmation work has been com pleted prior to posting. Assessment monitoring and corrective action procedures and timing exist under the individual195

state subtitle D programs. This section should refer to those programs or at least provide for the demonstration of alternative timing an d methods under state programs.

257.95 Assessment monitoring program: Individual states have assessment monitoring programs under existing subtitle D programs. This section should parallel the state programs and not impose timetables that are inconsisten t.

257.96 Assessment of corrective measures: Individual states have procedures for assessing corrective measures under existing subtitle D programs. This section should parallel the state programs and not impose timetables that are inconsistent.

257.97 Selection of remedy: Individual states have procedures for selection of remedies under existing subtitle D programs. This section should parallel the state programs and not impose

timetables that are inconsistent.

25798 Implementation of the corrective action program: Individual states have procedures for implementation of corrective measures under existing subtitle D programs. This section should parallel the state programs and not impose timetables that are inconsistent.

R esponse: 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

- 2009

- 0640

- 07534

- 9 Organization: Aquaterra Environmental Solutions, Inc.

Commenter: Scott Waltrip Commenter Type: Other Company

Comment Excerpt Text: 40 CFR 257.91 Groundwater monitoring systems

257.91(a) This reference to the definition of uppermost aquifer in §257.41 should be to §257.40.

Response : The Agency acce pts and appreciates the comment.

Section 4.8

- Other

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 25 Organization: Tennessee Department of Environment and Conservation (TDEC)

Commenter: Paul L. Sloan Commenter Type: State Government :196

Comment Excerpt Text: The department believes that CCR should be regulated consistently in the United States as a solid waste. It should be regulated and managed to increase the rate of its reuse/recycling, reducing the use of our natural resources and lowering the rate o f CCR disposal. The success in Europe of reusing/recycling CCR material, approximately 94 percent, is a worthy goal.

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

- 2009

- 0640

- 06398

- 6 Organization: Duke Energy

Commenter: Mike Stroben Commenter Type: Electric Utility Company

Comment Excerpt Text: EPA has readily acknowledged that it can develop non

- hazardous waste rules for CCR under RCRA’s Subtitle D framework that will be fully protective of human health and the environment. [Footnote 5: See the discussions on pages 7 and page 42, infra.]. In addition, the development of Subtitle D CCR regulations is the appropriate outgrowth of EPA’s two Reports to Congress and two final Regulatory Determinations under the Bevill Amendment declaring that CCR does not warrant hazardous waste regulation under RCRA Subtitle C.

Response: The Agency ac knowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 21 Organization: Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC)

Commenter: Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government

Comment Excerpt Text: Guidance is Needed. For a rule of this complexity and scope, it is essential that EPA provide guidance for implementation when the final rule is issu ed. Affected facilities and state agencies will necessarily rely on EPA’s guidance for the successful and consistent implementation of federal CCR regulations.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06533

- 8 Organization: Empire District Electric Company

Commenter: George G. Thullesen Commenter Type: Electric Utility Company

Comment Excerpt Text:197

EPA did not directly address situations at existing and abandoned landfills and surface impound ments where CCR may be in direct contact with the natural ground water table. Will removal of CCR be required in cases where the base of an existing or abandoned surface impoundment or landfill is shown to be below the natural water table? Will removal be required even if the monitoring plan data indicates that no contamination of the natural groundwater has or is occurring? Under the subtitle D or D prime alternative, we believe that the removal of existing waste, closure with the waste in place and/or con tinued operation of the existing facility should be governed by the facilities monitoring program.

Empire District would appreciate EPA’s direct comments to the following questions. Will removal of CCR be required for closure of an existing surface impoundment regardless of whether or not the base of the impoundment is below the natural water table? If removal is not required, what specific criteria will be required for the closure of surface impoundments with the CCR in place?

Response: The Agency acknowledges and appreciates this comment. With regard to the rule's applicability, the commenter is referred to the Applicability section of Unit VI in the preamble. If a unit fails to meet the location criteria applicable to existing CCR units, the unit must initiate closure as required under the rule. These closure requirements are fully discussed in Unit VI of the preamble. This rule does not require clean closure of any unit. All CCR units covered by the rule will also be subject to groundwater monitor ing requirements and corrective action. If the scenarios presented by the commenter result in any exceedances of a groundwater protection standard, the assessment of corrective measures and selection of remedy provisions may indicate

that CCR removal is t he best course of action.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 15 Organization: Electric Power Research Institute (EPRI)

Commenter: Ken Ladwig Commenter Type: Trade Association

Comment Excerpt Text: The EPRI comments do not endorse any particular regulatory option put forth by US EPA in the June 21 proposal. The purpose of these comments is to provide technical information that can be used by US EPA and others to develop sound regulations based on the best technical information

available

.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10495

- 59 Organization: Earthjustice, et. al.

Commenter: Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text:

For the reasons discussed a bove, we do not believe EPA has the discretion under RCRA to198

implement a subtitle D option. However, we comment on specific major aspects of the subtitle D scheme below. We also submit comments to the record on particular aspects of the proposed

subtitle D (and subtitle C) schemes in Appendices I, M, and N.

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.

Comme nt Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10495

- 62 Organization: Earthjustice, et. al.

Commenter: Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text: EPA’s proposed subtitle D scheme does not establish “cradle to grave” requirements. The proposed crite ria does not address the generation, storage, treatment or transport of coal ash prior to disposal. The handling of ash prior to disposal, however, can and does harm human health and the environment. In sections III.C.2.e, supra, these comments discuss the risk posed by fugitive dust that often occurs during storage and transport of coal ash. Failure to address these risks to air, groundwater, soil, and surface water from ash handling fails to establish a reasonable probability that there will be no adverse impacts on heath or the environment.

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

- 2009

- 0640

- 10495

- 65 Organization: Earthjustice, et. al.

Commenter: Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text: With the listing of coal ash as a hazardous waste, utilities and landfill owners must comply with section 103(c) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). [Footnote 359: 42 U.S.C. §9603(c).]. Section 103(c) requires coal ash generators, past or present owners of disposal facilities, and some transporters to notify the EPA of the existence of facilities where coal ash has been disposed, specifying the amount to be found there, and any known, suspected, or likely release from the site. Given the dearth of data on where and

how billions of tons of coal ash have been disposed o ver the last six decades, it is essential for the protection of health and the environment to collect such information. In a 1993 Department of Energy report, the Department found that there are 759 retired coal ash disposal units with a

cumulative total o f 1 billion tons of waste, but no information is available on where those units are located or the conditions of the disposal. [Footnote 360: ICF Resource, Incorporated, Coal Combustion Waste Management Study, prepared for U.S. Department of Energy (Februa ry 1993), Docket ID No.: EPA

- HQ

- 2006

- 0796.]. Identification of hundreds of historic dump sites199

will undoubtedly help to safeguard water supplies, especially since most older dumps are unlined and thus more likely to release harmful contaminants. Without th is information, subtitle D fails to establish a reasonable probability that there will be no adverse impact on health or the

environment.

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: TRANS

- KNX

- 0065

- 1 Organization: Southern Alliance for Clean Energy (spoke as employee and citizen)

Commenter: Katherine Stokes Commenter Type: Private Citizen

Comment Excerpt Text: I work at the Southern Alliance for Clean Energy. I'm also a graduate of the University of Tennessee civil engineering department.

In college, I studied concrete strength. We had a lab where we would make our own concrete for

testin g, mixing aggregate with cement and water and sometimes adding fly ash. The fly ash came as a dry dust. We scooped it out of a bag. You wouldn't want to breathe in the particles, but the

ash was well contained.

This dry, treated and bagged version of coa l ash is more similar to a household chemical waste that is suggested in EPA Subtitle D. However, this is not the type of coal ash we're talking about today. In fact, under Subtitle C, coal ash that is recycled for other uses such as concrete is exempt fro m the regulations.

Response: The Agency acknowledges and appreciates the comment.

Section 5.5.2

- GW monitoring, including prevalence of at existing LFs: EPA is particularly interested in info on how many facilities currently have GW monitoring syst ems in place, how those systems are designed and monitored, and what, if anything, they have detected (35157); EPA requests more info on prevalence of GW monitoring at existing facilities (35133)

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06041

- 3 Organization : SKB Environmental, Inc (SKB)

Commenter: Ryan O'Gara Commenter Type: Other Company

Comment Excerpt Text:

SKB owns and operates recycling and disposal facilities in Minnesota. The SKB Rosemount Industrial Waste Disposal Facility (Facility) is a state

- of

- t he

- art disposal facility for non

hazardous industrial waste, municipal solid waste incinerator ash, and construction and demolition debris. For industrial waste disposal, the facility is equipped with a double composite200

liner with a dual leachate collectio n system. All leachate generated at the facility is managed at a permitted waste water treatment facility.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 64 Organization: We Energies

Commenter: Art Covi Commenter Type: Electric Utility Company

Comment Excerpt Text: All We Energies CCR landfills in Wisconsin have groundwater monitoring programs in accordance with Wisconsin Administrative Code Chapter NR 507 or NR 700, as appropriate. A ll We Energies CCR landfills in Michigan have groundwater monitoring programs in accordance with Solid Waste Management Act Administrative Rules Promulgated Pursuant to Part 115 of the Natural Resources and Environmental Protection Act, 1994 PA 451, as ame nded.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 29 Organization: Kentucky Department for Environmental Protection

Commenter: R. Bruce Scott Commenter Type: State Government

Comment Exce rpt Text: There has been one known instance that the department can recall, of substantive groundwater contamination. It involved the placement of a monitoring well in the ash in the groundwater. Wells should not be placed in the ash. Without the buffering capacity of the land, the groundwater sample was above background as one would expect for a mixture of ash and water.

If good landfill management is practiced, including proper and timely closure, restricting the type of wastes and keeping the ash out of the saturated zone, then contamination should not occur. This agency is not aware of any damage incidents in the Commonwealth involving coal combustion residuals in the groundwater.

Response: The Agency acknowledges and appreciates the comment.

Comme nt Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 33 Organization: Kentucky Department for Environmental Protection

Commenter: R. Bruce Scott Commenter Type: State Government

Comment Excerpt Text: The Commonwealth has groundwater monitoring data from the eleven active utility waste landfills. Many results are scanned into its computer system, "TEMPO", or Tools for Environmental Management Protection Organizations. As mentioned earlier, some involve the201

monitoring of indicators of contamination from nearby surface impoundments. In most cases, the groundwater assessment and corrective action process will have to be completed to obtain a final decision. Also, as it appears that few, if any, households exist between the ponds and nearby streams and rivers, and it is u nlikely that residential groundwater users are impacted in Kentucky.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 102 Organization: Duke Energy

Commenter: Mike Stroben Commenter Type: Electric Utility Company

Comment Excerpt Text: Duke Energy and electric utilities have a proven track record in mitigating any existing groundwater impacts that occur from CCR waste management activities. Also, each of the states in which Duke Energy ope rates has non

- hazardous CCR regulations with which Duke Energy has a consistent record of compliance. These state regulatory programs, along with the proactive measures taken by Duke Energy to conduct additional groundwater monitoring, have resulted in

an effective program for the early detection of groundwater impacts, thereby minimizing any potential future groundwater contamination. Duke Energy has also worked with state regulators in appropriately addressing and taking corrective measures, when necessar y, such as the expedited closure of CCR surface impoundments, to reduce and remediate even the non

- health based impacts to groundwater from its CCR surface impoundments.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EP A

- HQ

- RCRA

- 2009

- 0640

- 06416

- 11 Organization: Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC)

Commenter: Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government

Comment Excerpt Text: Because of WDNR long

- time regulation of CCR landfills, we have a large environmental database on disposal sites and activities. This data shows that while improper management of CCR wastes can result in adverse environmental impacts to groundwater, the data set for more highly engineered CCR landfills that include liners and leachate collection systems demonstrate that liners and leachate collection systems are effective in protecting groundwater from adverse

effects of CCR materials.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 85 Organization: Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC)202

Commenter: Matthew Frank (WI DNR) an d Eric Callisto (WI PSC) Commenter Type: State Government

Comment Excerpt Text: From WDNR review of the environmental data from these disposal sites we readily acknowledge that improper management of CCR wastes can result in adverse environmental impacts especially to vulnerable groundwater resources. Our review of environmental performance data also indicates the following:

• From the standpoint of groundwater impacts, the worst offenders were the historic, closed coal ash sluicing disposal sites. There are many possible reasons for this, but most importantly is the fact that all these sites were unlined, many were sited in old sand / gravel pits or quarries, wet disposal resulting in a natural hydraulic head that can drive the contaminants into the unde rlying aquifer, and the use of high

- sulfur eastern and Illinois Basin coals. Wisconsin utilities all converted to dry handling systems in the mid

- 1980’s along with a switch to burning mostly low

sulfur coal from the Powder River Basin.

• There are ground water standard exceedances present in all Wisconsin CCR landfills, both active and closed, but the exceedances in the older, unlined landfills are, generally, an order of magnitude greater than at active, engineered disposal sites.

• The best indicators of groundwater impacts from CCR disposal were boron, sulfate, arsenic and selenium. Please note that the number presented in Table 2 of the report are the most conservative numbers available and represent the highest detects from the most contaminated

well at each site, many times a well completed within the waste mass.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06723

- 16 Organization: West Virginia Department of Environmental Protection (WVDEP )

Commenter: Gary Casto on behalf of Randy C. Huffman Commenter Type: State Government

Comment Excerpt Text: As the proposed regulations do not address non

- utility owned CCR disposal sites, the following information applies only to utility owned disposal facilities in West Virginia. Currently there are 13 permitted landfills (10 active, 3 closed) and 7 permitted (active) disposal surface impoundments. Four of these impoundments are utilized for the temporary disposal of CCRs which are removed on an approxi mate annual basis after dewatering. The remaining three impoundments provide permanent disposal of CCRs. Also, associated with the landfills are 23 surface impoundments that receive stormwater runoff and leachate from the disposal areas. These impoundments receive de minimis amounts of CCRs and are cleaned out as necessary. Although not addressed in the proposed rule, these impoundments are crucial to the continued operation of the landfills and should not be treated as disposal surface impoundments.

Discha rges from these impoundments are regulated by NPDES permits. None of the above203

facilities are located within wetlands, fault areas, or seismic areas.

Groundwater monitoring design and performance standards are very similar to the design and performance s tandards referenced in proposed Subtitle D. At the sites referenced above, concentrations of constituents having primary MCLs established by the Safe Drinking Water Act rarely exceed their respective MCLs and therefore, there are no damage cases associated with said sites. Groundwater monitoring reports for all CCR facilities will be made available to EPA

upon request.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06912

- 12 Organization: Sunflower Electric Power Corporation

Commenter: Paul E. Reynolds Commenter Type: Electric Utility Company

Comment Excerpt Text: SEPC’s Landfill permit also requires SEPC to conduct rigorous ongoing groundwater quality sampling and analysis that will identify any ex ceedances in the immediate vicinity of the Landfill of groundwater quality standards established by the Permit. If the sampling were to ever identify any exceedances of an MCL at the point of compliance, KDHE has the authority and responsibility to insure that the situation is appropriately addressed to insure continued protection

of human health at and in the vicinity of the Landfill. See K.S.A. 65

- 3411; K.A.R. 28

- 29

- 9(a. KDHE Responsiveness Summary. Thus, in the unlikely event that the exhaustive and ext remely conservative analysis supporting the Landfill expansion design proves to be grossly inaccurate, KDHE has ample authority to require SEPC to take appropriate measures necessary to protect human health at all locations beyond the compliance point.

Re sponse: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06912

- 9 Organization: Sunflower Electric Power Corporation

Commenter: Paul E. Reynolds Commenter Type: Electric Utility Company :

Comment Excerpt Text: The existing landfill at Holcomb Station (the “Landfill”) and the proposed expansion of the Landfill illustrates the results that can be achieved when permitting authorities are allowed the flexibility to require controls on a case

- by

- case basis. Technical evidence, including monitoring of the Landfill’s performance to date and the modeled future impacts described in the technical study reports submitted to KDHE by SEPC in support of its application for the proposed Landfill expansion, demonstrates that the re is no threat that groundwater will contain any “contamination” emanating from the Landfill at levels that exceed the applicable maximum contaminant levels (MCLs). Specifically, the evidence establishes that it is unlikely that any

leachate will ever ent er groundwater beneath the Landfill due to the limited infiltration through204

the Landfill cover; under a worst case scenario it will be many decades before that might occur; it would take even longer for any leachate released from the Landfill to enter the aquifer beneath the Landfill; and there is no reason to believe based on the modeling that any leachate that might enter groundwater beneath the Landfill will contain any constituents of concern at concentrations above federally

- and state

- mandated safe dr inking water standards at the compliance point or beyond.

It is unlikely that any leachate will ever enter groundwater or aquifer beneath the Landfill. Monitoring data obtained from wells downgradient of the existing Landfill has not identified any

leachi ng from the existing Landfill.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 23 Organization: Nebraska Department of Environmental Quality (NDEQ)

Commenter: David B. Haldeman Commenter Type: State Government

Attachment D details the current information on groundwater monitoring at the CCR landfills in Nebraska. Chapter 7 of Title 132 addresses the requirements for groundwater monitoring for all solid waste landfills, including those which ac cept fossil fuel combustion ash. Details include location, number, spacing and depths of the monitoring systems. Groundwater monitoring plans include sampling and analysis procedures to ensure monitoring results that provide an accurate representation of t he groundwater quality at the background and downgradient wells. Section 004 clarifies frequency of sampling and analysis and constituents to be analyzed for and reported to the NDEQ. Facilities must also comply with Title 118

- Ground Water Quality Standard s and

Use Classification.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 48 Organization: Nebraska Department of Environmental Quality (NDEQ)

Commenter: David B. Haldeman Commenter Type: State Government

Comment Excerpt Text: [See original comment for Attachment D

-- Groundwater Monitoring Spreadsheet listing

detection

- indicator parameters and statistically significant increases by permitted FFCA disposal facility]

Response: The Agency acknowledges and appreciates the information.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07793

- 1 Organization: South Dakota Department of Environmental and Natural Resources

Commenter: Vonni Kallemeyn Commenter Type: State Government205

Comment Excerpt Text:

The state of South Dakota does not need additional solid waste or hazardous waste rules for the safe management of Coal Combustion Residues (CCR). We have one coal

- fired power plant that disposes coal ash in South Dakota. It has been in existence since the mid

- 1970s. There is groundwater monitoring required at this facility and at no time has there been any impacts from the disposal of CCR even though the In Harm's Way report provided to EPA would indicate otherwise. We will be commenting specifically on th is report later in this letter. We understand, however, there may be other areas of the country where environmental conditions may dictate the need for additional safeguards.

Response: The Agency acknowledges and appreciates the comment.

Comment Numb er: EPA

- HQ

- RCRA

- 2009

- 0640

- 08257

- 2 Organization: Municipal Electric Utility of Cedar Falls, Iowa

Commenter: Edward Olthoff Commenter Type: Electric Utility Company

Comment Excerpt Text: Cedar Falls Utilities has been operating a dry Coal Combustion Residue (CCR) landfill at Leversee Road in Cedar Falls. The site is a former borrow pit which was permitted as an ash monofill in 1976. After 34 years of operation, the annual water quality rep orts show no significant leaching of any mineral components of the ash into the groundwater. Annual water quality reports are submitted to the Iowa Department of Natural Resources, and are available as public record. These reports are representative of the minimal potential hazard of land disposal of dry CCR under the current regulatory framework.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08270

- 1 Organization: Cliffs Natural Resources Inc. (Cl iffs)

Commenter: David Z. Skolasinski Commenter Type: Other Company

Comment Excerpt Text: The Impact To Non

- Utilities Of A Subtitle C Determination Of CCRs

The SBP power plant is not a part of the Electrical Power Sector (Electric Utilities and Independ ent Power Producers) as defined in 75 Fed. Reg. at 35,130 because its primary business is to provide electricity and heat for the ore mining and processing operations as opposed to the sale of electrical power and heat to the public. Therefore, CCRs produc ed at this plant are not subject to the proposed Rule. However, because of the precedent that will be set by this rulemaking and the possibility that EPA may proceed with rulemaking to address CCRs from N

on

- Electric Power Sector power plants at some futur e date, Cliffs is very interested in EPA's CCR waste determination in this rulemaking.206

Except for a portion of the CCRs that are sold for beneficial use, all of the remaining CCRs that are produced at SBP are disposed in an engineered landfill, the desig n of which includes an impermeable synthetic liner beneath the CCR pile, an impermeable synthetic cap over each filled landfill cell, a leachate collection system to remove stOlmwater that accumulates from within the CCR pile on top of the liner, and monit oring wells to monitor the integrity of the landfill. The landfill was designed in conformance with Minnesota solid waste regulations. The Minnesota Pollution Control Agency approved the design of the landfill and issued a solid waste disposal system permi t for the landfill that includes monitoring and repOliing requirements among other conditions. There are other landfills in the state that are similarly designed, permitted, and operated by public utilities. Should EPA decide to regulate CCRs as Subtitle C hazardous wastes, this would result in a significantly increased pennitting effOli for such landfills, along with significantly increased costs of construction, operation, monitoring, and reporting. This would result in a much greater burden to the state permitting agency, as well as to the owner and operator of the landfill with no environmental benefit being derived.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08270

- 2 Organization: Cliffs Nat ural Resources Inc. (Cliffs)

Commenter: David Z. Skolasinski Commenter Type: Other Company

Comment Excerpt Text: In addition to the active CCR landfill at NOlihshore Mining, Cliffs also purchased a m ine during

2001 that was in bankr uptcy that included a captive coal

- fired power plant with a CCR landfill that was closed and reclaimed in 1994 and undergoing post closure monitoring with a series of groundwater monitoring wells. Over fifteen years of monitoring data clearly demonstrates that

the landfill is n ot resulting in a negative impact to the groundwater. Should EPA decide to retroactively designate the CCRs in this landfill and the SBP landfill as hazardous waste, it

would cost several tens of millions o f dollars to excavate, transport , and dispose of t he CCRs in a Subtitle C hazardous waste permitted facility with no environmental benefit. To the contrary, shipment of the CCRs to a cUl1'ently permitted hazardous waste facility would needlessly consume landfill space that would more appropriately be used for disposal of truly hazardous wastes that would, in fact, result in environmental hmm if not disposed in such a landfill.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08288

- 13 Organization: O klahoma Department of Environmental Quality

Commenter: Scott Thompson Commenter Type: State Government

Comment Excerpt Text: Several years ago, DEQ undertook a thorough review and rewrite of its solid waste rules. For this process, members of the regulate d community, consultants, and the general public were included. One outcome of that process was a revision to the rules for NHIW landfills to standardize207

requirements for those landfills. In Oklahoma, CCR is a NHIW and those landfills receiving

CCR were re quired to make upgrades and/or improvements to meet the new standards. The current DEQ rules for NHIW landfills incorporate nearly all of the criteria for MSWLFs, including siting requirements and requirements to perform groundwater monitoring, obtain

fina ncial assurance, and construct new cells or expansions of existing cells with composite liners/leachate collection systems having equivalent design standards as those proposed by EPA in this rulemaking.

Oklahoma rules for CCR landfills mirror the propose d D/D’ [D/D prime] requirements in nearly all respects and have proven to be very effective, especially with respect to groundwater monitoring and assuring proper closure and post

- closure monitoring via financial assurance. Rather than risk shutting the do or on potential beneficial reuses by implementing full Subtitle C regulation on CCR, Oklahoma has clearly shown that adequate protection can be achieved through Subtitle D requirements.

Response: The Agency acknowledges and appreciates the comment.

Co mment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08853

- 2 Organization: Lower Colorado River Authority (LCRA)

Commenter: Henry Eby Commenter Type: Electric Utility Facility :

Comment Excerpt Text: LCRA is committed to the safe and responsible management of CCRs, as evidenced by LCRA's exemplary safety record and program for CCR management, which includes management standards and a groundwater monitoring program approved by the Texas Commission on

En vironmental Quality (TCEQ).

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08857

- 16 Organization: Department of Electric, City of Hamilton, Ohio

Commenter: Charles Young Commenter Type: Electric U tility Company

Comment Excerpt Text: As EPA notes, 97% of landfills constructed between 1994 and 2004 were built with liners, and 98% were constructed with groundwater monitoring systems already in place. 75 Fed. Reg. 35128,35151. Thus, existing landfills , permitted by the states, have been designed appropriately with liners and groundwater monitoring.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09232

- 4 Organization: Mississippi Department of Environmental Quality (MDEQ)

Commenter: Trudy D. Fisher208

Commenter Type: State Government

Comment Excerpt Text: Currently there are 5 active on

- site CCR disposal units located throughout our state as well as other ash storage units and closed disposal unit s. The disposal units are regulated as nonhazardous solid waste landfills in accordance with the State of Mississippi Nonhazardous Solid Waste Management Regulations (Regulations). These landfills have been sited under stringent state siting criteria with approved liner systems, leachate collection systems, groundwater monitoring systems and various other technical features that are consistent with Subtitle D standards and that we believe are sufficiently protective of the environment. Through MDEQ's regula tion and oversight of these landfills, we have not observed conditions at these sites that indicate that a CCR unit designed and operated properly under our Regulations would pose any significant environmental threat. Companies in the coal

- fired power gene ration industry in our state have invested substantial resources into the permitting, design, construction, operation and monitoring of these residual units.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 5 Organization: Arizona Department of Environmental Quality (ADEQ)

Commenter: Benjamin H. Grumbles Commenter Type: State Government

Comment Excerpt Text:

Arizona has five coal

- burning power plants managed by electric utilities . An additional coal

burning power plant is located on the Navajo Nation. All ash landfills and surface impoundments

at electric utilities on non

- tribal land are operating under APPs and are subject to groundwater monitoring requirements.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10726_DEN

- 038

- 3 Organization: MidAmerican Energy Holdings Company

Commenter: Cathy S. Woollums Commenter Type: Electric Utility Company

Comment Excerpt Text:

PacifiC orp’s coal combustion byproducts that are not beneficially re

- used are disposed of in on

site surface impoundments and landfills. These surface impoundments and landfills are assessed through an extensive groundwater monitoring program. PacifiCorp’s surfac e impoundments are routinely inspected and actively managed to ensure integrity with oversight by the appropriate state agencies. In addition, PacifiCorp’s landfills are operated in accordance with USWAG’s industrial action plan for the management of coal combustion products.

Response: The Agency acknowledges and appreciates the comment.209

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10788_DA

- 019

- 5 Organization: Western Farmers Electric Cooperative (Western Farmers)

Commenter: Gerald Butcher Commenter Type: Electric Utility Company

Comment Excerpt Text: Today, Western Farmers is able to provide low cost electricity to small towns and rural areas in part by its coal fired electric generating unit in Fort Towson, Oklahoma. This coal unit generates 450 MW (net ). It has been in service for nearly 30 years and generates approximately 90,000 tons of CCR annually. Yearly, over 70% of this CCR is used in road beds, concrete, drywall, and other everyday products. The remaining CCR is disposed on site in which is moni tored by a groundwater monitoring system. No leaching or environmental incident has ever occurred.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11660_K

- 075

- 5 Organization: Santee Cooper

Commenter : Tommy Edens Commenter Type: Electric Utility Company

Comment Excerpt Text: We request that EPA carefully considers comments from industry with regard to actual projections of the cost. SC DHEC has a robust program that is protective of the environment. DHEC's industrial solid waste regulations now meet virtually all the Subtitle D requirements proposed in the rule for future landfills. DHEC already requires groundwater monitoring around Santee Cooper's ash ponds and at our landfill. Groundwater is monito red at Santee Cooper by a professional geologist and the analytical results are submitted to DHEC semi

- annually.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0163

- 7 Organization: Ohio Environmental Protection Agency

Commenter: Pamela Allen Commenter Type: State Government

Comment Excerpt Text: Ohio has a total of 57 CCR disposal sites and 44 are unlined. Seventeen of the 57 CCR sites have ground water monitoring with four showing some indication of impact to ground water. There are 40 CCR disposal facilities in Ohio without ground water monitoring. Knowledge of CCR damage cases due to ground water impacts at these 40 CCR disposal facilities is limited due to lack of ground water monitor ing.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0255

- 2 Organization: North Dakota Department of Health210

Commenter: Scott Radig Commenter Type: State Government

Comment Excerpt Text:

As shown i n the public record, while past groundwater impacts have occurred from pre

regulation activities, no operating facility poses a significant risk to a downgradient public or private water supply system and no facility poses a significant threat to public sa fety. There have been no new groundwater impact cases from CCR facilities permitted after the current rules were promulgated in the early 1990s.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0269

- 2 Organization: Indiana Department of Environmental Management (IDEM)

Commenter : Thomas Easterly Commenter Type: State Government

Comment Excerpt Text: Indiana has 12 permitted CCR landfills. Eleven CCR landfills perform ground water monitoring regardless of their site type. Out of the 12 CCR landfills only 3 sites are classified as a RWS type Ill and only 1 site is not required to perform ground water monitoring at this time.

Response: The Agency acknowledges and appreciates the comment.

Section 5.6.2

- GW monitoring, including prevalence of at existing SIs: EPA is particularly interested in info on how many facilities currently have GW monitoring systems in place, how those systems are designed and monitored, and what, i f anything, they have detected (35157); EPA requests more info on prevalence of GW monitoring at existing facilities (35133)

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 18 Organization: Tennessee Department of Environment and Conservation (TDEC)

Comment er: Paul L. Sloan Commenter Type: State Government

Comment Excerpt Text: A review of groundwater monitoring data from coal ash surface impoundments does demonstrate that in some instances where there is no synthetic or geologic liner, metals are transport ed via seepage from the bottom of the surface impoundments into local groundwater. However, Tennessee has not identified any specific sites where groundwater contamination from surface impoundments has impacted local, private or public water supplies. On s ites where groundwater contamination has been found, the department will continue to require monitoring to be sure that any offsite impacts are prevented or mitigated.211

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 55 Organization: Tennessee Department of Environment and Conservation (TDEC)

Commenter: Paul L. Sloan Commenter Type: State Government

Comment Excerpt Text: Since the disposal of CCR in surface impoundments represents about tw o

- thirds of all CCR disposal facilities (300 landfills versus 584 surface impoundments), addressing surface impoundments is critically important. Tennessee has discovered some migration of metals from surface impoundments into groundwater. Surface impoundm ents are also more likely to have a release to groundwater because most impoundments are unlined and the CCR is carried into the impoundment via water. Gravimetric separation is the primary method used to separate CCR

from water.

Response: The Agency ack nowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 10 Organization: Earthjustice et. al.

Commenter: Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text: Unless the volumes of impoundment influent and effluent waters are appropriately monitored, it is impossible to rule out the possibility that large volumes of leachate are infiltrating to ground water. Indeed, though not the design intention, the release of ash slurry water to ground would appear to have been t he de facto ash impoundment effluent management approach at PPL Martins Creek for decades. Similar situations almost certainly exist at other surface impoundments still in operation, whether due to design, default, or liner failure.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 8 Organization: Earthjustice et. al.

Commenter: Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text: If rapid and complete phasing out is not achievable, then rigorous and thorough monitoring must be undertaken to assure that overall contaminant loads can be effectively managed at least at the major watershed level. To be effective, that monitoring will have to include not only the coalfired power plants in a watershed, but all sources of related contaminants. Given the failure of the NPDES program to monitor and quantify the impacts of just the largest contaminant dischargers, i.e., coal fired power plants, it seems unreasonable to think that the needed lev el of212

environmental monitoring and control, as the NPDES program was apparently envisaged to provide, can be mounted now in a reasonable time frame, or perhaps at all, given the current condition of the national economy. These circumstances then return one to closure of all coal ash surface impoundments that release effluents or leachates into the environment as the only economically achievable, substantive, environmentally responsible option.

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

- 2009

- 0640

- 06915

- 8 Organization: Alcoa Inc.

Commenter: Curt Wells Commenter Type: Other Company

Comment Excerpt Text: [ATTACHMENT: See original comment for Attachment 6915.2: SWMA B Release Assessment Report]

[ATTACHMENT: See original comment for Attachment 6915.3: SWMU 42 Groundwater Investigation Report]

[ATTACHMENT: See original comment for Att achment 6915.4: SWMU 57 Soil and Groundwater Investigation Report]

R e sponse: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08225

- 5 Organization: Minnesota Power (ALLETE)

Commenter: Michael G. Cashin Commenter Type: Electric Utility Company

Comment Excerpt Text: Minnesota Power notes that we have already provided for environmentally responsible management of ash produced as part of our electricity generation through a combination of practices. These p ractices include:

 Existing ash impoundment groundwater monitoring and reporting.

 Ash impoundments including clay liners or state

- of

- the

- art composite liners (CGL/HDPE)

 Earthen dikes of engineered design and construction with oversight from Minnesota

De partment of Natural Resources (DNR), dam safety division.

 Closure of inactive ponds

 Requirements for final closure of active ponds to meet MSW cap standards.213

 MPCA required groundwater modeling studies that concluded that there are no current adverse imp acts to nearby surface waters based on water quality standards and no concerns with any drinking water receptors.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0228

- 5 Organization: Virginia Department of Environmental Quality (DEQ)

Commenter: Jeffery Steers Commenter Type: State Government

Comment Excerpt Text: In 2009, DEQ conducted inspections at electric utilities with coal ash impoundments. Review of these inspection reports indicates th at there are 15 active coal ash impoundments at seven facilities. Of these impoundments, 12 of the 15 impoundments have permit conditions that require groundwater monitoring and reporting, and three of the five closed impoundments also include groundwater monitoring requirements.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0255

- 9 Organization: North Dakota Department of Health

Commenter: Scott Radig Commenter Type: State Government

Comment Excer pt Text: The NDDoH requires permits for CCR surface impoundments, including certification by a professional engineer and groundwater monitoring requirements, and conducts inspections of such facilities. Most facilities have been well designed, constructed and operated; however, there

were a few old sites constructed before the establishment of state rules that were deficient and caused limited groundwater impacts. There are no known sites where contamination has migrated beyond the compliance boundary. Site s that have impacted groundwater were the basis for strengthening the surface impoundment rules in 1992, and have either been upgraded or closed and disposal operations moved to sites with better geology, engineering and monitoring.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0273

- 2 Organization: Department of Natural Resources, State of Missouri

Commenter: Alan Reinkemeyer Commenter Type: State Government

Comment Excerpt Text:

Missouri has a number of coal burning power plants. Most of these facilities do manage their fly ash short term in surface impoundments prior to beneficial reuse or final disposal in a UWLF. However, these surface impoundments are bowl shaped depressions in the ground (i n contrast to214

the raised structures used at the Tennessee Valley Authority facility). The outfalls from these ponds and from landfills are routinely monitored under the Missouri State Operating Permit process (i.e., the state equivalent to the National Pol lution Discharge Elimination System permitting process).

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0287

- 4 Organization 1 : Illinois Environmental Protection Agency (EPA)

Commenter 1 : John Kim

Comm enter Type: State Government

Comment Excerpt Text: Illinois EPA's Ash Impoundment Strategy Progress Report

October 2011

Introduction

In regard to coal combustion residues (CCR) at surface impoundments and coal fired electric generating plants; the Illi nois Environmental Protection Agency (Illinois EPA or IEPA) Bureau of Water (BOW) has been implementing a program very similar to the proposed "D prime" option proposed by U .S. EPA. The corrective actions under the Illinois Pollution Control Board's (Boar d) groundwater management zone (GMZ) provisions are consistent with the existing closure requirements for solid waste landfills (40 CFR 258). U .S. EPA's proposals for closure of surface impoundments containing coal combustion residuals (CCR) are based on these existing models used for landfills.

Illinois EPA's Strategy

Although Illinois was one of the first states in the country to have and apply groundwater standards (i.e. 1971), groundwater monitoring requirements, and corrective actions to ash impound ments (e.g ., Central Illinois Public Service Company v. Pollution Control Board, 116 Ill.2d 397, approved GMZs at Havana [Footnote 1: The GMZ implemented at Havana has resulted in restoring groundwater quality to meet the Board standards.], Wood River and Hennepin, etc.) we chose to make further improvements in response to the massive coal ash spill at a Tennessee Valley Authority facility in Kingston, Tennessee. Illinois EPA developed an aggressive strategy to assess ash impoundments at coal fired power p lants. Since the early 1990s, new ash ponds (surface impoundments) have been required to be lined and groundwater monitoring wells have been installed at many of these new ash impoundments. There are also older ash ponds at many of these facilities.

An in ventory of power plants with surface impoundments permitted by the Illinois EPA under the National Pollutant Discharge Elimination System (NPDES) permit program has been created. There are 24 power plants in Illinois with a total of 83 ash impoundments. Ta ble 1 below215

indicates the number of impoundments that were active, those that had low permeability liners, and those that had groundwater monitoring as of February 1st, 2009.

[See original comment for Table 1. Number of Impoundments that are Active, have Low Permeabilitv Liners, and Groundwater Monitoring Systems.]

The geologic vulnerability of groundwater at the 24 power plants was assessed using the Illinois' "Potential for Aquifer Recharge" map which classifies the potential for precipitation to infilt rate the surface and reach the water table. This map can also be [NOTE: scanned copy posted by the docket appears to have pages out of order; the pages missing here are bracketed where they appear later]

Response: The Agency acknowledges and appreciates the comment.

Section 6.2

- Groundwater Modeling No substantive comments relating to groundwater monitoring/corrective action are associated

with this issue.

Section 6.2.1

- Modeling duration No substantive comments relating to groundwater monitoring/corrective action are associated

with this issue.

Section 6.2.2

- Modeling approach

No substantive comments relating to groundwater monitoring/corrective action are associated

with this issue.

Section 6.2.3

- Site

- specific analysis and comparisons with other data: EPA seeks data on distance of SIs to water bodies, site

- specific GW risk analysis that accounts for presence of nearby surface water body, and GW monitoring associated with such sites (35146)

No substantive comments rela ting to groundwater monitoring/corrective action are associated

with this issue.

Section 6.2.4

- Well

- related issues: EPA solicits info/data regarding drinking water wells

down

- gradient of CCR disposal units, any monitoring data and potential of these we lls to216

be intercepted by surface water bodies (35222); EPA requests comment on exact locations of CCR waste management units to more fully account for water bodies that may exist between such units and drinking water well (35133)

No substantive comments relating to groundwater monitoring/corrective action are associated

with this issue.

Section 6.2.5

- Other GW modeling comments

Comment Number: TRANS

- DEN

- 0012

- 1

Commenter: Joby Adams Commenter Type: Private Citizen

Comment Excerpt Text: I've been a practicing hydrogeologist for the past 24 years. Most of my work has been with

-- focusing on groundwater investigations and RCRA

- related corrective actions.

In 1998, though, I was asked to evaluate the feasibility of using coal ash to reclai m flooded gravel quarries on the Front Range of Colorado. This lead me to a number of short and long

- term leaching tests comparing various combustion residues. I also did leaching tests comparing materials considered inert such as recycled asphalt and conc rete.

The results of my bench

- scaled testing then lead to a field

- scaled test where I buried 400 tons of coal ash beneath the water table in an unlined pit. This was done under a Department of Energy grant and permitted by the State of Colorado.

At the end of our one

- year monitoring period, which we monitored the water qualities of the coal ash and aquifer up

- and downgradient, we had violated no water quality standards as established by the State.

When I became aware the EPA was contemplating regulating CCRs under Subtitle C, it reminded me of an article I read in 1991. The name of this article is called New Measure of Risk, and the premise of the article is that when people do not understand the sc ientific processes and trying to eliminate every risk that is presented, the public resources are directed to areas that are

of little benefit and

-- or come at a staggering cost. I believe that if CCRs are regulated under Subtitle C, this will be the case

.

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.

Section 7.1.1.2

– GW monitoring requirements/standards: EPA seeks comment whether GW monitoring is required by states for CCR LFs217



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 15 

### Organization: Kansas Department of Health and Environment


### Commenter : William L. Bider Commenter Type: State Government



### Comment Excerpt Text: (1) History of CCR management in Kansas shows no evidence of environmental damage: Since 1976 all industrial landfills in Kansas have been required to have solid waste permits. Designs submitted as part of permit applications must be prepared by licensed professional engineers and licensed geologists and reviewed by regulatory staff that is licensed as professional engineers and geologists. From 1976 until the present (2010), CCRs have been managed in permitted landfills, surface impoundments and piles. All disposal areas include groundwater quality monitoring systems. During the past 34 years, Kansas has had no known cases of environmental damages due to the mismanagement of CCRs as described and referenced in the Appendix to the Preamble (p. 35234

- 35239).

(2) Extent of risk posed by the management of CCRs in Kansas:

Based on the successful record of CCRs management in the State of Kansas under existing solid waste statutory and regulatory authority (which includes engineering permitting, op erations, construction quality assurance, groundwater quality monitoring, closure and post

- closure care, and financial assurance requirements), there is no unacceptable risk posed under current management requirements for CCRs in Kansas.

Response: The Ag ency 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 Unit VI for a discussion the specific groundw ater monitoring and corrective action requirements included in the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06011

- 1 

### Organization: Public Service Commission (PSC)

- State of North Dakota


### Commenter : Tony Clark Commenter Type: State Government

Comment Excerpt Text: In North Dakota, the State Department of Health has been effectively regulating the disposal of CCRs for more than twenty years by requiring most of these materials to be disposed of in properly designed lined landfills with long term groundw ater monitoring during and after disposal activities. The only exceptions are approved beneficial uses of CCRs and the disposal of bottom ash which does not have to be disposed of in clay or synthetically lined landfills. In addition, long term groundwater monitoring is required during and after placement of the 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

subtit le D rule for the disposal of CCR in landfills and surface impoundments. The commenter is218

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

- 2009

- 0640

- 06260

- 114 

### Organization: Kentucky Department for Environmental Protection


### Commenter : R. Bruce Scott Commenter Type: State Government

Comment Excerpt Text: Kentucky has a mature special waste permitting program to regulate coa l combustion residual landfills under the Solid Waste Branch. This program requires ground water monitoring, financial assurance, public notice and siting requirements. The regulations do not include specific requirements for liners or precipitation run

- on / run

- off controls such as ditches or sediment ponds, but the general requirements of the program have been interpreted in recent years to require liners. It is Kentucky's position that that the existing solid waste program, run through the state's equivalent of the Subtitle D (Contained) landfill permitting program, is the most effective way to implement new requirements.

Regarding groundwater monitoring (GWM) and lining of landfills and surface impoundments, Kentucky regulations require that the o wners or operators of landfills perform GWM and consider a liner pursuant to 401 KAR 45:160 and 45:110. In the last five to seven years, all newly permitted landfills have a liner system in the permit. See http://www.lrc.ky.gov/kar/401/045/160.htm and http ://www.lrc.ky.gov/kar/401/045/110.htm for

more information.

Surface impoundments do not have similar requirements currently under Kentucky regulations. The owners or operators of ponds receive a permit

- by

- rule which exempts owners or operators from most p ermitting requirements, including liners and groundwater monitoring. See 401 KAR 45:060, Section 1(4) for more information: http://www.lrc.ky.gov/kar/401/045/060.htm. Kentucky supports revising these requirements for ponds under the proposed rule.

Respons e: 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

- 2009

- 0640

- 06260

- 28 

### Organization: Kentucky Departmen t for Environmental Protection


### Commenter : R. Bruce Scott Commenter Type: State Government

Comment Excerpt Text: This agency does have some data indicating that CCR surface impoundments located near219

landfill groundwater monitoring wells have shown indications of groundwater contamination, due to an increase of sulfates or chlorides above background. Many of these cases are still in the assessment phase, but Duke Power's East Bend Station near Cincinnati has finished the process. They determined that there would be exposure risks to residential users if a well were put next to or under the ash pond. However, Duke owns the land involved and is using institutional controls prohibiting residential wells on that parcel of land. In most cases, there is a l arge receiving stream bordering the property, so no one lives between the surface impoundment and the stream. [Footnote 1: Kentucky has five phases to a groundwater monitoring report indicating that one parameter is above background or, for MCLs, above an MCL: Conf i rmation sampling and analyses by the agency, an assessment permit modification, assessment report, corrective action permit modification, and a corrective action report. See 401 KAR 45:150 for more information: http://www.lrc.ky.gov/kar/401/045/1 60.htm.]

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 surf ace 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

- 2009

- 0640

- 06298

- 10 

### Organization: Ten nessee Department of Environment and Conservation (TDEC)


### Commenter : Paul L. Sloan Commenter Type: State Government

Comment Excerpt Text: In 2009, the Tennessee General Assembly strengthened the Tennessee Solid Waste Management Act to require synthetic liners for all new or expanded landfills receiving coal ash and to require all closed coal ash landfills to have a cap. Additionally, beginning in May 2009, TDEC has required all new CCR landfills, and all expansions of existing landfills, to meet Tennesse e's Class I design criteria including, geologic buffer, synthetic liner, leachate collection and groundwater monitoring

-- if used for coal ash disposal. Class I landfills in Tennessee are the equivalent of RCRA Subtitle D landfills. To date, one landfill has expanded under this change.

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

- 2009

- 0640

- 06 300

- 83 

### Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company


### Commenter : Chris M. Hobson Commenter Type: Electric Utility Company220

Comment Excerpt Text: Florida also boasts a comprehensive regulatory program for the protection of groundwater resources. The program was developed in the mid

- 1980s in recognition of Florida’s heavy reliance on those resources for potable water and other u ses and contains the standards applicable

to Class G

- I and Class G

- II groundwater. [Footnote 352: FLA. ADMIN. CODE R. 62

- 520.420.] The vast majority of Florida’s groundwater meets the definition of Class G

- II groundwater, which is amenable for potable wate r use in aquifers with total dissolved solids content of less than 10,000 milligrams per liter. [Footnote 353: R. 62

- 520.410.] In addition to the “minimum criteria” for groundwater, G

- II groundwater must also meet the primary and secondary drinking

water q uality standards for public water systems, [Footnote 354: R. 62

- 520.420.] established pursuant to Florida’s Safe Drinking Water Act. [Footnote 355: RR. 62

- 550.310; 62

- 550.320.]

Moreover, FDEP rules contain an important exemption to application of these d rinking water

standards to G

- II groundwater. The numerical primary and secondary drinking water standards do not apply within an authorized “zone of discharge“ (“ZOD”), [Footnote 356: R. 62

- 520.420(4).] which is 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.” [Footnote 357: R. 62

- 520.200(23).]
There are “default” ZOD dimensions for a facility discharging to Class G

- II groundwater. [Footnote 358: R. 62

- 520.465.] 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 boun dary, whichever is less. Certain older facilities, defined as “existing installations” which were in operation prior to FDEP’s groundwater rules, are provided ZODs with larger lateral dimensions excepted from this default ZOD. [Footnote 359: RR. 62

- 520.200 (10); 62

- 520.465(1).]

When groundwater conditions represent an imminent hazard to public health, immediate action must be taken to remove or reduce the hazard to prevent any threat to public health and the environment. [Footnote 360: R. 62

- 520.700(1).] S imilar corrective action is also required when no imminent hazard exists, but where a plume has extended beyond a permitted ZOD or is likely to threaten to impair the designated use of an underground source of drinking water. [Footnote 361: Id] There are a dditional groundwater monitoring, leachate monitoring, and corrective action requirements applicable to solid waste management facilities. [Footnote 362: See R. 62

- 701.510.]

In summary, Florida effectively regulates CCB management under existing state st atutory and regulatory authorities, even though it does not have a specific regulatory program addressing CCB disposal. Indeed, over the years, FDEP has routinely required groundwater monitoring systems, along with the installation of liner systems, includ ing clay liners, pozzolanic liners, and double HDPE geomembrane liners

— all of which strike at the heart of EPA’s Subtitle D approach. In the end, FDEP requires owners/operators of CCB management units to provide

reasonable assurance that such units will no t cause pollution in violation of FDEP water quality

standards

.

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 this221

subtit le D rule for the disposal of CCR in landfills and surface impoundments. The commenter is

also referred to Unit VI of the preamble for a discussion of the groundwater monitoring requirements and Unit IX of the preamble for a discussion on how EPA expects s tates to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 96 

### Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company


### Commenter : Chris M. Hobson Commenter Type: Electric Utility Company

Comment Excerpt Text: The majority of Mississippi Power’s ash management units have existing groundwater monitoring programs in place to ensure the protection of human health and the environment. MDEQ requires owners and operators of CCB dry storage impoundments to incorporate and implement groundwater monitoring and corrective action plans into their solid waste permits, and such plans mus t consider the potential risks posed by the unit to human health and the environment. Plans are comprehensive and require analysis of multiple factors including the proximity of human and environmental receptors, design of the unit, age of the unit, types and quantities of wastes disposed, and resource value of any underlying aquifers. Groundwater monitoring must be conducted throughout the active life and post

- closure period until the owner can demonstrate that there is no potential for migration of consti tuents from the landfill to nearby aquifers. Mississippi Power continually works with MDEQ staff to implement effective groundwater monitoring programs and repeated monitoring has demonstrated that Mississippi Power’s facilities are in compliance with the appropriate MDEQ guidelines.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 85 

### Organization: Earthjustice et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text: An EPA survey of regulations for CCR in the top 34 coal utility States indicates that State regulations are clearly inadequate to protect Human Health and the Environment (USEPA, 2010). I have reviewed the summary of the State CCR regulations prepared by E arthjustice, et al. (2010) and concur that the current state regulations routinely lack the requirements for essential safeguards for the disposal of CCR in landfills and surface impoundments. For landfills, only 12 of the 37 States reviewed by Earthjustic e require leachate collection, while 17 require run

on/run

- off controls. For surface impoundments, only 4 of 37 States require composite liners, only 8 States require leachate collection, and only 6 States have run

- on/run

- off control requirements.
However, the details of the design requirements vary greatly from State to State, for the environmental controls listed above. For example, although 12 states have requirements for composite liners under surface impoundments, none of the existing surface impoundme nts in any of the states reviewed, report having synthetic components of their liners.222

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 22 

### Organization: Earthjustice et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text: States Fail to Require Groundwater Monitoring.

Despite the critical need to monitor for potential contamination of water resources at CCR disposal units, a majority of the states examined do not require groundwater monitoring for both existing and new CCR landfills. Commenters reviewed whether states required all of their operating landfills (and surface impoundments) to conduct groundwater monitoring, not just

those built after a certain date. F or the protection of public health, it is absolutely essential that all units be monitored. In fact, it is arguably more important for older units to be monitored because older units are more likely to be constructed without liners and leachate collection systems. When states “grandfather” older waste units, they likely are exempting a large proportion of the state’s waste disposal units, because both landfills and surface impoundments are used for many decades.

The resulting analysis reveals that the maj ority of coal ash in the U.S. is not subject to mandatory groundwater monitoring when disposed in landfills. In addition to the states identified above that completely exempt all or most of coal ash disposal from regulation, at least seven other states

pro vide for wholesale exemption from regulation of CCR that is disposed in on

- site or in monofills, and another seventeen states leave the decision of whether to require such monitoring at landfills up to the discretion of state agency staff. Thus, at least 3 0 states (which as a whole generated 85 percent of the total CCR in the United States in 2005) lack mandatory groundwater monitoring requirements for both new and existing CCR landfills. Of the states in which groundwater monitoring of CCR landfills is man datory, only semi

- annual sampling is required.

[ see original comment for Table 2. Is Groundwater Monitoring Mandatory at CCR Landfills?]

Even fewer states require groundwater monitoring for all existing and new CCR surface impoundments. Of the 37 states examined, only six required any level of groundwater monitoring under state solid waste programs. Of those six, two states require monitoring of groundwater only after the closure of a disposal unit and one requires monitoring for surface impoundments loc ated in specific areas associated with the water supply. Thus, at least 31 states (which as a whole generated 79% of the total CCR in the United States in 2005) lack mandatory groundwater monitoring requirements for all CCR surface impoundments. As discuss ed below, the fact that groundwater monitoring is not mandatory at the majority of CCR surface impoundments takes on particular significance in light of EPA’s assumption that states without groundwater monitoring requirements for surface impoundments are u nlikely to implement

Subtitle D criteria on their own accord.223

[ see original comment for Table 3. Is Groundwater Monitoring Mandatory at CCR Surface Impoundments?]

Even in states where groundwater monitoring is mandatory or where regulators have exercised their discretion to require such monitoring, the specific requirements in place are not necessarily protective of health and the environment. For example, all of the states that require groundwater monitoring at CCR landfills require only that monitoring wells be sampled twice a year; yet

semi

- annual sampling is insufficiently protective. In order to ensure protection of groundwater and early detection of any contamination as well as understand seasonal variations in sampling results, quarterly sampling mu st be required.

[ see original comment for Table 4. Is Quarterly Monitoring Required at CCR Landfills?] [ see original comment for Table 5. Is Quarterly Monitoring Required at CCR Surface Impoundments?]

Similarly, few states require the adequate minimum nu mber of downgradient monitoring wells. A minimum of three wells is necessary to determine the direction of groundwater flow and, thus, the existence and extent of contamination originating at a CCR disposal unit. However, only a handful of states require t he installation and sampling of three downgradient wells. [Footnote 112: Indeed, EPA identifies only three states that require a minimum of four monitoring wells (one upgradient and three downgradient) at CCR landfills. 2010 RIA , at Exhibit E1.] Without the ability to properly define groundwater movement and the presence and location of contaminants, a groundwater monitoring program cannot be effective.

[ see original comment for Table 6. Are a Minimum of Three Downgradient Wells and One Upgradient Well

R equired at CCR Landfills?] [ see original comment for Table 7. Are a Minimum of Three Downgradient Wells and One Upgradient Well Required at CCR Surface Impoundments?]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06516

- 7 

### Organization: Plains Justice, Iowa Environmental Council, Iowa Interfaith Power & Light, Iowa Physicians for Social Responsibility


### Commenter : Carrie La Seur

Comment Excerpt Text: Even Iowa’s coal ash sanitary landfill regulat ions require no background monitoring, so early indications of heavy metal leaching are nearly impossible to detect.

Response: The Agency acknowledges and appreciates the comment.224



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06723

- 13 

### Organization 1 

### : West Virginia Department of Environmental Protection (WVDEP)


### Commenter 1 : Gary Casto on behalf of Randy C. Huffman Commenter Type: State Government

Comment Excerpt Text: Groundwater monitoring systems consisting of a minimum of one upgradient and three downgrad ient wells are required to be monitored semi

- annually (at a minimum) for the constituents referenced in Appendix III and Appendix IV of the proposed CCR rule plus additional constituents associated with CCR leachate. Also, semi

- annual monitoring of leachat e for constituents referenced in Appendix III and Appendix IV plus additional constituents associated with CCR leachate is required.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06815

- 29 

### Organization: Michigan Department of Natural Resources and Environment (DNRE)


### Commenter : Liane J. Shekter Smith Commenter Type: State Government

Comment Excerpt Text: The State of Michigan requires groundwater monitoring at all permitted and licensed disp osal facilities including CCR landfills, with the following exceptions. The groundwater monitoring requirement may be reduced or waived if the owner or operator can demonstrate that there is no potential for migration of hazardous constituents from the lan dfill or impoundment to the uppermost aquifer during the active life of the landfill and throughout the 30

- year post

- closure period, or if a discharge will occur, but it is authorized under a groundwater discharge permit. The list of parameters that must b e sampled can be adjusted if it can be shown that a particular constituent is not found in the landfill leachate. In practice, this means that several CCR disposal sites have reduced monitoring program requirements. All surface impoundments have NPDES

surf ace water discharge permits, and the discharge is monitored for compliance with permit

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 ration ale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is

also referred to Unit VI of the preamble for a discussion of the groundwater monitoring requirements and 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

- 2009

- 0640

- 06819

- 5 

### Organization: Missouri Department of Natural Resources


### Commenter : Rob ert Stout on behalf of Dru Buntin Commenter Type: State Government225

Comment Excerpt Text: Missouri has comprehensive regulations in place for the design and permitting of utility waste landfills (UWLFs) that are used to manage CCRs as a solid waste. Missou ri promulgated regulations in 1997 specifically for UWLFs. Utility waste landfills permitted pursuant to these regulations are subject to requirements designed to protect public health and the environment, including:

- a geologic and hydrologic evaluatio n to determine if the site is suitable for construction of a landfill;

- a liner with quality assurance/quality control protocols to ensure proper construction;

- a leachate collection system and a groundwater monitoring system; and

- establishment of a closure Financial Assurance Instrument (FAI).

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 t he disposal of CCR in landfills and surface impoundments. The commenter is

also referred to Unit VI of the preamble for a discussion of the groundwater monitoring requirements and Unit IX of the preamble for a discussion on how EPA expects states to incorp orate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06838

- 6 

### Organization: Minnesota Pollution Control Agency (MPCA)


### Commenter : Lisa Mojsiej on behalf of Tim Scherkenbach Commenter Type: State Government

Comment Excerpt Text: The regulations in Minnesota have not changed; however, the design standards and requirements have evolved over time. New facilities and any expansions must meet design requirements similar to those being proposed in this rule making. It is the practice of the MPCA to require composite liners and groundwater monitoring systems at CCR landfills and surface impoundments.

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

also referred to Unit VI of the preamble for a discussion of the groundwater monitoring

requ irements and 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

- 2009

- 0640

- 06872

- 18 

### Organization: State of Pennsylvania Department of Environmental Protection


### Commenter : Todd M. Wallace226

Commenter Type: State Government

Comment Excerpt Text: Groundwater monitoring is required for all CCR landfills and surface impoundments located in PA. The groundwater monitoring requirements include num ber, location, and construction standards for wells and detailed requirements for data evaluation and assessment and abatement triggers.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the pr eamble 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 of the preamble for a discussion of the groundwater monitoring requi rements and 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

- 2009

- 0640

- 06880

- 4 

### Organization: Eastman Chemical Company (Eastman)


### Commenter : Keith Harris Commenter Type: Other Company

Comment Excerpt Text: The State of Tennessee has, since the early 1980s, had in place regulation of industrial landfills that manage CCR in addition to other industrial wastes. Those regulations were substantial ly revised in 1990 and again in 1993. Tennessee Rule Chapter 1200

- 1

- 7, Tennessee Rules for Solid Waste Processing and Disposal, applies the Federal Criteria for Municipal Solid Waste Landfills (40 CFR Part 258) to MSW landfills, but also apply those standa rds to industrial landfills, including those that manage CCR. As a result, CCR landfills in Tennessee are subject to standards that require site characterization including assessment of areas of concern, buffer zones, composite liners, leachate collection systems, final cover systems, run

- on and run

- off control, storm water management, fugitive dust controls, groundwater monitoring, gas monitoring, closure and post

- closure care, and financial assurance.

Response: The Agency acknowledges and appreciates the comment

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06880

- 5 

### Organization: Eastman Chemical Company (Eastman)


### Commenter : Keith Harris Commenter Type: Other Company

Comment Excerpt Text: Eastman has operated an on

- site industrial waste landfill managing CCR and other wastes under a permit issued in 1984 by the Tennessee Department of Health and Environment (the predecessor of the current Tennessee Department of Environment and Conservation (TDEC)). This permit has been and is periodically modified by Eastman and TDEC as necessary to assure compliance with the regulations and their revisions. Groundwater monitoring has been conducted continuously since 1984, at least semi

- annually and for a period, quarterly. TDEC's staff in the227

Division of Solid Waste Management conducts inspections of the facility at least quarterly to assure the facility complies with these standards.

Response: The Agency acknowledges and appreciates the comment

.



### Co mment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06917

- 26 

### Organization: Texas Commission on Environmental Quality (TCEQ)


### Commenter : Tangela Niemann on behalf of Mark R. Vickery Commenter Type: State Government

Comment Excerpt Text: Regarding the adequacy of the state program, as discussed above under "Current CCR Management Practices and Regulations in Texas," TCEQ has regulations and technical guidelines in place that require owners and operators of solid waste management facilities to manage their wastes in a manner that will be protective of human health and the environment. TCEQ's technical guidelines for siting, design, construction, and operation of surface impoundments and landfills are similar to the standards EPA is proposing under the Subtitle D option. Almost all existing coal

- fired electric utilities in Texas have TPDES permits and conduct groundwater monitoring for their CCR land

- based units. These units are lined with clay or synthetic liners.

Groundwater monitoring is conducted at 15 of the 19 existing Te xas electric utilities. Seventeen (17) of the 19 utilities have Texas Pollutant Discharge Elimination System (TPDES) permits. Outfalls from surface impoundments at these facilities are subject to the TPDES requirements if they discharge to waters of the U. S.

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 im poundments. The commenter is also referred to Unit VI of the preamble for a discussion of the groundwater monitoring requirements and Unit IX of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid waste man agement plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06987

- 9 

### Organization: Entergy Services, Inc.


### Commenter : Joseph Hantz Commenter Type: Electric Utility Company

Comment Excerpt Text: The three coal plants and associated CCR landfills that Entergy operates are permitted by the Arkansas and Louisiana Departments of Environmental Quality. Both state programs require that CCR landfills be constructed at a minimum with a compacted clay liner of at least a two

- foot thickness with a hydraulic conductivity of no more than 1 x 10

- 7 cm/sec with a leachate collection system or with geosynthetic liners, meet stringent design criteria including floodplain and wetland restrictions and fault zone, seismic impact region and unstable area restrictions,228

conform to st andardized operational requirements, conduct groundwater monitoring, and comply with closure and post

- closure criteria as well as provide financial assurance.

Response: The Agency acknowledges and appreciates the comment

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 10 

### Organization: Nebraska Department of Environmental Quality (NDEQ)


### Commenter : David B. Haldeman Commenter Type: State Government

Comment Excerpt Text: Facilities must also comply with Title 118

- Ground Water Quality Standards and Use Classification. http://www.deq.state.ne.us/RuleAndR.nsf/pages/118

- TOC. Title 18 establishes remedial action requirements for releases to ground water from landfills and other point sources.

Response: The Agency acknowledges and appreciates the comment

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 16 

### Organization: Nebraska Department of Environmental Quality (NDEQ)


### Commenter : David B. Haldeman Commenter Type: State Government

Comment Excerpt Text: Title 132, Chapter 7

- GROUND WATER MONITORING AND REMEDI AL ACTION. Chapter 7 addresses the requirements for groundwater monitoring for all solid waste disposal areas including those for CCR. Details include location, number, spacing and depths of the monitoring systems. Groundwater monitoring plans include samp ling and analysis procedures to ensure monitoring results that provide an accurate representation of the groundwater quality at the background and down gradient wells. Section 004 of Chapter 7 clarifies the frequency of sampling and analysis and constituen ts to be analyzed for and reported to the NDEQ. Facilities must also comply with Title 118

- Ground Water Quality Standards and Use Classification.

Response: The Agency acknowledges and appreciates the comment

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 21 

### Organization: Nebraska Department of Environmental Quality (NDEQ)


### Commenter : David B. Haldeman Commenter Type: State Government

Comment Excerpt Text: The State of Nebraska currently has seven CCR landfills, all of which are permitted and inspected by NDEQ. One new landfill is under construction. Five of the existing sites are considered dry landfills. Two of the sites are designed to use water to transport the ash to the landfill, therefore under the proposed federal regulato ry definition they would be classified as surface impoundments. These two surface impoundments are excavated earthen structures and229

therefore are not subject to discharge due to a break in a dike or dam structure. Three of the permitted sites have liner sy stems in place, one being a surface impoundment. The new landfill under construction is being constructed with a composite liner system. All sites have an approved groundwater monitoring program. Liners are required for new or lateral expansions of

existin g CCR landfills. Attachment C lists the CCR landfills in Nebraska and the type of liner in

use.

Attachment D details the current information on groundwater monitoring at the CCR landfills in Nebraska. Chapter 7 of Title 132 addresses the requirements for groundwater monitoring for all solid waste landfills, including those which accept fossil fuel combustion ash. Details include location, number, spacing and depths of the monitoring systems. Groundwater monitoring plans include sampling and analysis proced ures to ensure monitoring results that provide an accurate representation of the groundwater quality at the background and downgradient wells. Section 004 clarifies frequency of sampling and analysis and constituents to be analyzed for and reported

to the NDEQ. Facilities must also comply with Title 118

- Ground Water Quality Standards and

Use Classification.

Response: The Agency acknowledges and appreciates the comment

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07791

- 12 

### Organization: Georgia Department of Natural Resources (GAEPD)


### Commenter : Jim Brown for Mark Smith Commenter Type: State Government

Comment Excerpt Text 

### : Groundwater monitoring requirements are established in Rule 391

- 3

- 4

- .14. Groundwater must be monitored throughout the active life of the u nit and the post

- closure care period, defined in Rule

391

- 3

- 4

- .12(2) as " ... at least thirty (30) years after the Director has authorized the Closure Certificate ... " Parameters monitored are those in Appendix I and II of 40CFR258; corrective

action is s pecified in Rule 391

- 3

- 4

- .14(34)

- (50).

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 10 

### Organization: Ohio Environmental Protection Agency


### Commenter : Chris Korleski Commenter Type: State Government

Comment Excerpt Text: Ohio’s regulatory program lacks ground water monitoring requirements applicable to all CCR landfills and surface impoundments managing CCR disposal:

Ohio has a total of 57 CCR disposal sites consisting of 42 CCR ponds and 15 CCR landfills. Seventeen of these sites have ground water monitoring with four showing some indication of impact to ground water. There are 40 CCR disposal facilities in Ohio witho ut ground water monitoring.230

Ohio law excludes coal combustion ash from the definition of solid waste leaving 53 CCR disposal sites regulated under Ohio’s surface water program. Forty

- four of these sites were permitted decades ago prior to implementation of liner and ground water monitoring requirements in new permits. Thirteen sites permitted within the past decade do have liner and ground water monitoring permit requirements. Ohio regulates an additional four CCR landfills disposing of flue gas desulfuri zation sludge under the state solid waste program. These four landfills are lined and have ground water monitoring.

Response: The Agency acknowledges and appreciates the comment

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08270

- 1 

### Organization: Cliffs Natural Resources Inc. (Cliffs)


### Commenter : David Z. Skolasinski Commenter Ty pe: Other Company

Comment Excerpt Text: The Impact To Non

- Utilities Of A Subtitle C Determination Of CCRs

The SBP power plant is not a part of the Electrical Power Sector (Elect ric Utilities and Independent Power Producers) as defined in 75 Fed. Reg. at 35,130 because its primary business is to provide electricity and heat for the ore mining and processing operations as opposed to the sale of electrical power and heat to the publ ic. Therefore, CCRs produced at this plant are not subject to the proposed Rule. However, because of the precedent that will be set by this rulemaking and the possibility that EPA may proceed with rulemaking to address CCRs from N

on

- Electric Power Sector power plants at some future date, Cliffs is very interested in EPA's CCR waste determination in this rulemaking.

Except for a portion of the CCRs that are sold for beneficial use, all of the remaining CCRs that are produced at SBP are disposed in an engi neered landfill, the design of which includes an impermeable synthetic liner beneath the CCR pile, an impermeable synthetic cap over each filled landfill cell, a leachate collection system to remove stOlmwater that accumulates from within the CCR pile on t op of the liner, and monitoring wells to monitor the integrity of the landfill. The landfill was designed in conformance with Minnesota solid waste regulations. The Minnesota Pollution Control Agency approved the design of the landfill and issued a solid w aste disposal system permit for the landfill that includes monitoring and repOliing requirements among other conditions. There are other landfills in the state that are similarly designed, permitted, and operated by public utilities. Should EPA decide to r egulate CCRs as Subtitle C hazardous wastes, this would result in a significantly increased pennitting effOli for such landfills, along with significantly increased costs of construction, operation, monitoring, and reporting. This would result in a much gr eater burden to the state permitting agency, as well as to the owner and operator of the landfill with no environmental benefit being derived.

Response : The Agency acknowledges and appreciates the comment. This comment is regarding

a subtitle C rule. The commenter is referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA.231



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09232

- 4 

### Organization: Mississippi Department of Environmental Quality (MDEQ)


### Commenter : Trudy D. Fisher Commenter Type: State Government

Comment Excerpt Text: Currently there are 5 active on

- site CCR disposal units located throughout our state as well as other ash storage units and closed disposal units. The disposal units are regulated as nonhazardous solid waste landfills in accordance with the State of Mississippi Nonhazardous Solid Waste Management Regulations (Regulations). These landfills have been sited under stringent state siting criteria with approved liner systems, leachate colle ction systems, groundwater monitoring systems and various other technical features that are consistent with Subtitle D standards and that we believe are sufficiently protective of the environment.

Response: The Agency acknowledges and appreciates the co mment

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 31 

### Organization: Virginia Department of Environmental Quality


### Commenter : Jeffery A. Steers Commenter Type: State Government

Comment Excerpt Text: The Virginia DEQ has monitoring data for monitoring wells at permitted landfills, including captive industrial landfills that are receiving CCRs. Groundwater monitoring is required in accordance with our state laws and regulations. However, it should be noted that EPA's request is confusing. Environmental m onitoring wells are NOT drinking water wells, are usually constructed differently and lie within different aquifers. EPA should clarify what data they are looking to have provided, monitoring well data or down

- gradient drinking water well data.

Response: The Agency acknowledges and appreciates the comment

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 11 

### Organization: Arizona Department of Environmental Quality (ADEQ)


### Commenter : Benjamin H. Grumbles

Comment Excerpt Text: All CCR surface impoundments and landfills are subject to groundwater monitoring requirements. Corrective action is required if violations of discharge limitations or AWQSs

occur.

Response: The Agency acknowledges and appreciates the comment

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 33 

### Organization: Arizona Department of Environmental Quality (ADEQ)232



### Commenter : Benjamin H. Grumbles Commenter Type: State Government

Comment Excerpt Text: In Arizona, each individual Aquifer Protection Permit establishes Alert Levels and Aquifer Quality Limits to monitor any changes in groundwater quality that may be attributable to discharges from a facility. In most cases permittees are required to install point of compliance monitor wells pursuant to A.R.S. § 49

- 244. Each per mit has facility

- specific monitoring requirements pursuant to the provisions of A.A.C. R18

- 9

- A205, R18

- 9

- A206, and R18

- 9

- A207. Exceedances of Alert Levels in point of compliance wells trigger more intensive monitoring and an investigation regarding the sou rce(s) of exceedances. Because of the facility

- specific nature of groundwater monitoring and because an Aquifer Protection Permit is required to operate CCR facilities, groundwater is protected under existing state statute at these facilities as drinking

w ater, or where background contamination exceeds drinking water standards, so that there is no further degradation.

Response: The Agency acknowledges and appreciates the comment

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 5 

### Organization: Arizona Department of Environmental Quality (ADEQ)


### Commenter : Benjamin H. Grumbles Commenter Type: State Government

Comment Excerpt Text:

Arizona has five coal

- burning power plants managed by electric utilities. An additional coal

burning power plant is located o n the Navajo Nation. All ash landfills and surface impoundments

at electric utilities on non

- tribal land are operating under APPs and are subject to groundwater monitoring requirements.

Response: The Agency acknowledges and appreciates the comment

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09427

- 1 

### Organization: San Miguel Electric Cooperative, Inc. (San Miguel)


### Commenter : Joseph G. Eutizi Commenter Type: Electric Utility Company

Comment Excerpt Text: Since the early 1980’s, San Miguel has actively sought off

- site markets for the CCRs generated by the plant, however most of the CCR is ultimately returned to the adjacent mine for placement. Those placement activities are registered with the Texas Commission on Environmental Quality (TCEQ) and permitte d with the Railroad Commission of Texas (RCT)

– the state surface mining regulatory authority. As part of the TCEQ registration process, San Miguel was required to demonstrate that the native soil met, at a minimum, the standards for a compacted clay liner and to install groundwater monitoring wells. The areas that receive CCR are deed recorded in the appropriate counties and affected landowners were notified in advance of placement. The233

placement activities are spelled out in detail in San Miguel’s RCT per mit, and affected landowners are given an opportunity to participate in the RCT permitting process. Finally, the placement activities and areas are inspected by the RCT at least monthly.

Response: The Agency acknowledges and appreciates the comment

.



### Co mment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09431

- 12 

### Organization: Otter Tail Power Company


### Commenter : Farren Richard Commenter Type: Electric Utility Company

Comment Excerpt Text: A permit engineer within the department oversees the design, construction, operation, and

closure of landfill. A compliance officer is responsible for conducting periodic inspections of the operations at the site. A hydrologist reviews groundwater monitoring data and issues monitoring well requirements. A financial assurance offi cer oversees our annual financial assurance guarantees. A separate engineer oversees beneficial use of CCRs within the state State requirements include: receiving a permit for the landfill site, adhering to liner construction requirements (including a

synt hetic liner element, leachate collection and pumping system, and liner leak detection system), gaining approval for specific wastes that are deposited in the landfill, implementing

storm water run

- off and run

- on controls, installation and sampling of a gro undwater monitoring network around the landfill site, submitting groundwater sampling data, pumping and disposal of leachate generated on

- site, submitting annual reports including data analysis of groundwater monitoring and financial assurance reports, and following specific closure requirements.

Response: The Agency acknowledges and appreciates the comment

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09431

- 13 

### Organization: Otter Tail Power Company


### Commenter : Farren Richard Commenter Type: Electric Utility Company

Comment Excerpt Text: In addition to the MPCA, local city and county departments are also are involved with the siting of the Hoot Lake Plant site. Similar to the MPCA, the North Dakota Department of Health and

the South Dakota D epartment of Environment and Natural Resources oversee the solid waste sites at Coyote Station and Big Stone Plant, respectively. Again, the States are involved with the landfill design and construction requirements, permitting, overseeing operations, grou nd water monitoring data review, financial assurance review (North Dakota), and they issue final covering and post closure care requirements.

Response: The Agency acknowledges and appreciates the comment

.234



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09770

- 8 

### Organization: Upper Cumberland Group of the Sierra Club, et al.


### Commenter : Mary M. Mastin and Brian Paddock Commenter Type: Advocacy Group

Comment Excerpt Text: Public Water Testing is Not Reflective of Risks from Landfills

The TDEC Division of Water Sup ply only requires that treated water be tested once per year for contaminants that are typical of landfill leachate

– even though landfills are located upstream and along rivers with public water intakes. Sampling of groundwater monitoring wells (and sprin gs) at landfills is only required once every 6 months. Therefore, contaminated water could be provided to consumers in the event of a landfill release without the public or the water utility even knowing about it. Most water treatment plants have no abilit y whatsoever to remove

volatile or semi

- volatile organic compounds. An example of this problem is the Dickson County

Landfill. Trichloroethene was found in the treated water sent to tens of thousands of Dickson County residents during routine end

- of

- the

- ye ar sampling. Also, the former Rutherford County Landfill (with no liner) is located immediately across the Stones River from the Murfreesboro intake and upgradient from intakes owned by Consolidated Utilities and Smyrna.

Landfills Are Sometimes Un

- Monitor ed for Contamination

The list of 221 permitted landfills provided by TDEC does not include old former dumps that never received a permit and still do not to this day have a groundwater monitoring system. History and common sense say that these too are lea king because they have no constructed liner. These old dumps too would be expected to contain industrial chemicals and therefore represent substantial, unrecognized, and undetermined risks.

Even though permitted landfills may have groundwater monitoring p rogram, their monitoring programs may not always include analytical tests that can even detect the expected wastes that were disposed in the landfill. For example, even though thousands of tons of low

- level radioactive wastes were disposed of for years in Class I landfills, those landfills never had to monitor the groundwater for radioactive isotopes. For example, the Allied Waste Middle Point Landfill located along the Stones River in Rutherford County received such waste and never had

to monitor radioacti vity of groundwater or the Stones River. Further, the Waste Management Southern Services Class III / IV landfill in Davidson County does not have to monitor for volatile organic or semi

- volatile organic compounds even though industrial wastes are routinely disposed of as “special wastes”. Industrial wastes disposed of at the Southern Services Class III / IV landfill (by definition, these landfill categories should not include industrial waste) includes

thousands of tons of industrial wastes such as uncured rubber (semivolatile organic compounds), refractory bricks (that commonly have high levels of heavy metals), fiberglass (adhesives and resins), and asbestos.

Some currently permitted landfills do not even have a groundwater monitoring program, even though the wastes present a risk, the landfill is located adjacent to an important waterway, and

the landfill has no liner. The Central Pike Class IV construction / demolition debris landfill235

located along the Stones River in Hermitage has no monitoring wells or groundwater monitoring program at all. TDEC concluded in 1998 during the permit application that they “do not believe that groundwater beneath this site can be effectively monitored, by TDWM regulations, using monitoring wells ...”, yet the permit was issue d anyway. In fact, TDEC approved a vertical expansion of the landfill in 2003 that allowed for longer

- term waste disposal at the site.

The U.S. EPA has determined that construction / demolition debris is not “inert” and presents significant hazards. Howev er, no such groundwater monitoring testing requirements for volatile

and semi

- volatile organic compounds exist for the Southern Services Class III / IV landfill located along the Cumberland River nor the Central Pike Class IV demolition debris landfill adj acent to the Stones River. The U.S EPA identified these problematic components in construction / demolition waste: 1.) Containers with excess liquids such as adhesives, coatings, solvents, paints, and pesticides, 2.) Machinery lubricants and fuel, 3.) Inse parable bulk items such as asbestos and formaldehyde in carpet, 4.) Pressure treated wood, 5.) Roofing tar, 6.) Sulfates in drywall, 7.) Paints and coatings on wood, 8.) Arsenic, chromium, and creosote wood preservatives, 9.) Naphthalene, 10.) PCBs in tran sformers and capacitors, and 11.) Mercury in light switches and bulbs.

Landfills are Commonly Permitted in Extreme Karst Conditions

Karst geologic conditions of sinkholes, sinking streams, and shallow bedrock conduit flow are commonly found in middle and eastern Tennessee. Even though such conditions exist, TDEC’s minimum landfill design standards still apply as they would for any other landfill located in a more stable geologic environment. Recent conclusions at the Cedar Ridge Landfill near Lewisburg, a s an example, suggest that more stringent standards are needed in karst

environments.

According to Mr. James Clark, chief geologist for the TDEC Division of Solid Waste Management, the karst conditions at the Cedar Ridge preclude the site from meeting bas ic site suitability and monitoring standards. TDEC concluded in June 2005 “... the Site is not monitorable inside the permitted compliance boundary. At this time, it is obvious that groundwater that has been impacted from Cedar Ridge Landfill is moving off site before it can be detected under the current monitoring system”. Recently, even with this determination, Waste Management applied for a major expansion. Since the initial permit was issued, sinkhole collapses in the disposal cell areas have occurred, a significant cave system was identified beneath the landfill, and springs have been contaminated by landfill leachate.

TDEC often allows use of springs as an early warning detection system in lieu of wells. As an example, only one (1) groundwater monitori ng well even exists at the Cedar Ridge Landfill, and that well is an upgradient well. All other downgradient monitoring points are springs that represent no early warning detection system whatsoever. Once contamination is detected in a spring, the surface water off

- site has already been impaired, and there is no time to correct the problem before it migrates further downstream. As problematic as this policy is, landfill owners and operators continue to use springs as a main, and sometimes sole component of an early warning detection system. These example middle Tennessee landfills rely on spring monitoring:236

Cedar Ridge Landfill, Middle Point Landfill, Williamson County Landfill, and the Smith County

Landfill.

Response: The Agency acknowledges and appreciates the comment

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10496

- 2 

### Organization: Earthjustice, et. al.


### Commenter : Emily Greenlee, on behalf of Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text: [see original comment for Attachment 2 (or 10496.2): spreadsheet with state monitoring and environmental requirements:

Table 1: State Groundwater Monitoring Requirements: Coal Combustion Waste Landfills

Table 2: State Groundwater Monitoring Requirements: Coal Combustion Waste Surface Impoundment s

Table 3: State Environmental Control Requirements for Coal Ash Landfills (including liners and leachate collection systems)

Table 4: State Environmental Requirements for Coal Ash Surface Impoundments (including liners and leachate collection systems]

Response: The Agency acknowledges and appreciates the comment

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10498

- 3 

### Organization: Florida Electronic Power Coordinating Group, Inc. (FCG)


### Commenter : Carl Eldred Commenter Type: Electric Utility Company

Comment Excerpt Text: Beginning in the early 1980’s, existing FCG member CCR landfills and surface impoundments have been subject to groundwater and/or surface water monitoring requirements. Therefore, many of the key regulatory concepts contained in the Proposed Rules are already implemented and enforced by FDEP.

Response: The Agency acknowledges and appreciates the comment

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10498

- 5 

### Organization: Florida Electronic Power Coordinating Group, Inc. (FCG)


### Commenter : Carl Eldred Commenter Type: Electric Utility Company237

Comment Excerpt Text: Florida Has Effectively Regulated the Disposal of CCRs For Over Twenty Years

Florida’s Solid Waste Management Rule, Chapter 62

- 701, Florida Administrative Code (F.A.C.),

addresses the management of all solid waste. In 1993, FDEP attempted to clarify the disposal requirements for industrial solid wastes (such as CCRs) in Rule 62

- 701.720, F.A.C. This rule subjected all industrial solid waste disposal facilities to the same requirements a s “typical” municipal solid waste landfills, but also contained procedures for specific facilities or industry groups to seek exemptions from these requirements. The FCG and two other regulated interests submitted exemption requests and provided data to su pport these requests. FDEP granted all three requests and noted that: (1) Class I landfill (i.e., municipal solid waste landfill) standards would not automatically apply to these facilities; (2) these disposal facilities would continue to

be evaluated on a case

- by

- case basis; and (3) FDEP anticipated initiating rulemaking to address industrial waste disposal.[Footnote 1: FDEP initiated this rulemaking but it has been placed on hold due to competing priorities and the instant rulemaking.] See Letter from FDE P to Thomas DeRose (Oct. 10, 1994) and Letter from FDEP to William Preston (Feb. 5, 1996), Attachment “B.” Design and operational criteria for new industrial waste disposal facilities, such as CCR landfills, are established on a case

- by

- case basis, althoug h FDEP staff typically refers to Florida’s Solid Waste Management Rule as a starting point. For example, several FCG members have constructed, or are currently in the process of constructing, new CCR landfills or expanding existing CCR landfills with liner s, leachate collection systems, and augmented groundwater monitoring systems.

F.A.C. Supplementary landfill specific groundwater monitoring, leachate monitoring, and corrective action requirements applicable to solid waste management facilities are set fo rth in Florida’s Solid Waste Management Facilities Rule in Chapter 62

- 701, F.A.C. Notably, groundwater monitoring plans for landfills must include downgradient detection wells located within a facility’s zone of discharge and no more than fifty (50) feet f rom the edge of the solid waste disposal unit. Rule 62

- 701.510(3)(a), F.A.C.[Footnote 2: Pursuant to Rule 62

- 701.510(1), F.A.C., this regulatory provision does not apply to landfills in operation prior to January 6, 1993. As noted above, however, FDEP typi cally looks to this rule when establishing groundwater monitoring requirements in a power plant’s conditions of certification or other applicable permit.] Additionally, downgradient compliance wells must be located at or immediately adjacent to the complia nce line of the zone of discharge. Rule 62

- 701.510(3)(b), F.A.C. Under Chapter 62

- 701, F.A.C. groundwater preventive action, including more frequent sampling and reporting, is triggered when any of the monitoring parameters are detected at levels significa ntly above background levels. Rule 62

- 701.510(7)(a), F.A.C. If sampling results indicate that water quality standards or criteria are likely to be violated outside the zone of discharge, a prevention measures plan must be submitted to FDEP and implemented. Rule 62

- 701.510(7)(a)5., F.A.C. Corrective action is required when any contaminants are detected in compliance wells, in exceedance of background levels and state FDEP water quality standards or criteria. Rule 62

- 701.510(7)(c), F.A.C.

Response: The Agen cy acknowledges and appreciates the comment

.238



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10505

- 2 

### Organization: County of Marathon, Wisconsin, Department of Solid Waste Management


### Commenter : Roger Zimmermann Commenter Type: Local Government

Comment Excerpt Text: The Area B Landfill, owned and operated by Marathon County, is a Subtitle D municipal solid waste landfill. It meets or exceeds all regulatory requirements set forth by the Wisconsin Department of Natural Resources and RCRA Subtitle D. It has and con tinues to serve as the disposal location for residents and industry of central Wisconsin since beginning operations in 1993. During this time, the CCRs were not only landfilled, but were also used beneficially as alternative daily cover and within the foot print of the landfill as road making materials. Of the waste accepted annually, CCRs have accounted for an approximate 15

- 25% of the waste tonnage. A decision was made to accept CCRs because analyses of the CCRs showed that the

concentrations of the contam inant compounds were well below the Wisconsin Administrative

Code NR600

- series levels considered toxic and hazardous and below the NR538 standards for beneficial reuse. For instance, one analysis (EPA 6010 method) of CCRs, commonly accepted at

the Area B L andfill, showed following (NR661.24 Table 2 used) toxicity characteristics : 1500+ times less than the maximum level concentration for A Arsenic: toxicity characteristics 30,000+ time less than the maximum level concentration for Barium: toxicity character istics 7600+ times less than the maximum level concentration for Cadmium: toxicity characteristics 50+ times less than the maximum level concentration for Y Chromium: toxicity characteristics 3500+ times less

than the maximum level concentration for toxici ty D Lead: characteristics 14500+ times less

than the maximum level concentrati on for Silver: toxicity characteristics While claims of groundwater contamination have been brought forth in the recent In Harm's Way_ Lack of Federal Coal Ash Regulation Endang ers American and Their Environment, issued by the several environmental groups, the Wisconsin disposal and holding locations cited in the study were not Subtitle D landfills. They were either unlined, or minimally lined with clay. A state

- of

- the

- art
Subtit le D sanitary landfill's environmental protections systems, such those found in Wisconsin Administrative Code NR504.04, will indeed provide the means to protect Americans andtheir environment. I offer this data from the landfill groundwater monitoring regi men as evidence: Up

gradient groundwater monitoring well (R23) o Well constructed in 1988 o Sampling done 1988

- present o Conductivity over this period at between 314umho/cm and370umho%m o Sulfates present throughout sampling cycle Lead, arsenic, silver, ca dmium, chromium and boron all present in early o samples (prior to beginning of disposal activity)

- all below enforcement

standards D Side

- gradient groundwater monitoring well (R16) o Well constructed in 1988 o Sampling done 1988

- present Conductivity over this period at mid

- 300umho/cm

o o Sulfates present throughout sampling cycle Lead, arsenic, silver, cadmium, chromium and boron all present in early o samples (prior to beginning of disposal activity)

- all below enforcement standards ~ Down

gradient grou ndwater monitoring well (R26) o Well constructed in 1989 o Sampling done 1989

- present o Conductivity fluctuated between 320umho/cm and401umho/cm o Sulfates (prior to beginning of disposal activity) present at consistent levels similar to those of up and side gradient wells239

o Lead, arsenic, silver, cadmium, chromium and boron all present in early samples (prior to beginning of disposal activity)

- all below enforcement standards

D Down

- gradient groundwater monitoring well (R2?) o Well constructed in 1989 o Sampling done 1989 to present o Conductivity fluctuated between 320umho/cm and434umho/cm o Sulfates (prior to beginning of disposal activity) present at consistent levels similar to those of up and side gradient wells o Lead, arsenic, silver, cadmiu m, chromium and boron all present in early samples (prior to beginning of disposal activity)

- all below enforcement standards While CCRs were disposed of in the Area B Landfill from its inception, and considering that Area B leachate analyses show conduct ivity ranging in the mid

- 6000umho/cm, sulfates averaging around 450 mg/L and boron at 9500 ug/L, it is evident when comparing against the groundwater data, that the groundwater is not impacted by residual compounds of CCRs. It

would seem that the construct ion standards and requirements of Subtitle D, as regulated and enforced by the State of Wisconsin, have indeed protected human health and the environment. We believe that states, like Wisconsin, have been effectively and diligently regulating the

managemen t and disposal of CCRs.

Response: The Agency acknowledges and appreciates the comment

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10697_DEN

- 007

- 3 

### Organization: Wyoming Department of Environmental Quality


### Commenter : John Corra Commenter Type: State Government

Comment Excerpt Text: EPA Issue: (2) Groundwater monitoring WDEQ SHWD Response: Groundwater monitoring is required. WDEQ WQD Response: WQD rules require a demonstration that “facility poses no threat of discharge to groundwater.”

Respon se: The Agency acknowledges and appreciates the comment

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11022_CHA

- 057

- 6 

### Organization: Santee Cooper


### Commenter : Jay Hudson Commenter Type: Electric Utility Company

Comment Excerpt Text: South Carolina's DHEC's Regulations

There are solid waste programs already in place in South Carolina which are being administered successfully. SC DHEC has a robust program that is protective of the environment. DHEC's industrial solid waste regulations were revised in 2008 and now meet virtually all the Subtitle D requirements proposed in the rule for future landfills. DHEC already requires groundwater240

monitoring around Santee Cooper's ash ponds and at our landfill. Groundwater is monitored at

Santee Co oper by a professional geologist and the analytical results are submitted to DHEC

semi

- annually.

For states, such as South Carolina, that currently have robust regulations, this rule would be at best somewhat duplicative under the Subtitle D option and o verkill under the Subtitle C 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 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

- 2009

- 06 40

- 11660_K

- 075

- 5 

### Organization: Santee Cooper


### Commenter : Tommy Edens Commenter Type: Electric Utility Company

Comment Excerpt Text: We request that EPA carefully considers comments from industry with regard to actual projections of the cost. SC DHEC has a robust program that is protective of the environment. DHEC's industrial solid waste regulations now meet virtually all the Subtitle D requirements proposed in the rule for future landfills. DHEC already requires groundwater monitoring around Santee Cooper's ash ponds and at our landfill. Groundwater is monitored at Santee Cooper by a professional geologist and the analytical results ar e submitted to DHEC semi

- annually.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0163

- 3 

### Organization: Ohio Environmental Protection Agency


### Commenter : Pamela Allen Commenter Type: State Government

Comment Excerpt Text: Ohio has a total of 57 CCR disposal units consisting of 42 CCR ponds and 15 CCR landfills. Fifty

- three CCR disposal sites are permitted and regulated under Ohio EPA's surface water program due to Ohio law excluding coal combustion a sh from the definition of solid waste. Forty

- four of these sites were permitted decades ago prior to implementation of liner and ground water monitoring requirements in new permits. Nine sites permitted within the past decade have liners and ground water m onitoring permit requirements. Ohio EPA's solid waste program regulates an additional four CCR landfills disposing of flue gas desulfurization sludge. Flue gas desulfurization sludge is not excluded under Ohio law and is a solid waste. These four landfills are lined and have ground water monitoring. As Ohio solid waste landfills, these are subject to siting, design, operation, closure, post

- closure, financial assurance, and corrective action regulatory requirements.241

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0183

- 19 

### Organization: Colorado Department of Public Health and Environment


### Commenter : Joe Schieffelin Commenter Type: State Government

Comment Excerpt Text: In Table 23, on page 36 of the EF comments, it is noted that Colorado is one of does not require 30 years of post

- closure groundwater monitoring at on

- site CCR landfills. This is not correct. Colorado statute exempts on

- site disposal of any solid wastes, i ncluding CCRs, from the requirement to obtain a local land

- use permit (called a Certificate of Designation), but these on

site disposal locations must still comply with our solid waste regulations (Section 30

- 20

- 102(3), CRS). And

- 30 years of post

- closure ground water monitoring is definitely part of our solid waste regulations for all landfills (Sections 3.6, 6 CCR 1007

- 2, Part 1).

In Table 24, on page 36 of the EF comments, it is noted that Colorado is one of 36 states that do not require 30 years of p ost

- closure ground water monitoring at CCR surface impoundments. This is not correct. Any surface impoundment that closes with waste remaining in place closes as

a landfill. And

- 30 years of post

- closure ground water monitoring is definitely part of our s olid waste regulations for all landfills (Sections 3.5, 6 CCR 1007

- 2, Part 1).

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0183

- 21 

### Organization: Colorado Department of Public Health and Environment


### Commenter : Joe Schieffelin Commenter Type: State Government :

Comment Excerpt Text: In Table 25, on page 39 of the EF comments, it is noted that Colorado exempts on

- site CCR landfills from the requirement to monitor ground water. That is not c orrect. Colorado statute

exempts on

- site disposal of any solid wastes, including CCRs, from the requirement to obtain a

local land

- use permit (called a Certificate of Designation), but these on

- site disposal locations must still comply with our solid waste regulations (Section 30

- 20

- 102(3), CRS). And

- groundwater monitoring is most definitely required by our solid waste regulations for all landfills (Section 2.2, 6 CCR 1007

- 2, Part 1).

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0183

- 2 

### Organization: Colorado Department of Public Health and Environment


### Commenter : Joe Schieffelin Commenter Type: State Government242

Comment Excerpt Text: In Table 2, on page 26 of the EJ comments, it is noted that C olorado is one of seven states that supposedly exempt on

- site CCR landfills from the requirement to monitor ground water when the CCR is disposed of on

- site. This is not correct. Colorado statute exempts on

- site disposal of any solid wastes, including CCRs , from the requirement to obtain a local land

- use permit (called a Certificate of Designation), but these on

- site disposal locations must still comply with our solid waste regulations (Section 30

- 20

- 1 02(3), CRS). And

- groundwater monitoring is most

defin itely required by our solid waste regulations for all landfills (Section 2.2, 6 CCR 1007

- 2, Part 1).

In Table 4, on page 27 of the EJ comments, it is noted that Colorado is one of 19 states that only requires semiannual ground water monitoring at CCR lan dfills. This is not correct. Our regulations allow the Department to determine the appropriate frequency of ground water monitoring, but the monitoring program must be protective of human health and the

environment.

In the text explaining Table 4, the EJ comments state that quarterly monitoring must be required as the minimum necessary to ensure protection of ground water, early detection of contamination, and seasonal variations. We disagree. There are many circumstances where less frequent monitoring ca n be completely protective. For instance, in Colorado we have many arid areas where there is no ground water for hundreds of feet below the landfill. This is usually caused by very thick shales or aquacludes that naturally occur in the local geology. Monit oring wells at these facilities are usually dry all year and every year

- this type of monitoring well does not need to be sampled every quarter.

In Table 6, on page 28 of the EJ comments, it is noted that Colorado is one of 33 states that does not require a minimum of 3 downgradient ground water monitoring wells and 1 upgradient well at landfills. This is technically true. However, our regulations require a sufficient (statistically adequate) number of ground water samples to represent the quality of background ground water and ground water at the relevant points of compliance (Appendix B, 6 CCR 1007

- 2, Part 1). This means that we can require whatev er number of upgradient and downgradient monitoring wells are necessary to be adequately protective given the local geologic and hydrologic regime. We would argue this regulatory construct is better than blind adherence to a "1

- up and 3

- down" ground water monitoring well program.

In Table 7, on page 28 of the EJ comments, it is noted that Colorado is one of 33 states that does not require a minimum of 3 downgradient ground water monitoring wells and 1 upgradient well at CCR surface impoundments. This need s to be clarified. Please see our comment to Table 6

above.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0191

- 4 

### Organization: Michigan Department of Environmental Quality (MDEQ)


### Commenter : Liane Shekter Smith Commenter Type: State Government243

Comment Excerpt Text: The report states that Michigan does not require groundwater monitoring at CCR landfills, and only requires post

- closure groundwater monitoring at surface impoundments. Michigan requires groundwater and/or surface water discharge monitoring at all CCR disposal areas. The law does allow exemptions based on the site geology; however, the only exemptions that have been granted are for grandfathered

- in sites that do not have usable aquifers, or are regulated by National Pollutant Discharge Elimination System (NPDES) permits. Michigan currently has four surface impoundments that accept CCR. Two of the four are the Karn and Weadock sites, which are licensed as landfills. As noted above, these fa cilities are located at sites without usable groundwater. These two sites do currently perform groundwater monitoring, but the results are being used to determine compliance with surface water discharge limits. The remaining two have

a combination of surfa ce water discharge monitoring and groundwater monitoring wells. All other CCR landfills in the state monitor groundwater. All existing and new sites must be designed, sited, and operated to ensure that all of the requirements for the protection of surface and groundwater that are contained in Part 31, Water Resources Protection, of the Michigan Natural Resources and Environmental Protection Act, 1994 PA 451, as amended, are met.

Response: The Agency acknowledges and appreciates the comment.



### Comment Nu mber: EPA

- HQ

- RCRA

- 2011

- 0392

- 0191

- 6 

### Organization: Michigan Department of Environmental Quality (MDEQ)


### Commenter : Liane Shekter Smith Commenter Type: State Government

Comment Excerpt Text: Michigan has issued two construction permits for CCR landfills since 2000; the liner systems for these landfills both included at least one composite liner, secondary liners, and secondary collections systems. The most recent construction permit for a CCR landfill was issued in 2010 for a previously undeveloped, or "greenf ield" site. The design included a double

- composite liner system, with a secondary collection system. Michigan has only issued two other construction permits for CCR landfills between the end of 1992 and 2002, and of those, one was designed

with a 60

- mil hi gh

- density polyethylene (HDPE) liner system and leachate collection system, and the other was designed with a primary composite liner, secondary collection system, and secondary liner. All of these facilities are subject to groundwater monitoring and have extensive groundwater monitoring networks, ranging from 3

- 6 upgradient monitoring wells and from 5

- 15 downgradient monitoring wells, exceeding the minimum requirement of one upgradient and three downgradient wells used as the benchmark in the Earth justice report. So, even though Michigan's regulations do allow for a number of variances in the design of CCR disposal sites, the exemptions or variances have been only utilized in the grandfathering in of disposal sites that were accepting waste prior to 1978. Only those sites that did not show exceedances of groundwater or surface water protection standards were allowed to remain operating. Those sites that did show impacts were required to cease operations, cap the existing fill area, and develop

corrective ac tion plans.

Response: The Agency acknowledges and appreciates the comment.244



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0197

- 5 

### Organization: Oklahoma Department of Environmental Quality (DEQ)


### Commenter : Scott Thompson Commenter Type: State Government

Comment Excerpt Text: Table 2. Is Groundwater Monitoring Mandatory at CCR Landfills? [from Docket ID EPA

- HQ

RCRA

- 2009

- 0640

- 6315, hereafter referred to as "the Report"]

The Report answers this question as "No" for Oklahoma, apparently based on the fact DEQ rules allow for variances from groundwater monitoring and an incorrect rule implementation that existing sites are grandfathered.

Variance The Report is correct that a variance to the groundwater monitoring provisions for CCR landfills may be granted by DEQ; [Footnote 3: 27A O.S. § 2

- 10

- 304(A) states that requests for variances from any rule must be made part of the permit application and the public must be given the opportunity to request a public meeting or administrative Permit hearing.] however, this is hardly a deficiency in Oklahoma's CCR landfill regulations. In fact, we are not aware of any state permitting program anywhere in the nation that does not include some provision for a permitted entity to request a variance from one or more state regulat ions. To be granted a variance, the permitted entity must demonstrate that operations under the variance will equal or exceed the protections accorded by the rule for which the variance is requested and will not result in a

hazard to human health or the en vironment. No Oklahoma CCR landfills have requested or received a variance from any groundwater monitoring provisions of DEQ rules.

Grandfathering DEQ's current regulations for CCR landfills became effective in 2003 [Footnote 4: Title 252, Chapter 515 of the Oklahoma Administrative Code (OAC 252:515).]. No regulatory requirements for CCR landfills were grandfathered, including requirements for groundwater monitoring. In fact, the rules for Groundwater Monitoring and Corrective Action specifically state, "[ t]he requirements of this Subchapter apply to all new and active land disposal facilities throughout the active life and post

- closure monitoring period" [Footnote 5: OAC 252:515

- 9

- 1(a).]. CCR landfills fall within the definition of "land disposal facility' ' and clearly were not intended to be grandfathered.

Table 4. Is Quarterly Monitoring Required at CCR Landfills?

The Report answers this question as "No" for Oklahoma and gives the impression that even if groundwater monitoring were required, only annual monitoring is mandated. This is incorrect. DEQ rules require quarterly monitoring while determining background water quality, reduced to

at least semi

- annual monitoring during the active life of the site. Our rules authorize the groundwater monitoring fre quency to be reduced to annually during the active life, but only after consideration is given to several factors [Footnote 6: OAC 252:515

- 9

- 31 and 9

- 73.] It should be noted that no CCR landfills in Oklahoma have asked for or received approval for annual245

m onitoring.

The Report further states, "all of the states that require groundwater monitoring at CCR landfills require only that monitoring wells be sampled twice a year; yet semi

- annual sampling is insufficiently protective. In order to ensure protection of groundwater and early detection of any contamination as well as understand seasonal variations in sampling results, quarterly sampling must be required." The DEQ respectfully disagrees with this statement. One of the major factors in determining a prope r groundwater monitoring frequency is the type of soils under a landfill, which affect the speed of groundwater flow. In locations where the natural soils are a very tight clay with extremely low permeability, groundwater flow may be on the order of a few centimeters per year and decades could pass before a release from a landfill unit is finally detected at the well locations. Likewise, in locations where the natural soils are sandy or the

water

- bearing formation is quite fractured, groundwater flow may be on the order of many meters per year, and it is quite possible a release from the landfill could reach the well locations within a matter of a few months. To conclude that quarterly monitoring is the only frequency that will "ensure protection of groundwa ter and early detection of any contamination" is without basis. It should be noted that even the current federal rules for municipal solid waste landfills and hazardous waste disposal facilities require semiannual groundwater monitoring [Footnote 7: 40

CFR 258.54 and 264.98/265.92, respectively.].

Table 6. Are a Minimum of Three Downgradient Wells and One Upgradient Well Required at

CCR Landfills?

The Report answers this question as "No" for Oklahoma, apparently based on the fact state rules

and statutes authorize facilities to request variances from certain regulatory requirements. The DEQ fully incorporates its comments to Table 2 above as if fully stated herein. No CCR landfill in Oklahoma has requested or received a variance from DEQ rules that require a minimum of one upgradient and three downgradient monitoring wells, and all of them have more than the minimum number. While state statutes authorize variances from DEQ rules, such a request must be included in the permit application and is subject to pu blic comment and hearings.

Table 8. Type of Liner Required for New CCR Landfills.

The Report seems to suggest Oklahoma's rules for liners at new CCR landfills are inadequate because variances are authorized. The DEQ fully incorporates its comments to Ta ble 2 as if fully stated herein. While no applications for a new CCR landfill, or lateral expansion of an existing CCR landfill, have been submitted to DEQ in many years, DEQ rules nonetheless already require new CCR landfills, and lateral expansions of ex isting CCR landfills, to be equipped with a composite liner system meeting the current federal requirements for MSWLFs, [Footnote 8:

OAC 252:515

- 11

- 2.] which are equivalent to those specified in the June 21, 2010 proposed rule.

While state statute s authori ze variances from DEQ ru les, such a request must be included in the permit application and is subject to public comment and hearings.

Table 10. Is a Leachate Collection System Mandatory for CCR Landfills? The Report answers this question as "No" for Oklahoma, apparently based on the fact state rules and statutes authorize facilities to request variances from certain regulatory requirements. The246

DEQ fully incorporates its comments to Table 2 if fully stated herein. While no applications for a

new CCR l a n dfill, or lateral expansion of an existing CCR landfill, have been submitted to DEQ in many years, DEQ rules nonetheless already require new CCR landfills, and lateral expansions of existing CCR landfills, to be equipped with a leachate collection system meeting the current federal requirements for MSWLFs, [Footnote 9: OAC 252:515

- 13

- 1.] which are equivalent to those specified in the June 21, 2010 proposed rule. While state statutes authorize variances from DEQ rules, such a request must be included in th e permit application and is subject to public comment and hearings.

Table 12. Is Daily Cover Mandatory at CCR Landfills?

The Report answers this question as "No" for Oklahoma, noting that DEQ's CCR landfill rules "require some co ver... but not daily." DEQ rules specify that cover at CCR landfills must be applied according to the permit [Footnote 10: OAC 252:515

- 19

- 51(c)(2).]. To our knowledge, DEQ has never received a complaint of blowing dust or identified any other issue that could be

attributed to a fai lure to apply cover either daily or even at a reduced frequency that may be specified in the permit.

Table 13. Are Dust Controls Mandatory at CCR Landfills?

The Report answers this question as "No" for Oklahoma, apparently based on the fact state rules

a nd statutes authorize facilities to request variances from certain regulatory requirements. The DEQ fully incorporates its comments to Table 2 as if fully stated herein. DEQ rules for dust control require all solid waste disposal facilities, including CCR landfills, to prevent visible fugitive dust emissions beyond the property boundary [Footnote 11: OAC 252:515

- 19

- 36(c).]. While state statutes authorize variance from DEQ rules, such a request must be included in the permit application and is subject to pub lic comment and hearings. To date, no CCR landfill has requested such a variance.

Table 14. Are Run

- off Controls Mandatory at CCR Landfills?

The Report answers this question as "No" for Oklahoma, apparently based on the fact state rules

and statutes auth orize facilities to request variances from certain regulatory requirements. The DEQ fully incorporates its comments to Table 2 as if fully stated herein. DEQ rules for run

- off controls state that all active land disposal facilities, including CCR landfills , must have a run

- off control system capable of managing all stormwater resulting from a 24

- hour, 25

- year storm [Footnote 12: OAC 252:515

- 17

- 2.]. This is equivalent to the current federal standards for MSWLFs and to those specified in the June 21, 2010 pro posed rule. While state statutes authorize variances from DEQ rules, such a request must be included in the permit application and is subject to public comment and hearings. To date, no CCR landfill has requested such a

variance.

Table 17. Can CCR Landfil ls be constructed in the Water Table?

The Report correctly notes that Oklahoma "prohibit[s] the location of CCR landfills within a certain distance of the water table." In fact, current DEQ rules are stricter than those proposed by247

EPA under the Subtitle D option of the June 21, 2010 proposed rule. Under DEQ rules, all land disposal facilities, including CCR landfills, must have a five

- foot separation between waste and groundwater, [Footnote 13: OAC 252:515

- 11

- 3(a).] whereas EPA's proposed rule requires on ly a

two

- foot separation.

Table 19. Are Financial Assurances Mandatory for CCR Landfills?

The Report answers this question as "No" for Oklah oma by stating variances from fin ancial assurance obligations are authorized; however, the Report is incorrect. Ok lahoma statutes at 27A O.S. § 2

- 10

- 70l(C) require financial assurance at all landfill disposal sites, including CCR landfills. There is no provision by rule or statute for any landfill disposal site to be relieved of its financial assurance obligation.

T able 21. Type of Final Cover Required for CCR Landfills.

The Report seems to suggest Oklahoma's rules for final cover at CCR landfills are inadequate because variances are authorized. The DEQ fully incorporates its comments to Table 2 as if fully

stated h erein. DEQ's current rules for final cover at CCR landfills are stricter than those proposed by EPA. DEQ rules require a 24

- inch barrier layer with a hydraulic conductivity of 10 x

- 5cm/sec overlain with a one

- foot erosion layer, [Footnote 14: OAC 252:515

- 19

- 53.] whereas EPA's proposed rule requires a minimum of 18 inches and six inches, respectively. While state statutes authorize variances from DEQ rules, such a request must be included in the permit application and is subject to public comment and hearin gs. To date, no CCR landfill has requested such a variance.

Table 23. Is 30 Years of Post

- Closure Groundwater Monitoring Required for CCR Landfills?

While the Report correctly states Oklahoma currently does not require 30

- year post

- closure monitoring at CCR landfills, without telling the full story the Report leaves the impression Oklahoma is somehow deficient in its CCR landfill program. Current state statutes specify a

post

- closure monitor ing period of "eight year[s]... or such postclosure time period as may be mandated under the federal Solid Waste Disposal Act or determined necessary by the Department [of Environmental Quality] on a case

- by

- case basis considering the nature of the waste disposed" [Footnote 15: 27A O.S. § 2

- 10

- 701(A)(2).]. Since current f ederal law does not require a 30

- year post

- closure monitoring period for CCR landfills, Oklahoma's current requirement is hardly deficient. If a final EPA rule mandates a 30

- year post

- closure monitoring period, Oklahoma statutes will already require the DE Q to extend the post

- closure monitoring period at CCR landfills to 30 years.

Tables 25 and 27.

These tables present side

- by

- side comparisons between EPA's 2010 Regulatory Impact Analysis and the Report's authors' analyses of each state CCR landfill regu lations with respect to groundwater monitoring and liner requirements. Since we have already provided our assessment for these areas previously, no additional comment will be provided here.248

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0219

- 17 

### Organization: Commonwealth of Kentucky, Department for Environmental Protection, Division of Waste Management


### Commenter : Anthony Hatton Commenter Type: State Government

Comment Excerpt Text: Comments on comments submitted by Earthjustice, Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, and Physicians for Social Responsibility (attachment one of

document No. EPA

- HQ

- RCRA

- 2009

- 0640

- 6315), addressing gaps in state government regulatory programs applicable to the management of CCRs (pgs. 17

- 63).

These comments point out a number of inconsistencies among various state approaches to regulating CCR s, but the Commonwealth does not believe the comments are factually accurate.

The most notable are:

a) Table 2 on page 26 states that ground water monitoring is not mandatory in Kentucky for CCR landfills because of a variance provision and grandfatherin g of older sites. This is apparently a misreading of 401 KAR 30:020 Section 2, which is the general variance regulatory language that applies to all waste regulations in Kentucky

- hazardous, solid and special. Also, landfills permitted before 1992 were re quired to have groundwater assurance plans under solid waste rules. Ground water monitoring is currently required by 401 KAR 45:160 and is in place at all CCR landfills in Kentucky.

b) Table 6 on page 28 implies that Kentucky does not have an effective g round water monitoring programs since it does not specify a minimum of three downgradient wells. 401 KAR 45:160 requires both a minimum of two downgradient wells and requires that a “groundwater monitoring plan shall accurately analyze groundwater quality and characterize regional and local groundwater flow and flow systems.” This requirement has resulted in number of Kentucky CCR landfills having three or more downgradient monitoring wells.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0219

- 21 

### Organization: Commonwealth of Kentucky, Department for Environmental Protection, Division of Waste Management


### Commenter : Anthony Hatton Commenter Type: State Government

Comment Excerpt Text: j) Table 25 on page 39 [from Earthjustice et. al. attachment one of document No. EPA

- HQ

RCRA

- 2009

- 0640

- 6315] states that no ground water monitoring is required, using the flawed249

logic described above concerning variances. Ground water monitoring is required by 401 KAR

45 :160 and is in place at all CCR landfills in Kentucky.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0222

- 4 

### Organization: Kansas Department of Health and Environment


### Commenter : William Bider Commenter Type: State Government

Comment Excerpt Text: Specific Concerns with "State of Failure" Report

Part II, Exposing State Secrets: Grossly Inadequate State Programs

Table 2 of this report provides a summary of what the authors perceive as "State

- b y

- State failure to impose basic Safeguards at Coal Ash Dumps. " Our comments below address each area of assessment as related to the Kansas permitting requirements and environmental controls.

Overview:

The report indicates that Kansas has inadequate regu lations and permitting requirements with respect to every assessment criteria listed in the table. As explained below, the authors of the report failed to ask the proper questions when their survey was performed, thus they did not understand the regulatory mechanism that are in place to provide appropriate environmental controls and safeguards.

-- Require GW Monitoring at all new and existing ponds: Report answer

- No o Incorrect. Kansas Administrative Regulation (K.A.R.) 28

- 29

- 23(g) states, "If ground wate r which passes beneath a disposal facility is currently used as a public drinking water supply or is designated by the state of Kansas for future use as a drinking water supply, the naturally occurring ground water quality beyond the disposal site property boundary shall not be degraded. If ground water which passes beneath a disposal area or processing facility is currently used or designated by the state for purposes other than as a drinking water supply, the ground water beyond the disposal area property boundary shall be maintained at a quality as specified in the disposal area permit." o GW monitoring is conducted at all existing coal ash ponds in Kansas

-- Require GW monitoring at all new and existing landfills: Report answer

- No

o Incorrect. K.A.R. 2 8

- 29

- 23(g) states in pertinent part, "If ground water which passes beneath a disposal facility is currently used as a public drinking water supply or is designated by the state of Kansas for future use as a drinking water supply, the naturally occurring gr ound water quality beyond the disposal site property boundary shall not be degraded. If ground water which passes beneath a disposal area or processing facility is currently used or designated by the state for purposes other than as a drinking water supply , the ground water beyond the disposal area property boundary shall be maintained at a quality as specified in the disposal area permit."250

o GW monitoring is conducted at all existing coal ash landfills in Kansas

-- Require composite liners for all new pond s: Report answer

- No

o Correct.

-- Require composite liners for all new landfills : Report answer

- No o Correct. However, KDHE does not believe that composite liners are necessary to adequately protect groundwater/public drinking water supplies. Dry coal combustion flyash is hygroscopic and consists of very fine particle sizes. This causes the material to bind up and not allow moisture to percolate through. Furthermore, the pozzolanic properties of flyash cause it to form a crust when exposed to moisture. This crust forms a barrier to moisture infiltration and reduces the ability for chemical constituents to leach from flyash. For disposal of such material, a composite liner with drainage media for collecting percolation water adds little benefit to ground water protection. Therefore, KDHE requires operational controls where the first lift of flyash is deposited in a moisture deficient state creating an effective barrier that assures protection of groundwater from any possible contaminants that may be presen t in the flyash.

-- Prohibit ash ponds from being constructed in the water table: Report answer

- No o Incorrect . Through permit conditions and Bureau of Waste Management Policy 02

- 02, "New solid waste disposal units must have a minimum vertical separatio n of 5 feet from the lowest point of a solid waste disposal area (e.g., bottom of the base of the sump) to the highest predicted groundwater elevation in the uppermost aquifer underlying the disposal area. The minimum vertical separation must be provided b y naturally occurring, in

- situ soil or geologic material, or approved alternative material. The uppermost aquifer means the first saturated zone able to fully recharge within 24 hours after one well volume is removed, and whose boundaries can be

identified and mapped from hydrogeologic data. This term includes all hydraulically connected aquifers."

-- Prohibit ash landfills from being constructed in the water table: Report answer

- No o Incorrect. Through permit conditions and Bureau of Waste Management Pol icy 02

- 02, "New solid waste disposal units must have a minimum vertical separation of 5 feet from the lowest point of a solid waste disposal area (e.g., bottom of the base of the sump) to the highest predicted groundwater elevation in the uppermost aquifer underlying the disposal area. The minimum vertical separation must be provided by naturally occurring, in

- situ soil or geologic material, or approved alternative material. The uppermost aquifer means the first saturated zone able to fully recharge within 24 hours after one well volume is removed, and whose boundaries can be identified and mapped from hydroge o logic data. This term includes all hydraulically connected aquifers ."

-- Require financial assurance for coal ash ponds: Report answer

- No

o Incorre ct . All coal ash ponds must demonstrate adequate financial assurance for closure and

post

- closure care.

-- Require financial assurance for coal ash landfills: Report answer

- No o Incorrect. All coal ash landfills must demonstrate adequate financial assur ance for closure and251

post

- closure care.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0228

- 10 

### Organization: Virginia Department of Environmental Quality (DEQ)


### Commenter : Jeffery Steers

Commenter Type: State Government

Comment Excerpt Text: o Groundwater Monitoring. Industrial landfills are required to have groundwater monitoring networks that meet the provisions of 9VAC20

- 81

- 250, unless the landfill has been designed with a double liner system. I ndustrial landfills can use a double liner system in lieu of groundwater monitoring; however, those landfills must then be designed and built with that double liner system which includes a witness zone between the liners. If a leakage action rate within th e witness zone is exceeded, then the landfill will commence groundwater monitoring in

accordance with 9VAC20

- 81

- 250.

The requirements for groundwater monitoring at industrial landfills include system requirements, such as network specifics for at least on e upgradient and three downgradient monitoring well; sampling and analysis criteria including QA/QC, analytical and sampling methods, statistical analysis; establishment of groundwater protection standards; and a specifically designed monitoring program fo r industrial landfills

.

o Post

- Closure Monitoring. Virginia requires ten years of post

- closure monitoring for industrial landfills; however, if post

- closure monitoring is not terminated after ten years if on

- going issues, such as groundwater corrective ac tion, have not been resolved

.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0236

- 5 

### Organization: Iowa Department of Natural Resources (IDNR)


### Commenter : Brian Tormey Commenter Type: State Government

Comment Excerpt Text: Table 2 (page 26) [from Document No. EPA

- HQ

- RCRA

- 2009

- 0640

- 6315]

– The question posed states, “Is groundwater monitoring mandatory at CCR landfills?” Iowa is listed as one of twelve states that provide for a varianc e of monitoring requirements and is therefore characterized as “No.” This is not accurate. Iowa Code section 455B.304 mandates groundwater monitoring at sanitary disposal projects, and variances cannot be given to a state statute. Iowa Administrative

Code 567 Chapter 103.1(4)“d” goes on to further define groundwater monitoring requirements at

CCR landfills.

Response: The Agency acknowledges and appreciates the comment.252



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0239

- 19 

### Organization: Earthjustice, et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text:

ATTACHMENT 7

[See EPA

- HQ

- RCRA

- 2011

- 0392

- 0239

- A1, Attachment 7, for table “State Groundwater Monitoring Requirements: Coal Combustion Waste Landfills"]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0249

- 6 

### Organization: Arkansas Department of Environmental Quality (ADEQ)


### Commenter : Teresa Marks Commenter Type: State Government

Comment Excerpt Text: Regulation 22 establishes standards for groundwater monitoring and reporting modeled after the federal Subtitle D standards. Provision is made so that Class 3N landfills may consider site

specific waste characteristics to help refine the sampling parameter list and frequency used in the

site

- specific program.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0249

- 8 

### Organization: Arkansas Department of Environmental Quality (ADEQ)


### Commenter : Teresa Marks Commenter Type: State Government

Comment Excerpt Text: ADEQ believes the current regulations affecting CCR landfills in Arkansas are adequate to protect human health and the environment. Operational standards addressed in Regulation 22

include storm water and leachate management; operator training and licensing; waste spreading and compaction; equipment and facilities; maintenance and repairs; unauthorized waste exclusion and contingencies. Design aspects of Regulation 22 include site characterization and hydrogeological investigations; separation from groundwater; analysis of waste constituents; bottom liner and final cover specifications; leachate collection system specifications, storage and disposal; closure plans, cost estimates and financial assu rance; groundwater monitoring networks; and construction quality assurance (CQA) plans and certifications.

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 this253

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

- 2011

- 0392

- 0255

- 4 

### Organization: North Dakota Departmen t of Health


### Commenter : Scott Radig Commenter Type: State Government

Comment Excerpt Text: Groundwater Monitoring

ND Admin. Code § 33

- 20 states, in part:

33

- 20

- 13

- 02. Ground water quality monitoring.

1. An owner or operator of a resource recovery uni t, a land treatment unit, a surface impoundment, or a landfill, except an inert waste landfill, must incorporate a ground water monitoring system into the design of the facility. If the owner or operator demonstrates to the department that there is no pote ntial for migration of solid waste constituents to the uppermost aquifer during the life of the solid waste management unit and the postclosure period, the department may suspend this requirement. The demonstration must be based upon factors such

as the si te characterization, the solid waste characteristics and constituents, the potential capacity of the unit or facility, and the physical, chemical, and biological processes affecting contaminant fate and transport.

The no

- potential

- for

- migration alternati ve, which Earthjustice claims negates the groundwater monitoring requirement, is actually a stringent standard that is very difficult to demonstrate. It does not allow the state to arbitrarily or capriciously set aside the groundwater monitoring requiremen ts, and CCR facilities have not requested this alternative, nor have any been approved.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0255

- 7 

### Organization: North Dakota Department of Health


### Commenter : Scott Radig Commenter Type: State Government

Comment Excerpt Text: Postclosure Care And Monitoring

ND Admin. Code § 33

- 20 states, in part:

33

- 20

- 04.1

- 09. General disposal standards25 4

...... 5. Postclosure standards for solid waste management facilities regulated by this section.

a. The owner or operator of a landfill or a surface impoundment closed with solid waste in place shall meet the following during the postclosure period:

(1) Maintain the integrity and effectiveness of the final co ver, including making repairs to the cover to correct effects of settlement, subsidence, and other events, and preventing run

- on and runoff from eroding or otherwise damaging the final cover;

(2) Maintain and operate the leachate collection system, if ap plicable;

(3) Monitor the ground water and maintain the ground water monitoring system, if applicable;

and

b. The owner or operator of a municipal waste landfill, an industrial waste landfill, a special waste landfill, a surface impoundment closed with solid waste remaining in place, or a land treatment facility shall prepare and implement a written postclosure plan approved by the department as a part of the permitting process. The postclosure plan must address facility maintenance and monitoring activ ities for a postclosure period of thirty years.

(1) Postclosure includes appropriate ground water monitoring; surface water monitoring; gas monitoring; and maintenance of the facility, facility structures, and ground water monitoring

systems.

(2) The p ostclosure plan must provide the name, address, and telephone number of the person or office to contact during the postclosure period; and project time intervals at which postclosure activities are to be implemented, identify postclosure cost estimates, an d provide financial assurance mechanisms as required by chapter 33

- 20

- 14.

(3) The department may require an owner or operator to amend the postclosure plan, including an extension of the postclosure period, and implement the changes. If the permittee dem onstrates that the facility is stabilized, the department may authorize the owner or operator to discontinue postclosure activities.

There are no exclusions or variances for CCR facilities in the state postclosure care and monitoring requirements. Earthj ustice's assertion that the state does not require, or provides variances to CCR facilities to not perform 30

- year postclosure groundwater monitoring is false.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0256

- 4 

### Organization: Louisiana Department of Environmental Quality (LDEQ)


### Commenter : Sam Phillips Commenter Type: State Government255

Comment Excerpt Text: The following is a summary of Landfill I Surface Impoundment requirements under the Louisiana Solid Waste Program (with references to corresponding federal Subtitle D requirements). This summary addresses comments by Earthjustice.

1. Groundwater Monitoring during operation

a. The Earthjustice comments state that existing sites in Louisiana are grandfathered, and are not required to do groundwater monitoring. This is incorrect. To the contrary, groundwater monitoring in Louisiana is required for all landfills and surface impoundments, and a sufficient number of wells to represent gr oundwater quality at point of compliance (LAC 33:VII.805.A; 40 CFR 257.22).

b. The groundwater monitoring program at each facility must include sampling and analytical procedures to ensure representative results (LAC 33:VII.805.B; 40 CFR 257.23).

c. A Detection Monitoring Program is required for all facilities (LAC 33:VII.805.C; 40 CFR 257.24).

d. An Assessment Monitoring Program is required whenever a statistically significant increase over background concentrations is detected and confirmed for one or more monitoring parameters (LAC 33:VII.805.D; 40 CFR 257.25).

e. A Corrective Measures Assessment and Selection of Remedy is required for those facilities in an Assessment Monitoring Program (LAC 33:VII.805.E

- F; 40 CFR 257.26

- 27).

f. Corrective Acti on Implementation is required for those facilities in an Assessment Monitoring Program, following the Selection of Remedy (LAC 33:VII.805.G; 40 CFR 257.28).

2. Composite Liner

A composite liner is required for all landfills and surface impoundments bui lt after December 31, 1997 (LAC 33:VII.711.B.5, 713.B.3).

3. Leachate Collection System

A leachate collection system is required for all landfills built after December 31, 1997 (LAC 33:VII.711.B.4).

4. Daily Cover

Daily cover or alternative daily c over is required for all landfills (LAC 33:VII.711.B.2; 40 CFR

257.3

- 8).

5. Dust Controls256

The Earthjustice comments state that Louisiana does not require dust control. However, control of vectors, dust, litter, and odors required for all landfills and surface impoundments in Louisiana (LAC 33:VII.521.G.l).

6. Run

- off Controls

Surface

- runoff diversion is required for working areas of the landfill for all landfills (LAC 33:VII.711.A.3 and 5); Louisiana's requirement is more stringent than Subtitle D r equirements

for industrial solid waste landfills.

7. Separation from Water Table

No requirements in Louisiana regulations.

8. Financial Assurance

Financial assurance is required for all landfills and surface impoundments (LAC 33:VII.52l.K);

Louisia na's requirement is more stringent than Subtitle D requirements for industrial solid waste.

9. Composite Final Cover

Composite final cover is required for all landfills and surface impoundments closed with waste in place (LAC 33:VII.71l.E.3, 713.E.3); Louisiana's requirement is more stringent than Subtitle D requirements for industrial solid waste landfills and surface impoundments.

10. Groundwater Monitoring for 30 years post

- closure period

Required for all landfills and surface impoundments closed after October 9, 1993 (LAC 33:VII.71l.F.3, 713.F.2); Louisiana's requirement is more stringent than Subtitle D requirements

for industrial solid waste.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0259

- 8 

### Organization: Environmental Integrity Project (EIP)


### Commenter : Eric Schaeffer Commenter Type: Advocacy Group

Comment Excerpt Text: Based on our review of the NODA docket, only one state (Wisconsin) provided any actual groundwater monitoring data to EPA, in an undated attachment that shows significant contamination from both active and closed sites. The authors of the report note that “measurable quantities of boron were recorded in at least one downgradient monitoring w ell at all the sites reviewed.” [Footnote 5:“Wisconsin DNR Report on damages entitled Groundwater Impacts from Coal Combustion Ash Disposal Sites in Wisconsin (Phil, Date?) Zillmer & Fauble,WDNR.” See257

Appendix

— Section D of docket number EPA

- HQ

- RCR

- 2011

- 039 2

- 0084.] Seven of the twelve sites had mean boron concentration in the most impacted wells above the EPA Child Health Advisory of 3 ppm. Sulfate was also detected in downgradient wells at all sites, and in “the mean

sulfate value was above the Wisconsin en forcement standard of 250 mg/l at 10 of the 12 sites studied.” Tabulated results show that the most impacted wells at each site frequently had mean concentrations of arsenic and selenium above their respective MCLs, including mean arsenic

concentrations as high as 364 ppb and mean selenium concentrations as high as 78.8 ppb.

While we were able to obtain such information from most state agencies through a series of Freedom of Information Act requests, the exercise was time consuming and expensive, and

repre sents data that EPA ought to have collected in the first place. As we have already noted, there are important limitations, e.g., monitoring does not cover arsenic or other contaminants at some sites, but the sum total of this data points indicates that man y active coal ash sites continue to leak pollutants into groundwater and surface water at unacceptable levels.

Comments minimizing the impact of this data into several broad categories. Some agencies pointed to relatively infrequent violations of primary MCL’s, ignoring data showing much higher levels of boron, molybdenum, sulfates, or other contaminants that can make water from private wells unsafe to drink. We think well users are interested in whether they can drink their water without getting sick, and not in whether a contaminant is found in a public water supply system they do not use.

“Background” levels of contamination were blamed for some of the exceedances; EIP worked hard to try to identify these “upgradient” values from state data, and took th ese into account in our analysis. As we have pointed out, in some cases, the hydrological pressure from surface impoundments can reverse groundwater flows, and push pollutants into “upgradient” wells, especially those located too close to the disposal site

.

Other commenters suggest that EPA has exaggerated groundwater risks, because contaminants will be intercepted by rivers or streams before they reach drinking water wells. Congress prohibited open dumping in the Solid Waste Disposal Act of 1976 for the “ protection of the quality of ground water and surface waters from leachates . 42 U.S.C.A. 6907(a)(2)(B), [emphasis added]. The unpermitted discharge of pollutants like arsenic or selenium to surface

waters

– where they can settle into sediments and threaten aquatic life

– is also prohibited under

the Clean Water Act.

In some cases, groundwater monitoring shows that pollutant values fluctuate, rising and falling and sometimes rising again over extended periods of time. Our understanding is that these

fluctua ting measurements are not unusual, especially when sampling events are spaced widely apart, but comments from some states suggest that corrective action is not required unless successive sampling events show consistently high levels of pollution that excee d MCL’s. Our view is that recurring incidents of contamination, even if not sequential, indicate the need to address the pollution at its source.

We are aware that most data is limited to onsite wells. The federal open dumping prohibition prohibits contin ued disposal of wastes that cause groundwater contamination to exceed certain258

levels identified in Appendix I of 40 CFR Part 257.3

- 4. Compliance with this standard is supposed to be measured at the perimeter of the waste management unit, not some undetermi ned offsite location, based on the common sense theory that groundwater contamination should be identified and corrected before it has spread too far: “[T]he proposed criteria recognized that monitoring and control of leachate within the property boundary would generally be necessary in order to assure that the standard at the property boundary would be met.” [Footnote 6: 44 Fed. Reg. 53447 at 53438 (1976). EPA actually narrowed the compliance boundary in the final rule, measuring compliance at the edge of the solid waste unit (e.g., the surface impoundment) rather than the property boundary.] States were allowed to designate alternative boundaries within the property, but only after determining that would not threaten existing or future users of the aquifer

.

The state comments suggest that these open dumping criteria are frequently disregarded, and we could not determine any consistent approach to setting alternative compliance boundaries that are supposed to determine when corrective action is required.

R esponse: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0263

- 3 

### Organization: South Carolina Department of Health and Environmental Control


### Commenter : Daphne Neel Commenter Type: State Government

Comment Excerpt Text: Groundwater Monitoring and Post Closure Care

Table 4 of the [EJ] Comments lists South Carolina as not requiring quarterly groundwater monitoring. It is correct that the regulations require both Class 2 and Class 3 landfills to monitor ground water at least semi

- annually, however, groundwater monitoring frequencies can be changed based on site

- specific circumstances. Table 6 of the Comments indicates that South Carolina does not require three downgradient and one upgradient groundwater monitor i ng wells. The regulations "... require a sufficient number of wells, installed at appr opriate locations and depths ... " for both Class 2 and 3 landfills. While Class 2 landfills specifically require a minimum of three and one, more wells can be required for b oth Class 2 and 3 landfills based on

site

- specific conditions. All operating Class 3 landfills in South Carolina have more than four groundwater monitoring wells. Contrary to Table 23 wherein South Carolina is listed for not requiring 30

- year post

- closure groundwater monitoring, the solid waste regulations require

minimum of 30

- year post

- closure care for Class 3 landfills and 20

- year post

- closure care for Class 2 landfills, however, post

- closure can be extended based on site

- specific issues.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0265

- 11 

### Organization: Department of Environmental Quality, State of Wyoming


### Commenter : John Corra Commenter Type: State Government259

Comment Excerpt Text: Groundwater monitoring

In Wyoming CCR waste disposal facilities are permitted under our Industrial Landfill Rules. Industrial landfills that receive conditionally exempt small quantity generator (CESQG) waste are required to conduct monitoring that mirro rs Subtitle D monitoring requirements for municipal solid waste landfills (MSWLFs). While it is theoretically possible for an operator to demonstrate that monitoring is not necessary, no CCR disposal facility has done so. Groundwater monitoring is not mand atory at CCR landfills that do not receive CESQG waste, but these facilities must monitor if directed to do so by the Department. Groundwater monitoring has been required at all CCR landfills in Wyoming.

Earthjustice et al asserts that certain monitoring requirements should be mandatory, such as quarterly monitoring and a minimum of three (3) downgradient wells. Wyoming believes that groundwater monitoring requirements should be site specific considerations and we establish monitoring requirements appropr iate to each landfill site.

Post

- closure monitoring and maintenance

Wyoming's post

- closure monitoring and care requirements are described above. Wyoming believes these requirements are already similar to Subtitle D and that they are currently

sufficient

.

The Table below summarizes each Division's regulatory standards for each of the eleven (11) issues listed by EPA.

[Please see original attachment for the table containing a summary of each Division's regulatory

standards for each of the elev en (11) issues listed by EPA.]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0267

- 2 

### Organization: North Carolina Department of Environment and Natural Resources (NCDENR)


### Commenter : Dexter Matthews Commenter Type: State Government

Comment Excerpt Text: Comments on State of Failure: How States Fail to Protect Our Health and Drinking Water from Toxic Coal Ash, August 17, 2011

DWM Comments:

- Table 2

– State

- by

- State Failure to Impose Basic Safeguards at Coal Ash Dumps, page 8 Table displays a “NO” under “Require groundwater monitoring at all new and existing landfills” (Column 3). This is incorrect. DWM under rule 15A NCAC 13B. 0503(2)(d) requires a solid260

waste management facility to comply with the NC 15A NCAC 2L Standards. In addition, rule 15A NCAC 13B .0601 requires groundwater monitoring at all solid waste management facilities.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 02 69

- 2 

### Organization: Indiana Department of Environmental Management (IDEM)


### Commenter : Thomas Easterly Commenter Type: State Government

Comment Excerpt Text: Indiana has 12 permitted CCR landfills. Eleven CCR landfills perform ground water monitoring regardless of their site type. Out of the 12 CCR landfills only 3 sites are classified as a RWS type Ill and only 1 site is not required to perform ground water monitoring at this time.

Indiana's solid waste regulations' require semiannual ground water mo nitoring for all municipal solid waste landfills and RWS type I and II. Indiana has chosen the semiannual frequency of ground water monitoring as best suited for Indiana's hydrogeological and seasonal conditions.

A 30

- year post

- closure monitoring is requir ed for all permitted landfills in Indiana.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0270

- 2 

### Organization: Maryland Department of the Environment (MDE)


### Commenter : Edward Dexter Commenter Type: State Government

Comment Excerpt Text: In reviewing some of the information in the docket concerning the proposed regulations relating to coal combustion residuals (e.g., EPA

– HQ

– RCRA

– 2009

– 0640

– 6315), some descriptions of Maryland’s regulatory program for “coal combustion byproducts” (CCBs) as they are termed in Maryland’s statutes and regulations are not entirely accurate. We believe this is because 1) the Department has continued to improve our regulation of CCBs since the first major regulatory change i n 2008, and 2) the information they provide is largely a generalized discussion of regulatory language absent the application of Departmental policies that may restrict how the regulation is actually applied.

For example, in one comment, EPA was provided the information that Maryland was one of 5 states that leaves the question of whether to require monitoring to the discretion of the Department, and is a state that doesn’t specifically require one up and three downgradient monitoring wells. Although it i s possible to read our regulations in this way, in fact the Department has and does require monitoring of all permitted CCB industrial waste landfills, and also sites not permitted as landfills but which are regulated under NPDES permits or that are “grand fathered” under the later CCB regulations. Monitoring plans are required for these sites,261

which are not developed by a regulatory prescription but rather based on site

- specific geological

information.

It is a matter of fact that the active CCB disposal fa cilities in Maryland all have groundwater monitoring systems that include considerably more than 4 wells, and where warranted include multiple

- aquifer monitoring systems. Therefore, while the analysis of our regulatory requirements may or may not have been accurate, the implications that our monitoring requirements are substandard were not an accurate portrayal of the current state of the Maryland regulatory system.

The Department commenced a major revision of our regulations addressing CCBs/CCRs in 2007 in response to the determination that a significant groundwater release had occurred from the BBSS mine reclamation site in Anne Arundel County, Maryland, which is detailed in damage case studies and comments in the docket. The first major set of regulatio ns were sweeping changes to the requirements for these sites, and included changes to the solid waste, surface mine, and coal mine reclamation regulations to insure that CCBs/CCRs were handled in a protective manner. These regulations require liners and le achate collection systems for

CCB/CCR landfills and non

- coal mine reclamation sites of all sizes, and also include groundwater monitoring, dust control, runoff and sediment/erosion controls, closure capping, stabilization, and postclosure monitoring. Altho ugh not identical to the proposed RCRA D regulatory standard, these requirements are substantively equivalent and provide equal protection for the citizens of Maryland.

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

- 2011

- 0392

- 0271

- 6 

### Organization: Association of State and Territorial Solid Waste Management Officials (ASTSWMO)


### Commenter : Ed Th amke Commenter Type: State Government

Comment Excerpt Text: ASTSWMO Survey Revisited

Earthjustice cites select data from a survey that ASTSWMO performed and submitted to EPA prior to the June 21, 2010 proposal. Although it is in the Docket for the propo sed rule, the survey data was not intended to be taken as official comments to the proposal. As Earthjustice notes, “it is not clear from the ASTSWMO survey how many states responded, so these percentages may” [Footnote 35: Earthjustice Comments, page 19] provide an accurate picture of State regulatory requirements.

ASTSWMO has since reexamined the data and the results are presented below. It should be262

noted that ASTSWMO and the States do not limit data presentation to those aspects of the programs that “ look good.” While State programs are far better than portrayed in the Earthjustice Comments, most States would agree that improvements can be made.

Based on information ASTSWMO received in response to a survey of States, following are answers to question s relevant to the adequacy of State programs:

How many States currently generate coal combustion residuals?

Forty

- five States generate coal combustion residuals (CCR). Not all States in which CCR is generated have disposal of CCR. CCR is disposed in on ly 42 of those States.

ASTSWMO does not have the information for 3 of the 42 States in which CCR is disposed. Additionally, ASTSWMO may not have complete information for all 39 of the remaining States. For each question presented, the number of States th at ASTSWMO has information for is provided with the information that is available for those States.

How many States require permits for disposal?

Thirty

- six out of 42 States require permits for disposal of CCR in landfills. Twenty

- nine out of

32 States require permits for the management of CCR in surface impoundments. In some States, the permits may not be specifically for disposal of CCR in surface impoundments. In those cases, the permit may be for effluent discharge.

In the States that require perm its for disposal of coal combustion residuals, what are the liner requirements?

ASTSWMO has information about landfill liner requirements for 38 States. In 27 of the 38 States, a bottom liner is required for landfills. Eleven of the 38 States do not requ ire a bottom liner. Seven of those 11 States make a determination about requiring a bottom liner on a case

- by

case basis. Liner requirements in 32 States are as follows: dual/multiple liner in 9 States; composite liner in 14 States; clay liner in 7; and 2 States require another type of liner. Variances are allowed in 23 States and exemptions in 7 States. Liner requirements apply to both existing and new lateral expansions of landfills in 13 States and only new expansions in 23 States.

ASTSWMO has informat ion about surface impoundment liner requirements for 26 States. In 17 of the 26 States, a bottom liner is required for surface impoundments. Eleven of the 26 States do not require a bottom liner. Five of those States make a determination about requiring a bottom

liner on a case

- by

- case basis. Liner requirements in 19 States are as follows: dual/multiple liner in 9 States; composite liner in 5 States; clay liner in 5 States. Variances are allowed in 7 States and exemptions in 3 States. Liner requirements app ly to both existing and new lateral expansions of surface impoundments in 12 States and only new expansions in 9 States.

In each of the States that require permits for disposal of coal combustion residuals, what are the groundwater monitoring requirement s?263

ASTSWMO has information about landfill groundwater monitoring requirements for 39 States. In 34 of the 39 States, groundwater monitoring is required for landfills. Five of the 39 States do not require groundwater monitoring. Groundwater monitoring req uirements apply to both existing and new lateral expansions of landfills in 32 States and only new expansions in 4 States.

ASTSWMO has information about surface impoundment groundwater monitoring requirements for 27 States. In 18 of the 27 States, ground water monitoring is required for surface impoundments. Nine of the 27 States do not require groundwater monitoring. Six of those 9 States make a determination about requiring groundwater monitoring on a case

- by

- case basis. Groundwater monitoring requiremen ts apply to both existing and new lateral expansions of surface impoundments in 20 States and only new expansions in 3 States.

In each of the States that require permits for disposal of coal combustion residuals, what are the requirements or regulations regarding structural stability?

ASTSWMO has information about landfill structural stability monitoring requirements for 36 States. In 30 of the 36 States, structural stability monitoring is required for landfills. Six of the 36 States do not require stru ctural stability monitoring. Structural stability monitoring requirements apply to both existing and new lateral expansions of landfills in 26 States and only new expansions in 7 States.

ASTSWMO has information about surface impoundment structural stabil ity monitoring requirements for 25 States. In 16 of the 25 States, structural stability monitoring is required for surface impoundments. Seven of the 25 States do not require structural stability monitoring. Two

of the 7 States make a determination about r equiring structural stability monitoring on a case

- by

case basis. Structural stability monitoring requirements apply to both existing and new lateral expansions of surface impoundments in 13 States and only new expansions in 3 States.

How is CCR disposal regulated in the States?

In many States, the authority to regulate surface impoundments is vested in other State agencies pursuant to statutes other than solid waste statutes. While it may be other State agencies that have enforcement authority for surf ace impoundments, 43 out of 44 States indicated that they coordinate with the enforcing entities to require that steps are taken to protect human health and

the environment.

Despite the concerns expressed in the proposed rule, the State enforcing entitie s in 42 out of 42 States have the authority to require remediation. The majority of State agencies noted State authority for surface impoundments include repair and maintenance during operation (43 out of 44 States) and closure (41 out of 43 States), as we ll as:

- impoundment design and engineering

- leachate collection

- gas collection

- groundwater and leachate monitoring

- financial assurance264

- post

- closure care and maintenance

- removal

- replacement of water supply

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 9 

### Organization: Association of State and Territorial Solid Waste Management Officials (ASTSWMO)


### Commenter : Ed Thamke Commenter Type: State Government

Comment Excerpt Text: Earthjustice’s Characterization of State Programs is Plagued with Problems

Earthjustice presents the results of its “Earthjustice 2010 37

- State Review” of groundwater and liner requirements for landfills and surface impoundments in Tables 25, 26 and 27 (pages 39

- 45). The 37 States are those that were evaluated in 2005 and reporte d in the 2010 RIA. Earthjustice chose those States for purposes of comparison with EPA’s report. Table 25 [from Earthjustice Comments “Earthjustice 2010 37

- State Review”] lists, side

- by

- side, the results reported in the 2010 RIA and the Earthjustice 2010 evaluations of State groundwater monitoring requirements for landfills. The results are so different that it appears that they found the exact opposite results. The 2010 RIA reports that 31 States do require groundwater monitoring while Earthjustice report s that 30 States do not require groundwater monitoring. Upon closer review, it is apparent that the Table is comparing two different types of data. The 2010 RIA reports States that have a groundwater monitoring requirement. Earthjustice only

counts those S tates that require groundwater monitoring without exception. Fortunately, Earthjustice identifies the States that allow for a variance or discretion. If those States are included in Earthjustice’s count, the number of States that require groundwater monito ring increases significantly: 25 States require groundwater monitoring; 5 States exempt on

- site disposal; and 2 States exempt monofills. According to the reported results, 5 States do not require groundwater monitoring. These results reflect more closely t he results of the 2010 RIA, although not all are correct.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0273

- 1 

### Organization: Department of Natural Resources, State of Missouri


### Commenter : Alan Re inkemeyer Commenter Type: State Government

Comment Excerpt Text: Missouri has a number of coal burning power plants. Most of these facilities do manage their fly ash short term in surface impoundments prior to beneficial reuse or final disposal in a UWLF. However, these surface impoundments are bowl shaped depressions in the ground (in contrast to the raised structures used at the Tennessee Valley Authority facility). The outfalls from these265

ponds and from landfills are routinely monitored under the Missou ri State Operating Permit process (i.e., the state equivalent to the National Pollution Discharge Elimination System permitting process).

Missouri has comprehensive regulations in place for the design and permitting of utility waste landfills (UWLFs) used to manage CCRs as a solid waste. Missouri promulgated regulations in 1997 specifically for UWLFs. Utility waste landfills permitted pursuant to these regulations are subject to numerous requirements designed to protect public health and the environment,

i ncluding: 1) a geologic and hydrologic evaluation to determine if the site is suitable for construction of a landfill; 2) a liner with quality assurance/quality control procedures to ensure proper construction; and 3) a leachate collection system and a gro undwater monitoring system. The Missouri Department of Natural Resources inspects all permitted solid waste disposal areas, including UWLFs, at least one time per year to ensure compliance with applicable regulations.

Response: The Agency acknowledges an d appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0273

- 4 

### Organization: Department of Natural Resources, State of Missouri


### Commenter : Alan Reinkemeyer Commenter Type: State Government

Comment Excerpt Text: Missouri is providing specific comments to the “COMMENTS OF EARTH JUSTICE,
ENVIRONMENTAL INTEGRITY PROJECT, SIERRA CLUB, NATURAL RESOURCES DEFENSE COUNCIL, SOUTHERN ALLIANCE FOR CLEAN ENERGY, SOUTHERN ENVIRONMENTAL LAW CENTER, PHYSICIANS FOR SOCIAL RESPONSIBILITY” report prepared by Env ironmental Protection Agency related to Missouri’s permitting requirements and environmental controls.

General Comments: Many of the coal combustion residual (CCR) ponds and landfills in Missouri predate the state's environmental laws. Most of the ash pon ds were built in the 1960s through 1970s and are unlined. During the development of water pollution regulations and solid waste regulations, the following conditions were considered: the low leachability potential of CCRs, the fact the majority of ash pond s are located near the Missouri or Mississippi Rivers with groundwater flows downgradient towards the rivers and most ponds were constructed of clay material. As air pollution regulations have continued to strengthen, the waste stream into the ash ponds an d landfills has continued to change.

In light of this new information and the expected additional changes in air pollution regulations and water quality standards, the Missouri Department of Natural Resources (Department) has

decided to increase its effor ts to collect groundwater data associated with surface impoundments. In a renewed water permit issued in April 2011 to AECI New Madrid, the Department included groundwater monitoring requirements. As additional permits for coal

- fired power plants with

surf ace impoundments for CCRs are renewed, all will be evaluated for the need for similar requirements and further characterization of the surface impoundment discharges.266

In 1997, the Department's Solid Waste Management Program began requiring utility waste landfills for land disposal of CCRs. The requirements for utility waste landfills are very similar to those for municipal solid waste landfills and include requirements for geologic evaluation, liners, monitoring and proper closure. In addition, groundwate r monitoring is required before construction, during operations, and in post

- closure. For the landfills created prior to the Solid Waste laws, such as the now closed St. Joseph Light and Power Fly Ash Landfill, groundwater monitoring was required during op erations and is now being required through post

- closure of the landfill. As the “old” landfills expand their capacity, they are evaluated to ensure compliance with existing regulations.

Specific Comments:

On page 26, Table 2

- Is Groundwater Monitoring M andatory at CCR Landfills? Missouri is listed as requiring groundwater monitoring at CCR landfills with a caveat that we allow grandfathering of existing sites. Comment: This report does not adequately state that as the “grandfathered” sites apply for expa nsions they are required to comply with the current regulations regarding groundwater monitoring.

On page 28, Table 6

- Are a Minimum of Three Downgradient Wells and One Upgradient Well Required at CCR Landfills? Missouri is listed as requiring a minimum of three Downgradient Wells and One Upgradient Well with a caveat that we allow grandfathering of existing sites. Comment: This report does not adequately state that as the “grandfathered” sites apply for expansions they are required to comply with the cur rent regulations regarding the number of groundwater monitoring wells.

On page 29, Table 8

- Type of Liner Required for New CCR Landfills. Missouri is listed as only requiring a clay liner. Comment: This is incorrect. 10 CSR 80

- 11.010 allows for either a composite liner or a clay liner with a lower hydraulic conductivity.

On page 34, Table 19

- Are Financial Assurances Mandatory for CCR Landfills? Missouri is listed as grandfathering existing sites from Financial Assurance Requirements. Comment: This is

i ncorrect. Missouri requires financial assurance instruments for all active utility waste landfills.

On page 39, Table 25

- Is Groundwater Monitoring Mandatory at CCR Landfills? Missouri is listed as grandfathering existing sites from groundwater monitorin g requirements. Comment: Most sites have groundwater monitoring; any older sites that do not have groundwater monitoring or that have monitoring that is less comprehensive are required to comply with current regulations upon submittal of an expansion reque st.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0273

- 5 

### Organization: Department of Natural Resources, State of Missouri


### Commenter : Alan Reinkemeyer Commenter Type: State Government267

Comment Excerpt Text: Missouri is providing specific comments to the “State of Failure: How States Fail to Protect our Health and Drinking Water from Toxic Coal Ash” report prepared by Earth Justice related to Missouri’s permitting requirements and environmental c ontrols.

The Earth Justice survey did not fully characterize Missouri’s program related to coal

combustion residuals.

Regarding Table 1, page 24: Table 1

- Failure of State Programs to Impose Basic Safeguards at Coal Ash Dumps, the table provides statist ics in the form of (x number of states out of the 37 reviewed) either having or not having a specified control. It is not possible to identify how the author placed Missouri in these evaluations and ratings.

Regarding the state

- specific write up posted be low on Missouri, the comments are largely focused on Dam Safety and ash ponds. The Solid Waste Management Law and Regulations do not recognize ash ponds and require that any new disposal facility meet the landfill design

criteria in 10 CSR 80

- 11.010. The s tatement regarding not requiring groundwater monitoring at utility waste landfills is incorrect as well, as we do not allow "dumping directly into the water table". Regarding requiring bonds to ensure cleanup of coal ash landfills, this statement is also

i ncorrect. We require closure financial assurance instruments (FAIs) and also have the authority to require the establishment of a corrective action FAI, if a problem is detected.

On Page 6, the report states “In 2010, the EPA published a risk assessment t hat found extremely high risks to human health and the environment from the disposal of coal ash in waste ponds and landfills. The chart below compares the EPA’s findings on the cancer risk from arsenic in coal ash disposed in some unlined waste ponds to s everal other cancer risks, along with the highest level of cancer risk that the EPA finds acceptable under current regulatory goals. The risk from coal ash is 2,000 times greater than that regulatory goal.”

Without appropriate context, this information is potentially misleading. The statistic cited of the risk from coal ash being 2,000 times greater than the EPA’s regulatory goal involves only exposure to arsenic via the groundwater

- to

- drinking water pathway from coal combustion waste

when it is co

- dispose d along with coal refuse in an unlined surface impoundment. Other disposal scenarios, including disposal of coal ash only and disposal in lined surface impoundments and landfills are within the EPA standard; so it is not accurate to say that “EPA published a risk assessment that found extremely high risks to human health and the environment” without putting the statement into the appropriate context. In EPA’s risk assessment, they note that landfills are safer than impoundments, and lined landfills present essentially no risk at all, as EPA points out in the relevant section of the risk assessment:

4.1.1.4 The Effect of Liners

"The analysis demonstrates that the presence of liners, especially composite liners, reduce leaching and risks from CCW landfills a nd surface impoundments. Note that 90th percentile risks from composite liners are zero for most constituents for landfills, which means that in 90 percent of the cases, the contaminant did not reach the receptor well in the 10,000 year limit for268

this anal ysis. Composite liners also reduced risks for surface impoundments for several constituents at the 90th percentile by 4 to 10 orders of magnitude and generated risk results well below the risk criteria for this analysis."

On page 15 and 16, the report sta tes:

"6. Missouri

Coal ash Generation: 2,679,742 tons annually

Rank for Coal Ash Generation in US: 16th

Number of Ash Ponds: 32 Number of Documented Sites Contaminated by Coal Ash: 4

In Missouri, only the largest, most dangerous of the state’s 32 coal a sh ponds are regulated for dam safety. Amazingly, Missouri allows ponds impounding more than 170 million gallons of coal ash to escape safety regulations. This amount is roughly equivalent to 35,000 bathtubs full of coal ash or an area the size of Washingt on’s National Mall covered in sludge about two feet deep. Furthermore, Missouri has not assigned a hazard rating to a single coal ash impoundment in the state. The EPA has inspected only two of Missouri’s 32 dams and rated those dams as high hazard and sig nificant hazard. Undoubtedly, many of Missouri’s other ponds are also potentially dangerous because 14 ponds are over 25 feet high or impound more than 500 acre/feet. Yet state regulators have inspected only one dam in the past five years, despite the fact that about half the dams were not constructed by professional engineers and fewer than half are currently monitored by one.

Other key safety regulations to protect the public are also missing in Missouri. State regulations do not require regular inspecti ons by dam safety officials. Missouri regulations also do not require groundwater monitoring or composite liners at all ponds and landfills, nor do the regulations prohibit dumping directly into the water table or require bonds to ensure cleanup at

coal as h landfills.

These deficiencies are threatening Missouri’s environment. The Missouri Department of Natural Resources (DNR) has known since 1992 that a 154

- acre, unlined ash pond at Ameren’s Labadie plant

– the largest coal plant in the state and the 14th largest coal plant in the nation

– has been leaking some 50,000 gallons per day. DNR has not required groundwater monitoring or cleanup, despite the threat to the local population that relies on groundwater for drinking water and agricultural use. DNR has also allowed the plant to continue operating under a 1994 NPDES permit, which technically expired in 1999, without issuing an updated renewal permit to require groundwater monitoring and cleanup. Missouri citizens deserve better."

These errors are perpetu ated in Table 2: State

- by

- State Failure to Impose Basic Safeguards at Coal Ash Dumps

Require groundwater monitoring at all new and existing landfills The report states no. Comment: This is incorrect. 10 CSR 80

- 11.010(11) requires all utility waste

landfil ls to have a groundwater monitoring program.269

Require composite liners for all new landfills The report states no. Comment: Missouri has two options available for liners, one is a composite

liner and the other is 2 feet of 1 x 10

- 7 cm/sec clay. The clay on ly liner requires lower permeability clay than does the composite liner.

Prohibit coal ash landfills from being constructed in the water table Report states no. Comment: This statement is somewhat misleading. 10 CSR 80

- 11.010(4)(B)6 requires an evaluation and demonstration to the Department's satisfaction that a liner will not be adversely impacted if it is in contact with groundwater (utility waste landfill regulations prohibit fly ash from coming in contact with groundwater). As it is difficult to demons trate a liner will not be impacted if it comes in contact with groundwater, we use our regulatory review and discretion to require a minimum of one foot of separation distance between the seasonal high

water table and the bottom

- most elevation of the liner

.

Needed dam safety inspections at these facilities in Missouri are not being conducted.

Comment:

The Missouri statute, RSMo Chapter 236.400 through 236.500 provides the definition of dam size as being thirty

- five (35) feet or more in height from the nat ural watercourse. Sections 236.400 to 236.500 does not apply to any dam which is not or will not be in excess of thirty

- five feet in height or to any dam or reservoir licensed and operated under the Federal Power Act.

Missouri has one such structure that is subject to these dam safety regulatory requirements: the Ameren Rush Island pond. The department has inspected that structure and Ameren has performed the modifications required to bring it into compliance with our regulations. The department issued an operating permit for that dam on December 23, 2010, for a period of five years. It is classified as a low hazard dam.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0277

- 5 

### Organization: Arizona Department of Environmental Quality (ADEQ)


### Commenter : Henry Darwin Commenter Type: State Government

Comment Excerpt Text:

Table No.: 2 Comment : Groundwater monitoring is not required at CCR landfills in Arizona. Arizona gives discretion to regulators re garding groundwater monitoring. Response : Arizona does not have coal combustion residuals (CCR) specific statutes and rules. However, all discharging facilities, as defined in Arizona statute, that include CCR landfills, such as electric power generating stations, must obtain an Aquifer Protection Permit (APP). These permits require compliance with Arizona's groundwater quality standards at a point of compliance, which is located in the uppermost aquifer, downgradient from the facility. The state

does hav e discretion with regard to the extent of groundwater monitoring.270

Statute/Rule Citation: A.R.S. §49

- 241; A.R.S. §49

- 224; A.R.S. §49

- 243; A.R.S. §49

- 244;

A.A.C. R18

- 9

- A202; A.A.C. R18

- 9

- A205; A.A.C. R18

- 9

- A206

Table No.: 3

Comment : Groundwater monitor ing is not required at CCR surface impoundments in Arizona. Response : See comment to Table 2. Statute/Rule Citation: See citations for Table 2 response.

Table No.: 4 Comment : Arizona has no groundwater monitoring requirements whatsoever at CCR landf ills. Response : See comment to Table 2. Statute/Rule Citation: See citations for Table 2 response.

Table No.: 5 Comment: Arizona has no groundwater monitoring requirements at CCR surface impoundments. Response: See comment to Table 2.

Statute/Rule Citation: See citations for Table 2 response.

Table No.: 6 Comment : Arizona does not require a minimum of three downgradient wells and one upgradient

well at CCR landfills. Response : Through Arizona's APP program, there is flexibility to monitor grou ndwater on a facility

- specific basis. All aquifers in Arizona are considered to be drinking water aquifers and thus are protected for that use. Statute/Rule Citation: A.R.S. §49

- 241; A.R.S. §49

- 224; A.R.S. §49

- 243; A.R.S. §49

- 244;

A.A.C. R18

- 9

- A202; A.A.C . R18

- 9

- A205; A.A.C. R18

- 9

- A206

Table No.: 7 Comment : Arizona does not require a minimum of three downgradient wells and one upgradient

well at CCR surface Response : See comment to Table 6. Statute/Rule Citation: See citations for Table 6 response.

Table No.: 23

Comment : Arizona has no 30

- year post

- closure monitoring requirement for CCR landfills. Response : Arizona does not have CCR

- specific monitoring requirements in statute or rule. However, through the APP issued to the facility, the facilit y owner must demonstrate compliance with regulatory groundwater protection and other requirements. The length of post

- closure monitoring is adaptable and dependent on site

- specific circumstances. Statute/Rule Citation: A.R.S. §49

- 252; A.R.S. §49

- 244; A.A .C. R18

- 9

- A209

Table No.: 24

Comment : Arizona has no 30

- year post

- closure monitoring requirement for CCR surface impoundments. Response : See comment to Table 23. Statute/Rule Citation: See citations for Table 23 response.271

Response: The Agency ackn owledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0284

- 3 

### Organization: Alabama Department of Environmental Management (ADEM)


### Commenter : Wm. Gerald Hardy Commenter Type: State Government

Comment Excerpt Text:

As for the newly

- passed state law, not only did Alabama elect to regulate coal ash as a solid waste effective immediately, it specifically authorized the future adoption and implementation of a federal regulatory program for disposal of CCR. Until such time as said f ederal program is adopted, the disposal of CCR would fall under Alabama's existing solid waste requirements. Under these regulations, coal combustion by

- products are classified as an industrial solid waste and are subject to a hazardous waste determination . If determined to be non

- hazardous, the waste must be disposed of in accordance with ADEM's Solid Waste Program requirements for industrial waste. Landfills permitted to accept this type waste must be constructed with liner and leachate collection systems and must also conduct periodic groundwater monitoring.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0285

- 2 

### Organization: Florida Department of Environmental Protection (DEP)


### Commenter : Jeff Littlejohn Commenter Type: State Government

Comment Excerpt Text: While Florida does not have a separate solid waste rule at this time to specifically address the management of CCR, most of Florida's coal

- fired power plants are already permitted under the Florida Power Plant Siting Act (PPSA) and the requirements of Florida's industrial wastewater and National Pollutant Discharge Elimination System (NPDES) permit program. One disposal facility is permitted under DEP's solid waste program. DEP strongly beli eves that the current regulatory structure in Florida already provides for the protection of human health and the environment in the management of CCR. Here are two examples:

First, facilities permitted under Florida's Power Plant Siting Act are required to meet the substantive requirements of all underlying programs, including all solid waste regulations. Facilities permitted under the industrial wastewater program are required to include solid waste conditions in their permits. As a result, all of Florid a's CCR management facilities are required to have groundwater monitoring and most of the newer disposal units have been constructed with bottom liner systems and leachate control s. When these facilities are closed, the owners are required to install appro priate final covers over the disposal areas.

Second, DEP has also begun including additional requirements at the time of renewal of a facility's industrial wastewater NPDES permit. These additional requirements include:

- Impoundment Operation and Mainten ance Documentation272

- Annual Impoundment Integrity Inspections

- Reporting and Recordkeeping Requirements for Impoundments

In fact, all documents relating to design, construction, operation, and maintenance must be kept on site in accordance with permit con ditions and made available to DEP inspectors upon request. These include plans, geotechnical and structural integrity studies, copies of permits, associated certifications by Florida

- registered professional engineers, and other regulatory approvals.

Response: The Agency acknowledges and a ppreciates 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 impound ments. 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: TRANS

- DAL

- 0117

- 1 

### Organization: Bullock, Bennett & Associates


### Commenter : Craig Bennett Commenter Type: Other Company

Comment Excerpt Text: Despite the misinformation commonly promulgated by many supporters of CCR regulation, the current program in Texas does provide for such common

- sense safeguards as lan dfill liners, groundwater monitoring, and cleanup standards. CCR disposal facilities in Texas are strictly constructed in accordance with TCEQ Industrial and Hazardous Waste Technical Guidance Number 3. Every design and construction of a CCR

landfill in T exas that I've been involved with over the course of my career has met or exceeded the technical requirements for liners listed in Technical Guidance Number 3. Groundwater monitoring is already adequately addressed by TCEQ Guidance Document Number
6, as w ell as many EPA RCRA guidance documents. I personally manage groundwater monitoring programs at six CCR landfills in Texas. Again, groundwater at these facilities is routinely monitored and evaluated, and to suggest otherwise is wrong.

Non

- hazardous CCR l andfills are remediated and closed in Texas under the TCEQ's Texas Risk Reduction Program or the Risk Reduction Standards. These programs explicitly require a complete evaluation of soil and groundwater data to ensure the facilities are closed so as to

rem ain protective of human health and the environment. In addition, after closure, ongoing groundwater monitoring, site inspection, and maintenance is required to be documented and submitted for TCEQ review. In 18 years of environmental consulting on CCR pro jects in Texas, I have never seen any waste classification data to remotely suggest that CCRs should be managed as a hazardous waste. To regulate CCRs as hazardous is wasteful and potentially detrimental to ongoing recycling efforts.

If CCRs are not chara cteristically hazardous, and the primary impetus for these new proposed rules is the December 2008 Tennessee Valley Authority dike failure, then shouldn't the proposed rules be primarily focused on inspection and maintenance of CCR facility dikes? By the w ay, we also do that, too. Every CCR landfill we're associated with is inspected twice per year by a licensed professional engineer and maintained accordingly. Again, thank you for the opportunity to speak here today.273

Response: The Agency acknowledges and appreciates the comment.

Section 7.1.2.2

- GW monitoring requirements/standards: EPA seeks comment on whether GW monitoring is required by states for CCR SIs (35133)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06203

- 10 

### Organ ization 1 

### : Arizona Public Service Company (APS)


### Commenter 1 : Scott Davis Commenter Type: Electric Utility Company



### Comment Excerpt Text: While APS supports the Subtitle D Prime option, a major shortcoming of this approach, as well

as with the other Subtitle D alternatives, is the lack of any mechanism for qualified state programs to step in and directly administer the Subtitle D CCR regulations, where the state programs meet or exceed the federal controls. Such an approach makes no practical sense, and it

woul d result in parallel and redundant regulatory programs for the same materials. Many states have regulatory programs in place that meet or exceed the Subtitle D standards in EPA's proposal

and for this reason APS believes the D

- Prime option should allow qua lified state programs to administer the federal program.

For example, the Arizona Department of Environmental Quality ("ADEQ") administers the Aquifer Protection Permit program ("APP Program"). This is a comprehensive program that protects the state's gro undwater resources by a combination of discharge reduction through use of Best Available Demonstrated Control Technology ("BADCT") and compliance with Aquifer Water Quality Standards ("AWQS") at the applicable Point of Compliance ("POC").

A permitee is re quired to "...ensure the greatest degree of discharge reduction achievable through application of the best available demonstrated control technology, processes, operating methods or other alternatives, including, where practicable, a technology permitting no discharge of pollutants." Arizona Revised Statutes § 49243. B.1. Pollutants discharged from the permitted facility may not exceed an AWQS at the applicable POC. The POC is located down gradient of the site at the edge of the Pollution Management Area (" PMA"). There are both numeric and narrative standards that apply and all aquifers are protected for drinking water use and the AWQSs are drinking water standards. In addition, if the ambient water quality of the aquifer exceeds an AWQS, no pollutant discha rged may further degrade the water quality at the applicable POC.

The program is broad in scope and detailed in its requirements. All facilities that discharge are required to obtain an Aquifer Protection Permit (APP). The definition of discharge is "...t he addition of a pollutant from a facility either directly to an aquifer or to the land surface or the vadose zone in such a manner that there is a reasonable probability that the pollutant will reach an aquifer." Arizona Revised Statutes § 49

- 201.12. In a ddition to this general requirement, many facilities are categorically defined as discharging facilities. These include surface impoundments274

and solid waste landfills. Arizona Revised Statutes § 49

- 241 .B 1. An aquifer is defined as "a geologic unit that c ontains sufficient saturated permeable material to yield usable quantities of water to a well or spring." Arizona Revised Statutes § 49

- 201.2. The APP regulations further define the term "usable quantities" to mean "...five gallons of water per day." Arizo na Administrative Code R18

- 11

- 501.4.

The major components/requirements of an APP are listed below:

• BADCT • Compliance with AWQSs at the POC • Technical Capability • Financial Capability • Zoning

The aquifer protection permit program is designed to prot ect groundwater quality using a two tiered approach. The first level of protection is discharge reduction through the use of BADCT. The goal of the BADCT requirement is to prevent to the greatest extent possible the discharge of pollutants to the aquifer. In fact as noted above, the BADCT design must, where practicable, include alternative technologies permitting no discharge of pollutants. Permits include inspection and monitoring requirements to insure that the facility BADCT performs as designed.

The se cond level of defense is the requirement to meet AWQSs at the applicable POC. Arizona Revised Statutes § 49

- 243. The POC is located in the shallow most aquifer at the downgradient edge of the PMA. For example, the PMA for a surface impoundment is the outer edge of the impoundment. The POC must also be located to ensure protection of all current and reasonably foreseeable future uses of the aquifer. Arizona Revised Statutes § 49

- 244.

The permittee must also show that they have the technical and financial ca pability to construct, operate and eventually close the facility. Arizona Administrative Code R18

- 9

- A203. Design plans and most required technical reports require submittal by a registered engineer or geologist. The permittee must also submit financial inf ormation on the costs to construct and operate, and the cost associated with post closure and closure of the facility. The permit would not be issued without presenting an approved method of financial assurance. This showing can take the form of a surety b ond, certificate of deposit, trust fund, letter of credit, insurance policy, cash deposit, or financial guarantees. ADEQ can withdraw approval to operate if there is evidence that the permittee would lose the capability to meet the requirements for financi al assurance.

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

- 2009

- 0640

- 06300

- 91 

### Organization : Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company275



### Commenter : Chris M. Hobson Commenter Type: Electric Utility Company

Comment Excerpt Text: EPD Is Prepared to Implement Detection, Assessment, and Closure Standards and Requirements.

EPD administers programs under current Georgia law and has expertise in detection, assessment, and closure of disposal sites. Regarding groundwater monitoring, ma ny of Georgia Power’s plants have had, or currently have, some level of groundwater monitoring. Some of this monitoring data was required by the State of Georgia’s Hazardous Sites Response Act (“HSRA”) program, which became effective in Georgia in 1992. Pu rsuant to HSRA, EPD has the authority to identify, assess, and remediate properties that potentially pose a risk to the environment. Since

the mid

- 1990s, several Georgia Power plant sites have undergone HSRA environmental investigations that included grou ndwater testing of various metal constituents in the vicinity of ash ponds. Those HSRA investigations of Georgia Power facilities, including groundwater monitoring near ash ponds, resulted in findings of compliance with the appropriate HSRA Risk

Reduction Standards. Further, the solid waste landfill permits for Georgia Power’s eight active solid waste landfills (including some permits in the application process) have groundwater monitoring requirements. Three of Georgia Power’s four closed CCB solid waste l andfills also have groundwater monitoring.

EPA expressed concern that “[m]any state regulatory programs for the management of CCRs, including requirements for liners and groundwater monitoring are lacking.” [Footnote 374: 75 Fed. Reg. 35128, 35150 (June 21, 2010). ] However, EPD’s authority and experience under existing regulatory programs provides assurances that the state will continue to assume responsibility for the oversight of groundwater monitoring and related functions at CCB

facilities.

Georgia Power also has experience with closing ash ponds under Georgia’s solid waste regulations. Beginning in 2002, Georgia Power initiated closure of former ash ponds at Plant Arkwright as solid waste landfills. The time to evaluate the site, determine appropri ate closure paths, complete regulatory permitting, and finish construction for these units ranged from five to eight years. Georgia Power’s experience supports the concerns expressed above at Parts II.B.1, III.B.2, II.B.7, and III.D with respect to the tim etables for EPA’s proposed closure requirements. Utilities seeking potential multiple ash pond closures concurrently would only exacerbate the problem and extend the time frame.

Response: The Agency acknowledges and appreciates the comment. The commente r 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 of the preamble for a discu ssion of the technical requirements, including closure and 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

- 2009

- 0640

- 06838

- 22 

### Organizat ion: Minnesota Pollution Control Agency (MPCA)276



### Commenter : Lisa Mojsiej on behalf of Tim Scherkenbach Commenter Type: State Government

Comment Excerpt Text: The MPCA requires surface impoundments for ash disposal to be constructed with a composite

liner similar to the proposed Subtitle D regulations. Upstream and downstream groundwater monitoring is required at all facilities with surface impoundments as a means of identifying potential impacts resulting from the operation of the disposal system.

Respons e: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06959

- 4 

### Organization: Prairie Rivers Network, Illinois Chapter of the Sierra Club, American Bottom Conservancy


### Commenter : Traci L. Barkley Commenter Type: Advocacy Group

Comment Excerpt Text: As concern with rising health care costs and increasing prevalence of cancer mounts, one of the most responsible things we can do as citizens, elected officials and public service agencies is to reduce and mitigate th e known threats to public health and safety. Unfortunately, the current regulatory framework to control these wastes is weak and convoluted. In Illinois, depending on where the coal ash is produced and where it will be disposed of, the party responsible fo r the coal ash may or may not need to complete paperwork or apply for a permit from one of three different state agency divisions. There also may or may not be an evaluation of the coal ash’s relative threats to existing uses or natural resources at the pr oposed disposal site. For example, no permit is required if coal ash is disposed of onsite at a power plant, though the Illinois EPA’s Bureau of Land is notified. No permit is required if the coal ash is dumped in an abandoned mine, though the Illinois Dep artment of Natural Resources is notified. In both of these instances, no review of potential threat to groundwater or surface waters is conducted and no opportunity exists for the public to comment. If coal ash is disposed of at active mines, a permit is r equired by IEPA's Bureau of Water though very few pollution controls like liners, currently recommended by the USEPA and the National Academy of Sciences, are required. In Illinois, our infrastructure and capacity to coordinate the proper monitoring and ma nagement of coal ash cannot be relied upon to ensure adequate protections of our water supplies, resources and communities.

In fact, it wasn’t until the state

- wide review of ash impoundments in Illinois in the wake of the December 2008 impoundment failur e in Kingston, Tennessee, that data collected at coal ash disposal sites were reviewed by the Illinois Environmental Protection Agency. What the Agency has found is startling: 1) Most coal ash impoundments do not have liners to contain waste and prevent po llution of groundwater. 2) Groundwater monitoring is not required at most coal ash impoundments. 3) Groundwater is contaminated at the ten power plant sites that have been investigated thus far,

and 4) Dams creating the impoundments at most sites are unpe rmitted and have not been inspected277

for safety or stability.

In Illinois, we are missing what we so desperately need to protect our people and wildlife from

coal ash contamination

- liners, monitoring, effective clean

- up plans, dam safety requirements,

a nd enforceable standards.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07488

- 8 

### Organization: Illinois Environmental Protection Agency


### Commenter : Scott O. Phillips Commenter Type: State Government

Comment Excerpt Text: Currently CCR surface impoundments are regulated under the Illinois Pollution Control Board water regulations (35 III. Adm. Code 309). Since the early 1990s, new surface impoundments receiving CCR have been required to be lined and groundwater monitoring wells have been installed around many of these new surface impoundments. In addition, since 2009 the Illinois EPA has also required double composite liners with leachate collection for new surface impoundments receiv ing CCR.

Existing surface impoundments have recently been evaluated and prioritized based on the potential for groundwater impacts. Facilities with high potential for aquifer recharge, and existing or future potable use were required, under the Bureau of Water permit program, to install a groundwater monitoring well system, implement a monitoring program, and submit electronic compliance reports to the Illinois EPA. Facilities with low potential for aquifer recharge and existing or future potable uses in t he area were requested to assess the potential for contaminant migration at their respective sites.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09766

- 2 

### Organization 1 

### : Labadie Environmental Organ ization (LEO)


### Commenter 1 : Scott White, Washington University Environmental Law Clinic on behalf of the Labadie Environmental Organization (LEO) Commenter Type: Advocacy Group

Comment Excerpt Text:

Missouri is one of the most coal

- dependent states in the country. According to the National Mining Association (NMA), Missouri generates approximately 81 percent of its electricity through the burning of coal, compared with a national average of 50 percent. [Footnote 1: National Mining Association , Cost Per kWh and Percent of Coal Power Generation (March 2010), available at http://www.nma.org/pdf/c_map_use_cost_electricity.pdf, and Fast Facts About Coal (2010), available at http://www.nma.org/statistics/fast_facts.asp. ] Missouri ranks #6

in the na tion in coal use. [Footnote 2: National Mining Association, Coal Use By State

– 2008 (updated April 2010), available at http://www.nma.org/pdf/c_use_state.pdf. ]278

Missouri’s coal plants typically dispose of their coal ash in surface impoundments (also know n as ash ponds). There are reportedly 29 ash ponds (and 5 operating landfills) at 14 coal plants in the state. [Footnote 3: As You Sow, Missouri and Coal Ash Disposal in Ponds and Landfills, available at http://www.epacoal.org/factsheets/Missouri

- coal

- ash

- factsheet.pdf. ]Missouri regulates the disposal of coal ash into surface impoundments under the power plants’ water pollution discharge (“NPDES”) permits, with no effluent limits or discharge monitoring for the toxic metals in coal ash. Although the Missou ri Department of Natural Resources (“DNR”) has authority to require groundwater monitoring in NPDES permits, it does not use that authority to require groundwater monitoring at coal ash ponds. Even when DNR was informed of substantial leaks at an unlined, 40

- year old, 154

- acre ash pond at the state’s largest coal plant (see discussion of Labadie plant’s ash ponds, below), it failed to require groundwater monitoring and failed to require any remediation of what is now at least 18 years of ongoing leakage. Th is leaking ash pond sits alongside the Missouri River, and everyone in the vicinity depends on groundwater for their drinking water.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09766

- 4 

### Organiz ation: Labadie Environmental Organization (LEO)


### Commenter : Scott White, Washington University Environmental Law Clinic on behalf of the Labadie Environmental Organization (LEO) Commenter Type: Advocacy Group

Comment Excerpt Text: These Comments Address Problems with State Regulation, Focusing on Ash Disposal by

Ameren Missouri.

Ameren Missouri is the largest electric utility in Missouri, serving approximately 1.2 million electric customers in the State. [Footnote 4: http://www.am eren.com/sites/aue/pages/home.aspx. ] Ameren’s Labadie Power Plant, with a generating capacity of 2,405 MW, is the largest plant that in Missouri, and one of the largest in the nation. This plant generates 18

- 19 million MWhr of electricity annually, burnin g over 10 million tons of sub

- bituminous coal in the process. Ameren estimates that the Labadie plant alone currently generates over 500,000 tons per year of coal ash, and Ameren projects the volume to increase to 650,000 tons per year in the future. [Foot note 5: Ameren Slides from Public Workshop on Proposed Utility Waste Landfill at Labadie Power Plant (2009), Attachment A

- 1.]

Ameren Missouri operates four coal

- fired power plants in the state, all in the St. Louis Metropolitan Area. Ameren has historica lly disposed of coal ash waste from all four plants at on

site ash ponds, which in turn discharge into the Missouri and Mississippi Rivers or tributaries thereof. The following chart contains some basic information from Ameren’s documents regarding the fou r plants: [See original comment for the four plant chart.]

[Footnote 6: All information in this chart, except for the Generation column (see footnote 7) and279

Ash Generation (see footnote 8) is from May 24, 2009 and March 26, 2009 letters with

attachments f

rom AmerenUE (Michael Menne) to USEPA (Richard Kinch), Response Request for Information under Section 104 (e) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9604(e), Attachment A

- 2. ]

[Footnote 7: AmerenUE (now kno wn as Ameren Missouri), Facts About AmerenUE, available at http://www.ameren.com/sites/aue/source/AboutUs/Documents/ADC_UE_FactSheet.pdf. ]

[Footnote 8: This information was obtained by multiplying tons of coal ash generated per day

from Ameren Slides fro m Public Workshop on Proposed Utility Waste Landfill at Labadie Power Plant (2009) by 365 days/year, Attachment A

- 1.]

Ameren’s coal ash surface impoundments are regulated by the state under the plants’ NPDES permits. As noted above, none of the permits re quire Ameren to monitor the groundwater at or near the ash ponds, including the unlined ash ponds, notwithstanding the fact that “groundwater monitoring for these kinds of units is a minimum for any credible regulatory regime.” Proposed Rule, 75 Fed. Reg. at 35152.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09766

- 7 

### Organization: Labadie Environmental Organization (LEO)


### Commenter : Scott White, Washington University Environmental Law Clinic on b ehalf of the Labadie Environmental Organization (LEO) Commenter Type: Advocacy Group

Comment Excerpt Text: DNR Has Essentially Ignored Substantial Ash Pond Leaks at the Labadie Power Plant.

Ameren’s Labadie Power Plant has two ash ponds on site. The fir st pond, constructed in 1970 and 154 acres in size, is unlined and receives fly ash, bottom ash, ash sluicing water, wastewater, waste chemicals, and coal pile runoff before discharging to the Missouri River via Outfall 002. The second one, constructed in 1993 and 79 acres in size, is lined, receives fly ash, and discharges to the first pond.

The plant’s NPDES permit includes discharge limits for the ash pond discharge only for pH, suspended solids, and oil and grease, and monitoring requirements for thos e parameters as well as flow and sulfates. Although the permit states that “[s]ubsurface discharges from wastewater treatment ponds or ash ponds shall, at the property boundary, meet the effluent limitations for

subsurface waters of the state under 10 CSR 20

- 7.015(7), with appropriate consideration of up

gradient water quality,” the permit does not require and has never required groundwater monitoring to determine whether Ameren is complying with this condition [Footnote 9: 1994

- 03

- 18, Labadie NPDES Operati ng Permit, Attachment B

- 1. ].

The need for groundwater monitoring at the Labadie plant is far from theoretical. Since 1992, DNR has known about two substantial leaks at the 1970, 154

- acre, unlined ash pond. In its 1992280

NPDES permit renewal application, A meren informed DNR of the two leaks

— which it labeled “seeps.” It stated that one “seep” has a flow rate of up to 30 gallons per minute, and the other has

a flow rate of 2

- 5 gallons per minute. Ameren stated that while its dye studies were inconclusive

as t o where the seeps were originating, its chemical analysis indicated that the source is the ash ponds. With regards to the larger leak, Ameren stated: “We believe that there is no need to regulate this seep since it is confined on site.”[Footnote 10: 1992

- 0 2

- 27 Labadie NPDES Permit Renewal Application, Attachment B

- 2.] However, Ameren provided no information to demonstrate that the “seep” was “confined on site.”

During the 18 years that DNR has known of these substantial leaks from the Labadie plant’s

unli ned ash pond, it has not required Ameren to conduct groundwater monitoring, it has not conducted its own groundwater monitoring, it has not required Ameren to determine whether any additional leaks may have occurred, and it has not required Ameren to defin e or clean up any contamination that has likely resulted from these leaks. Instead, it has virtually ignored them.

According to a 1995 report to EPA: [Footnote 11: 1995

- 03

- 27 Labadie Power Plant Site Inspection Prioritization, Attachment B

- 3.]

- Ground water is present beneath the Labadie Power Plant site at 1

- 6 feet below the surface in alluvial sediments that allow contaminants to migrate from the surface to groundwater.

- Bedrock units under the alluvium include the Powell, Cotter, Jefferson City, R oubidoux, and Gasconate Dolomite Formations, all of which allow moderate to large amounts of water to

infiltrate to wells.

- All residents within 4 miles of the plant rely on groundwater for drinking water.

Moreover, EPA has clearly highlighted unlined surface impoundments as posing high risks for causing groundwater and surface water contamination.

The results of [EPA’s] risk analyses show that certain management practices

— the disposal of both wet and dry CCRs in unlined waste management units, but p articularly in unlined surface impoundments, and the prevalence of wet handling, can pose significant risks to human health and the environmental releases of CCR toxic constituents to ground water and surface water. [Footnote 12: Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities; Proposed Rule (“Proposed Rule”), 75 Fed. Reg. 35128, 35149 (June 20, 2010).]

DNR’s failure to respond to the knowledge

— 18 year s ago

— of substantial leakage from the Labadie plant’s unlined surface impoundment highlights the state’s unwillingness and inability, as a practical matter, to regulate the disposal of coal ash in a manner that will protect public

health and the environmen t. Even though DNR has been fully aware of the leaks and has authority under state regulations to require groundwater monitoring in NPDES permits, it has not required any groundwater monitoring. Only by classifying coal combustion residue as hazardous

or s pecial waste under Subtitle C of RCRA and empowering EPA to enforce the rules on coal ash disposal will public health and the environment be adequately protected.281

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10498

- 17 

### Organization 1 

### : Florida Electronic Power Coordinating Group, Inc. (FCG)


### Commenter 1 : Carl Eldred Commenter Type: Electric Utility Company

Comment Excerpt Text: In Florida, industrial wastewaters and the facilities in which they are received and conveyed are typically regulated by the state under Chapter 62

- 620, F.A.C., which governs discharges to groundwater as well as National Pollutant Discharge Elimination System (“NPDES”) discharges to surface waters consistent with the requi rements under CWA. These permits contain various monitoring requirements, including groundwater monitoring, treatment requirements, effluent limitations, record keeping and reporting requirements and are rigorously enforced.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10736_DEN

- 048

- 1 

### Organization: Earthjustice


### Commenter : Melanie Kay Commenter Type: Advocacy Group

Comment Excerpt Text: First, the current laws of western states governing coal ash disposal are grossly inadequate. Of the ten states surrounding Colorado that generate the largest volumes of ash, [Footnote 1: AZ, CO, KS. MT. NO, NM, NV, OK, UT, and WY ] seven do not require groundwater monitoring at

coal ash sur face impoundments. This single regulatory requirement is so important that EPA uses it as a benchmark to predict whether a state will adopt the proposed subtitle D guidelines. In other words, if a state has not yet required its most dangerous waste dumps t o monitor the underlying groundwater, then EPA assumes that these states will not enforce or adopt new guidelines that are not mandatory. Thus EPA believes that the west, with its booming coal industry, is out of luck under the subtitle D scheme. And the s tatus quo of state regulations is indeed dismal. In fact, Kansas, Montana, New Mexico and Utah exempt coal ash from their solid waste regulations entirely. Consequently, landfills and waste ponds are not required by law in these four states to employ even the most basic safeguards such as liners, monitoring, corrective

action and financial assurance.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10983_CHA

- 018

- 1 

### Organization: Appalachian Voices


### Commenter : Eric Chance Commenter Type: Advocacy Group282

Comment Excerpt Text: Based on a review of voluntary groundwater monitoring data, every coal ash pond in North Carolina for which data was available is leaching heavy metals and other pollutants into groundwater. Equally as alarming as the prevalence of groundwater contamination at these sites is the level of contamination. The monitoring showed 681 exceedances of state groundwater standards, including Arsenic levels up to 8.8 times the state standard, Boron levels up to 16.6 times the state standard, Chromium levels up to twice the state standard, Iron levels up to 380 times the state standard, Lead levels up to 3 times the state standard and manganese levels up to

200 times the state standard. This co ntamination not only has the potential to damage nearby waterways, but it also can contaminate drinking water of nearby res1dents. At only of the 13 ash ponds reviewed in this study has NCDENR required any sort of cleanup.

Response: The Agency acknowled ges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11022_CHA

- 057

- 6 

### Organization: Santee Cooper


### Commenter : Jay Hudson

Comment Excerpt Text: III. South Carolina's DHEC's Regulations

There are solid waste programs already in place in South Carolina which are being administered successfully. SC DHEC has a robust program that is protective of the environment. DHEC's industrial solid waste regulations were revised in 2008 and now meet vir tually all the Subtitle D requirements proposed in the rule for future landfills. DHEC already requires groundwater monitoring around Santee Cooper's ash ponds and at our landfill. Groundwater is monitored at Santee Cooper by a professional geologist and t he analytical results are submitted to DHEC

semi

- annually.

For states, such as South Carolina, that currently have robust regulations, this rule would be at best somewhat duplicative under the Subtitle D option and overkill under the Subtitle C 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 impoun dments. 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

- 2009

- 0640

- 11074_CHA

- 109

- 1 

### Organization: South Carolina Chapter of Sierra Club and League of Women Voters of South Carolina (LWV)


### Commenter : Peggy Brown Commenter Type: Advocacy Group

Comment Excerpt Text:283

South Carolina has 12 polluting outdated coal burning power plants that require at least one or more coal ash ponds. Leaching unregulated coal ash ponds will percolate into the ground, and without proper barriers eventually reach groundwater and contaminat e the water with toxic waste. Right now we have three known coal ash ponds that are leaching coal waste into the groundwater.

At this time SC DHEC has no groundwater monitoring system in place. Due to budget restrictions they have re

- evaluated the number surface water monitoring sites and the frequency of testing. With recent evidence of ground water contamination at the Wateree Eastover site DHEC has a pending ground water monitoring requirement to begin at some point; but in reality, if they're having t o cut back monitoring surface waters where will the funding come from to begin a new groundwater monitoring program?

South Carolina has many rural areas that rely on well water for drinking, state records indicate the potential for more private wells to b e contaminated may occur. Groundwater discharges from coal combustion waste dumps may load drinking water sources with contaminants that could increase nearby residents' cancer risk to as high as a staggering 1 in 50. Potential well water

contamination of rural South Carolinians puts the already economically challenged even at higher health risk.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11084_CHA

- 011

- 2 

### Organization: Greenpeace USA


### Commenter : Robert Gardner

Comment Excerpt Text: Here, in North Carolina, voluntary groundwater monitoring at Duke Energy’s Dan River Steam Station’s coal ash ponds has detected levels of chromium, iron, lead, manganese, silver, and sulfate that exceed state groundwa ter standards and federal Maximum Contaminant Levels (MCLs) and Secondary MCLs (SMCLs). Dan River Steam Station has two unlined coal ash ponds as well as an unlined dry ash landfill. Fifteen years of sporadic voluntary monitoring beginning in November 1993 indicates that there is on

- site groundwater contamination that is likely migrating outside of the state

- designated “compliance boundary” for Dan River’s CCW impoundments. EPA ranked both wet CCW ponds at Dan River Steam Station as “high hazard”

surface im poundments, meaning that their failure will probably cause loss of life (USEPA, 2009).

R esponse: The Agency acknowledge s and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11692_K

- 113

- 1 

### Organization: Appalachian Voices


### Commenter : Eric Chance Commenter Type: Advocacy Group

Comment Excerpt Text:284

In NC a review of voluntary groundwater monitoring data revealed that every coal ash pond for which data was available is leaching heavy metals and other pollutants into groundwater. Equally

as a larming as the prevalence of groundwater contamination at these sites is the level of contamination. The monitoring showed 681 exceedances of state groundwater standards, including Arsenic levels up to 8.8 times the state standard, Boron levels up to 16.6 times the state standard, Chromium levels up to twice the state standard, Iron levels up to 380 times the state standard, Lead levels up to 3 times the state standard and manganese levels up to 200 times the state standard. This contamination not only has the potential to damage nearby waterways, but it also can contaminate drinking water of nearby residents. The extent and degree of this offsite contamination is largely unknown because it has not been studies, and there are no legal requirements for the co mpanies to do so. At only 1 of the 13 ash ponds reviewed by this study has NC DENR required any sort of cleanup.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0183

- 3 

### Organization: Colorado Department of Public Health and Environment


### Commenter : Joe Schieffelin Commenter Type: State Government

Comment Excerpt Text: In Table 3, on page 26 of the EJ comments, it is noted that Colorado is one of seven states that specifically exclude or exempt CCR impoundments from ground water monitoring requirements. Colorado's entry in Table 3 is footnoted to say that only "existing units" are grandfathered out of the monitoring requirements. Again, this is incorrect. Colorado's solid waste surface impoundments are required by regulation to have upgradient and downgradient ground water monitoring wells (Section 9.5.8, 6 CCR 1007

- 2, Pa rt 1).

In Table 5, on page 27 of the EJ comments, it is noted that Colorado is one of 4 states that have "qualified" ground water monitoring requirements for CCR surface impoundments. The two examples of "qualifications" given are 1) that variances of th e quarterly monitoring are available, and 2) on

- site impoundments are exempted. It is true that the Department can grant waivers from regulatory requirements if an alternative is proposed. In so doing, we ensure that the alternative approved is equally pro tective. Again, there are many circumstances where a waiver of certain requirements, including ground water monitoring frequencies, etc., may be appropriate if the alternative is adequate. With respect to the second type of "qualification," we disagree tha t on

site impoundments are exempted. See our comment to Table 2 above.

Response: The Agency acknowledg es and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0228

- 4 

### Organization: Virginia Department of Environmental Quality (DEQ)


### Comment er : Jeffery Steers Commenter Type: State Government285

Comment Excerpt Text: Surface Impoundment Regulation Virginia’s surface impoundments are regulated under the authority of our State Water Control Law. The provisions of DEQ’s VPDES Permit Manual and associated Water Division Guidance (GM 98

- 2010) address procedures staff are to use to protect state waters in accordance with the groundwater standards provided in regulation under the Virginia Water Quality Standards Regulations, 9VAC 25

- 260. The manual recognizes the necessity for groundwater monitoring and liner requirements at industrial or municipal facilities and is dependent on the technical evaluation of site specific characteristics. Where potential groundwater impacts are suspected DEQ may requir e a groundwater monitoring plan through a VPDES permit special condition. The purpose of the groundwater monitoring plan is to determine if the system integrity is being maintained and to indicate if the activities at the site are resulting in violation of the State Water Control Board’s Ground Water Standards. Specific language for the special condition is

contained in the manual.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0236

- 11 

### Organization: Iowa Department of Natural Resources (IDNR)


### Commenter : Brian Tormey Commenter Type: State Government

Comment Excerpt Text: · Table 25 (page 39) [from Document No. EPA

- HQ

- RCRA

- 2009

- 0640

- 6315]

– The question posed states, “Is groundwater monitoring mandato ry at CCR landfills?” This Table reiterates the findings expressed in Table 2, but compares the updated information against EPA’s 2010 Regulatory Impact Analysis (RIA). Iowa Code section 455B.304 mandates groundwater monitoring at sanitary disposal project s, and variances cannot be given to a state statute. Iowa Administrative Code 567 Chapter 103.1(4)“d” goes on to further define groundwater monitoring requirements at CCR landfills.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0239

- 10 

### Organization: Earthjustice, et. al.


### Commenter : Lisa Evans Commenter Type: Advocacy Group

Comment Excerpt Text: IV. Adequacy of State Programs (NODA Section VIII)

A. Response to comments submitted by the Assoc iation of State and Territorial Soil Waste Management Officials

The comments submitted by the Association of State and Territorial Solid Waste Management Officials (“ASTSWMO”) [Footnote 46: See EPA

- HQ

- RCRA

- 2009

- 0640

- 8787.] in response to286

the EPA’s propose d rulemaking conclude that existing state waste management programs are sufficient to regulate CCR and, thus, that CCR need not be listed as a special waste or regulated under the RCRA subtitle C regulations. However, in defense of these conclusions, ASTSW MO offers unsupportable assumptions and presents an inaccurate picture of state regulatory programs and the environmental protections guaranteed thereunder.

ASTSWMO admits that, in many states, CCR surface impoundments are not subject to the requirements of solid waste management statutes and regulations. [Footnote 47: Id. at 24.] Nevertheless, and despite this admitted lack of regulation under state waste programs, ASTSWMO posits that informal coordination between other state agencies and waste program

im plementing agencies is “good evidence” that states would adopt national waste management standards for CCR in the event that such standards are promulgated. The comments point to no facts that would support such a conclusion.

ASTSWMO claims that the “Stat e enforcing entities” in 42 out of 42 states have the authority to require remediation of CCR surface impoundments, in 43 out of 44 states have the authority to require repair and maintenance during operation, in 41 out of 43 states have the authority to

r equire the closure of CCR surface impoundments, and in the “majority” of states have the authority to require minimum standards for impoundment design and engineering, leachate collection, gas collection, groundwater and leachate monitoring, financial assu rance, post

- closure care and maintenance, removal, and replacement of water supply. [Footnote 48: Id. at 25.] As an initial matter, whether or not a state has “the authority” to impose certain requirements on surface impoundment operators does not guarante e that a state ever will exercise that authority or that the public can depend on state regulation to protect against the threats posed by improper CCR disposal. Indeed, ASTSWMO cannot claim (and has not attempted to do so) that a majority of states requir e all of the aforementioned regulatory safeguards. We have reviewed the laws and regulations of the top ten CCR

- generating states

— PA, TX, OH, WV, KY, IN, FL, GA, NC, NM, and aside from Pennsylvania, none of these states require groundwater monitoring or le achate collection for all CCR surface impoundments, regardless of whether such impoundments are regulated by state solid waste management or other regulatory programs, e.g., water programs.

Moreover ASTSWMO’s survey results

– for which the Association giv es no details and does not identify which states or which “enforcing entities” are included in its count

– are irrelevant to whether the disposal of CCR is adequately regulated under state waste management programs. The figures offered serve only to obscur e the actual lack of CCR surface impoundment regulation across the nation. While other “enforcing entities” might regulate wastewater discharges from surface impoundments, for example, ASTSWMO offers no evidence that these entities require all of the safeg uards necessary to ensure adequate protection of human health and the environment from the dangers of CCR disposal. Such disposal must be regulated by waste management agencies that possess the relevant expertise regarding design standards, groundwater and leachate monitoring, and remediation. While ASTSWMO recommends, “EPA should continue to build upon existing State programs through use of the Subtitle D approach,” [Footnote 49: Id.] it fails to identify any solid waste management programs on which EPA co uld

build.

The comments Earthjustice and others submitted in November 2010 in response to EPA’s287

proposed rulemaking (“Earthjustice 2010 Comments”) presented a thorough analysis of existing state regulations in 37 states, which states comprise over 98 perc ent of the coal ash generated nationally. [Footnote 50: One note of clarification, Attachment 4 to the Earthjustice 2010 Comments indicates that Wisconsin exempts existing CCR landfills from groundwater monitoring requirements and mistakenly cites section 507.02 of the State’s Natural Resources regulations. Wisconsin only grandfathers CCR landfills from design standards, see WI ADC § NR 504.05(1), not from groundwater monitoring requirements. Whether groundwater monitoring will be required is a question lef t to the discretion of state regulators. See WI ADC s NR § 507.04.] That analysis revealed that, contrary to ASTSWMO’s undocumented claims, the majority of states fail to require essential safeguards for CCR surface impoundments. Earthjustice analyzed stat e laws and regulations for the same safeguards specifically claimed by ASTSWMO to be required in the majority of states. Our findings are reiterated below, and citations to specific state laws are contained in Attachment 7 to these comments, which we

submi t again to support our legal analysis. [NOTE from ICF analyst: Attachment 7 provides info on landfills; Attachment 8 provides info on surface impoundments]

1. Requirement for composite liner

Of the 37 states we examined, only three required composite lin ers for all new CCR surface impoundments.

[See original comment for figure with data from Earthjustice 2010 Comments analysis of state laws and regulations]

2. Requirement for leachate collection system

Only five out of 37 states examined required leach ate collection systems for all new CCR surface impoundments.

[See original comment for figure with data from Earthjustice 2010 Comments analysis of state laws and regulations]

3. Requirement for groundwater monitoring.

Only two out of the 37 states exam ined required groundwater monitoring during CCR surface impoundment operation. Of those two states, only Louisiana required groundwater monitoring for thirty years after unit closure.

[See original comment for figure with data from Earthjustice 2010 Comme nts analysis of state laws and regulations]

4. Requirement for financial assurance

Only 12 states out of the 37 states examined required financial assurance for CCR surface impoundments.288

[See original comment for figure with data from Earthjustice 2010 Comments analysis of state laws and regulations]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0253

- 2 

### Organization: State of New Hampshire Department of Environmental Services


### Commenter : Michael Guilfoy Commenter Type: State Government

Comment Excerpt Text: The following comments identify and correct the inaccurate assertions specific to New Hampshire in the Document. [Document ID No. EPA

- HQ

- RCRA

- 2009

- 0640

- 6315, hereinafter

referred to as the Doc ument]

1) On page 26, Table 3 of the Document incorrectly states that New Hampshire specifically exempts surface impoundments from ground water monitoring requirements. The incorrect statement is repeated in Table 26 on page 41. In New Hampshire, CCR is c lassified as a solid waste and solid waste landfills, including surface impoundments, are subject to the state’s solid waste and ground water management statutes and rules (ref. RSA 149

- M, RSA 485

- C, Env

- Sw

100

- 2000 and Env

- Or 600). In addition, those faci lities are subject to New Hampshire’s Dam Rules (Env

- Wr 100

– 700), which classifies and regulates dams according to their potential to

cause harm to human and the environment

2) On Page 27, Table 5 of the Document incorrectly states that New Hampshire s pecifically exempts CCR impoundments from groundwater requirements. For the same reasons as stated in comment 1 above this is not true, i.e., CCR surface impoundments are regulated as solid waste landfills in New Hampshire.

3) On Page 28, Table 7 of the Document states that ground water wells are not required at surface impoundments. For the same reasons as stated in comments 1 and 2 above, this is not

true.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0263

- 6 

### Organization: South Carolina Department of Health and Environmental Control


### Commenter : Daphne Neel Commenter Type: State Government

Comment Excerpt Text: Regulation of Surface Impoundments

South Carolina is cited as being deficient in a number of areas related to the regulation of surface impoundments. This may be due, in part, to the fact that South Carolina does not have a289

regulation specific to coal ash impoundments. However, this does not mean they are not regulated. Un der the South Carolina Pollution Control Act (PCA), and other regulatory programs, the Department has the necessary authority to properly regulate surface impoundments. The PCA not only regulates discharges to surface waters but also discharges to groundwa ter. Groundwater monitoring may be required under the regulations promulgated pursuant to the PCA. Tables 3, 5, 7, and 24 [of the EJ Comments] state that there are no groundwater monitoring requirements for surface impoundments in South Carolina. This is n ot a correct statement. A facility's NPDES permit may include groundwater monitoring and/or other programs may require groundwater monitoring if, for example, it is a legacy impoundment with historical groundwater issues. Existing surface impoundments can be ordered to make corrective actions as necessary; therefore, any legacy impoundments can be addressed under state authority where concerns over any impacts to surface or groundwater exist. Table 7 states that South Carolina does not specifically require three downgradient and one upgradient well for groundwater monitoring. The number of monitoring wells is site

- specific, dependent upon the hydrogeologic characteristics of the site.

Response: The Agency acknowledges and appreciates the comment.



### Commen t Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0269

- 6 

### Organization: Indiana Department of Environmental Management (IDEM)


### Commenter : Thomas Easterly Commenter Type: State Government

Comment Excerpt Text: Most of Indiana's existing surface impoundments for CCR were subject to construction permits from the Office of Water Quality. In addition, when an existing pond closes in place containing CCR the site is subject to closure requirements under Indiana's solid waste regulations, 329 IAC 10, including installation of a ground water monitoring system.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 10 

### Organization: Association of State and Territorial Solid Waste Management Officials (ASTSWMO)


### Commenter : Ed Thamke Commenter Type: State Government

Comment Excerpt Text: The strict interpretation of the groundwater “requirements” is not the only deficiency in the Earthjustice State Review. The review [from Earthjustice Comments “Earthjustice 2010 37

- State Review”] appears to be based on State regulations only. However, Sta te management practices extend beyond what is explicitly specified in regulations.

Regulation by Permit

Kentucky is listed as having no liner requirements for disposal of CCR in landfills. Bruce Scott,290

Commissioner of the Kentucky Department of Environ mental Protection, explained:

“While our regulations do not currently explicitly require liners, CCR landfills being permitted are including liners. There has not been a recent regulation revision. However, the Solid Waste Branch currently works with req uests for CCR landfills and routinely requires liners for landfills in individual permits as a means to protect groundwater resources.

The Division of Waste Management (DWM) regulates CCR in two ways: 1. CCR is regulated as a special waste under KRS 224 .50

- 760. Special waste permits for coal ash landfills are permitted consistent with 401 KAR Chapter 45, specifically 401 KAR 45:110 for design and 201 KAR 45:160 for groundwater monitoring. 2. Surface impoundments or ash ponds are authorized under a “perm it

- by

- rule” consistent with 401 KAR 45:060 if the ash pond has an active NPDES (KPDES) permit.

3. There are 20 coal

- fired power generating stations in Kentucky with a combined total of 13 landfills and 43 ash ponds managing CCR as a special waste. All of our CCR management requests of recent years and currently (6 pending) have been for CCR management in landfills where liners are being designed/permitted.” [Footnote 38: E

- mail correspondence with R. Bruce R. Scott, Commissioner, Kentucky Department for th e Environment, November 10, 2011.]

Guidance Documents Texas is listed as having neither liner nor groundwater monitoring requirements for surface impoundments. Texas characterizes waste as Class 1, 2, or 3 wastes. CCRs are a Class 2 waste pursuant to th e Texas Administrative Code. [Footnote 39: Texas Administrative Code §335.1(20)] The Texas Commission on Environmental Quality provides a series of Technical Guidance Documents [Footnote 40: Texas Commission on Environmental Quality, Hazardous

and Industri al Waste

- Technical Guidance Document Index at http://www.tceq.texas.gov/permitting/waste_permits/ihw_permits/tech_guidance_index.html] to assist in the preparation of permit applications for the different Class landfills. Technical Guideline No. 4 applie s to Nonhazardous Industrial Solid Waste Surface Impoundments. For a Class 2 surface impoundment, liner recommendations include Geomembrane (polyethylene 60 mil, other types 30 mil) and underlying leak detection system; or Compacted clay (2 feet); or Equiv alent in

- situ clay; or GCL overlain by protective soil (1 foot). Ground

- water monitoring wells are recommended for all Class 1 and Class 2 sites, in addition to leak detection systems. TCEQ guidance for landfills receiving Class 1 and Class 2 wastes recomm ends a composite liner (compacted clay immediately beneath a synthetic membrane liner). While it is correct to say that the Guidelines are not mandatory, it is certainly a factor in permit decisions.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 4 

### Organization: Association of State and Territorial Solid Waste Management Officials (ASTSWMO)


### Commenter : Ed Thamke Commenter Type: State Government

Comment Excerpt Text:291

2010 Regulatory Impact Analysis Is Not an “Updated” Reflection of State Regulatory Programs

Earthjustice mistakenly claims that the 2010 RIA updates the examination of State regulatory programs that was performed in the 2005 regulatory cost estimate (DPR A Report):

“The 2010 RIA, prepared by the EPA’s Office of Resource Conservation & Recovery, illustrates a shocking absence of CCR disposal requirements across the nation. The report updated the 2005 DPRA Report’s examination of the regulatory programs of 34 states.” [Footnote 28: Earthjustice Comments, page 18]

If Earthjustice was correct in saying that the 2005 data was updated for the 2010 report, it would indeed show an absence of improvements in CCR programs. However, the data was not updated

for th e 2010 report. Both the 2005 and 2010 reports contain tables listing the minimum State groundwater monitoring criteria and minimum State engineering controls for CCR landfills and surface impoundments. The data presented is exactly the same in the 2005 rep ort (Exhibits 2

- 1 through 2

- 3) and the 2010 report (Exhibits E

- 1 through E

- 4). In other words, the characterization of State programs was not updated and Earthjustice relies upon outdated information to characterize the current state of regulatory programs . It is not likely that Earthjustice deliberately misrepresented the facts. But failing to accurately identify the nature of the data that it relied upon weighs heavily against the credibility of the Earthjustice Comments.

Additionally, the data collecti on is inaccurately portrayed as a survey, which might suggest a greater likelihood that the information was accurate if provided by the States. In fact, the information is based on a 3rd party review of State regulations, which alone may not accurately

ref lect program requirements, such as permit conditions. [Footnote 29: DPRA Report, page 2

- 2]

Compounding the problem is the fact that Earthjustice’s summary of the raw data does not match the data itself. For example, Earthjustice reports that “85 percent of the states surveyed do not require groundwater monitoring and leachate collection at all surface impoundments (both new and existing).” [Footnote 30: Earthjustice Comments, page 18] The implication is that only 15 percent of States require groundwater m onitoring and leachate collection at surface impoundments. However, according to the reported data, 50 percent of the States required groundwater monitoring for surface impoundments and 41 percent required leachate collection. The Earthjustice summary of t he raw data underestimates the adequacy of State programs by a significant margin.

Contrary to Earthjustice’s claim, the five year span between the 2005 and 2010 EPA reports cannot be used to characterize stagnancy in State CCR disposal programs because the data used in both reports are from the same point in time.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0287

- 10 

### Organization: Illinois Environmental Protection Agency (EPA)


### Commenter : John Kim Commenter Type: State Government292

Comment Excerpt Text: Page 36, Table 24

- The Environmental Groups [from Document No. EPA

- HQ

- RCRA

- 2009

- 0640

- 6315] make a statement the Illinois EPA does not require post

- closure groundwater monitoring for 30 years at a ll CCR surface impoundments. Illinois has the authority to make this requirement, although as yet has not found a need to require 30 years of monitoring. First, under Section 4(b) of the Illinois Environmental Protection Act (Act) [415 ILCS 5/4(b)] Illinoi s EPA has a duty to collect and a uthority to collect information :

".. . as may be required to carry out the purposes of the Act including ascertainment of the quantity and nature of discharges from any contaminant source and data on those sources, and to operate and arrange for the operation of devices for the monitoring of environmental quality."

Second, under the GMZ provisions of the Board's groundwater quality standards regulations at Subsection 620.250(b) and Subsection 620.250(c),

A groundwater ma nagement zone is established upon concurrence by the Agency that the conditions as specified in subsection (a) are met and groundwater management continues for a period of time consistent with the action described in that subsection .

A groundwater manage ment zone expires upon the Agency's receipt of appropriate documentation which confirms the completion of the action taken pursuant to subsection (a) and which confirms the attainment of applicable standards as set forth in Subpart D.

Thus, Illinois EPA w ould require 30 years of groundwater monitoring based on outcome and performance or compliance with the groundwater standards.

· Page 41, Table 26

- In table 26 and the footnote b, Environmental Groups errone ously conclude

that we do not require monitorin g at all CCR impoundments. See the previous comments relative to Page 26, Table 3.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0287

- 5 

### Organization: Illinois Environmental Protection Agency (EPA)


### Commenter : John Kim Commenter Type: State Government

Comment Excerpt Text: Illinois EPA uses the same requirements that apply at municipal surface impoundments (under 35 Ill. Adm. Code 370) for industrial impoundments using our statutory authority and mandates under Section 4(b), Section 11, Section 12(a), Section 39(a), Section 39(b) of the Illinois Environmental Protection Act (Act), Section 2(b) of the Illinois Groundwater Protection Act, and

35 Ill. Adm. Code 620.

First, under Section 4(b) of the A ct [415 ILCS 5/4(b)] Illinois EPA has a duty and authority to293

collect information:

"... as may be required to carry out the purposes of the Act including ascertainment of the quantity and nature of discharges from any contaminant source and data on those so urces, and to operate and arrange for the operation of devices for the monitoring of environmental quality."

Second, Section 11 of the Act (415 ILCS 5/11) describes part of the purpose of Title III, as

follows:

"... assure that no contaminants are discharge d into waters without being given the degree of treatment or control necessary to prevent pollution."

Third, under Section 12(a) [415 ILCS 5/12(a)] :

" No person shall: (a) cause, threaten or allow the discharge of contaminants into the

environment in an y State so as to cause or tend to cause water pollution in Illinois, either alone or in combination with matter from other sources, or so as to violate regulations or standards adopted by the Pollution Control Board under this Act.

Fourth, Sections 39(a) and 39(b) of the Act [415 ILCS 5/39(a) and 415 ILCS 5/39(b)], respective ly :

The Agency may issue a permit only upon proof that "the facility, vehicle, vessel, or aircraft will not cause a violation of the Act or regulations hereunder."

NPDES permits shal l contain conditions which may be required to accomplish the purposes and provisions of the Act.

Further, under Section 2(b) of the Illinois Groundwater Protection Act [415 ILCS 55/2(b)] the State established a groundwater protection policy:

It is furthe r recognized as consistent with this policy that the groundwater resources of the State be utilized for beneficial and legitimate purposes; that waste and degradation of the resources be prevented; and that the underground water resource be managed to allo w for maximum benefit of the people of the State of Illinois .

Moreover, under the Illinois Pollution Control Board's groundwater quality standards the following narrative non degradation standard applies at Section 620.301 :

No person shall cause, threa ten or allow the release of any contaminant to a resource groundwater such that:

Treatment or additional treatment is necessary to continue an existing use or to assure a potential use of such groundwater

An existing or potential use of such groundwater is precluded294

The Board's groundwater quality standards include this narrative non

- degradation standard for any contaminant. This narrative standard is consistent with Section 12(a) of the Act. One of the highest beneficial uses of groundwater is drinking water. Drinking water is obtained from potable water supply wells. The lowest common denominator of potable wells is a well serving an owner occupied single family dwelling (i.e. private drinking water system). There is no treatment applied at these syste ms. Rarely do these systems even add chlorine. Thus, there is a prohibition of threatening treatment or additional treatment beyond naturally occurring levels.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0287

- 7 

### Organization: Illinois Environmental Protection Agency (EPA)


### Commenter : John Kim Commenter Type: State Government

C omment Excerpt Text: Page 26, Table 3

- The Environmental Groups [from Document No. EPA

- HQ

- RCRA

- 2009

- 0640

- 6315], indicated that Illinois only requires groundwater monitoring within setback zones and recharge areas. This does not accurately portray what is done in Illinois. First, under 35 Ill. Adm. Code 309 it requires ponds to meet the Illinois Recommended Standards for Sewag e Works (35 Ill. Adm. Code 370). Under Subsection 370.930(b)(4), ponds/impoundments that are located in areas with potable water supply wells, porous geological settings, or fissured bedrock shall conduct groundwater monitoring and we apply the same at ind ustrial impoundments pursuant to the authority and mandates under Illinois law. Note: the recommend standards are required pursuant to the scope and applicability of Section 370.110(d), as follows:

d) The word "shall" is used where practice is sufficientl y standardized to warrant compliance with specific requirements, or where safeguarding the public health or protecting water quality justifies such definite action. Words such as "should", "recommended" or "preferred" indicate desirable procedures or metho ds with deviations subject to individual project consideration.

Shall is used for the groundwater monitoring requirements and we apply the same at industrial impoundments.

· Page 27, Table 5

- It indicates that only 2 states require quarterly groundwater monitoring and Illinois is not listed. Generally, Illinois requires sites to use an appropriate statistical model (e.g., confidence intervals and prediction limits) to determine naturally occurring levels and background concentrations. Thus, the model use d dictates frequency of samples collected in detection, assessment (i.e., compliance), versus corrective action monitoring. The statement above is generally incorrect.

· Page 28, Table 7

- This table indicates Illinois as one of the states that does not r equire a minimum of three down gradient and one upgradient well. It is true that Illinois requires three wells at a minimum to determine the direction of groundwater flow. However, as indicated above we require an appropriate statistical model to be used t o establish naturally occurring295

concentrations and background. The statistical model and the site specific hydrogeologic conditions will dictate how many upgradient versus downgradient wells will be needed. New

statistical research reflected in U.S. EPA's Unified Guidance provides that more upgradient monitoring wells may help to reduce the variability.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- CLT

- 0104

- 1 

### Organization: South Carolina Chapter of Sierra Club and League of Women Voters of South

Carolina


### Commenter : Peggy Brown Commenter Type: Advocacy Group

Comment Excerpt Text: The South Carolina chapter of Sierra and the League of Women Voters strongly recommend the EPA's consideration to regulate coal ash ponds under Subtitle C, Resource Conservation and Recovery Act, as it is the most protective choice on the table. South Carolina has 12 polluting outdated coal burning power plants that require at least one or more coal ash ponds. Leaching unregulated coal ash ponds will percolate into the ground, and without proper barriers eventually reach groundwater and contaminate the water with toxic

waste.

Right now we have three known ash ponds that are leaching coal waste in the groundwater. At this time, South Carolin a DHEC has no groundwater monitoring system in place. Due to budget restrictions, they have re

- evaluated the number of surface water monitoring sites and the frequency of testing. With recent evidence of groundwater contamination at the Wateree

Eastover si te, DHEC has a pending groundwater monitoring requirement to begin at some point. But in reality, if they're having trouble, or if they're having to cut back monitoring surface waters, where will the funding come from to begin a new groundwater monitoring program? South Carolina has many rural areas that rely on well water for drinking. State records indicate the potential for more protect

-- for more private wells to be contaminated may occur. Groundwater discharges from coal combustion waste dumps may loa d drinking water sources with contaminants that could increase nearby residents' cancer to as high as a staggering 1 in 50, so you report. Potential well water contamination of rural South Carolinians put the already economically challen ged even at higher health risks.

If the EPA will regulate coal ash under Subtitle C, RCRA, and the Rule for coal ash as hazardous waste under Federal law, this will require the industry to phase out porous sludge ponds, replace them with sturdy, leak

- proof facilities. The S ubtitle C will take the burden off the State agency that is already physically struggling and place the responsibility of cleanup and up fitting on the

utilities.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- DAL

- 0122

- 1


### Commenter : Whitney Pearson296

Commenter Type: Private Citizen

Comment Excerpt Text: At least two sites in Oklahoma show that currently those who burn coal are being irresponsible. The state regulatory agencies have failed to act, and we need strict, clear, enforceable regulations

of Subtitle C.

In Oklahoma, three agencies regulate the fly ash dump in Bokoshe, as you heard earlier. For almost two years, citizens who are impacted daily by the fly ash have called these agencies to fix the prob lems in Bokoshe, a problem that these agencies permitted to get out of hand. Many of us in Oklahoma have called our elected and appointed officials but only to find out

-- to ask them why they are not addressing the situation in Bokoshe. They tell us that they don't have the authority or they don't see any violations or that it's someone else's responsibility. I've been to the fly ash pit in Bokoshe, Oklahoma, and I've seen documentation of the violations; and the failure of state agencies is obvious. The failure of state agencies is also apparent in Oologah, Oklahoma, where, for 30 years, the coal

- fired power plant has disposed of its fly ash in an unlined pit. No one monitored the groundwater there until 2008, and the data shows the

contaminants have leac hed into the groundwater and there are heavy metals exceeding both federal and state maximum containment levels in the groundwater.

The operator of the plant has acknowledged that it has contaminated groundwater beneath its facility, but unfortunately th ey claim that there is no proof that contamination has spread offsite. Isn't it clear that groundwater contamination doesn't confine itself within property lines? Isn't it clear that if the operator were acting responsibly, it would determine the extent o f the pollution instead of denying its existence?

Response: The Agency acknowledges and appreciates the comment.

Section 7.1.2.3

- EPA requests info on whether state approaches may address GW monitoring and risks differently for CCR facilities located proximate to surface water bodies, e.g., rivers (35133)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 13 

### Organization: Nebraska Department of Environmental Quality (NDEQ)


### Commenter : David B. Haldeman Commenter Type: State Government

Comment Excerpt Text: Title 132, Chapter 4

- CRITERIA FOR FOSSIL FUEL COMBUSTION ASH DISPOSAL AREAS. Chapter 4 outlines specific requirements for CCR landfills. The following outlines requirements for the various Sections within Chapter 4.

Title 132, Chapter 4, Section 002. Loca tional Criteria. Description of current and projected use of water resources in the potential zone of influence of the site; distance to groundwater; potential interrelationship of local aquifers and surface waters; water quality; soil and bedrock depths; potential for leachate generation; ground water condition; surface water locations; land297

use and population density; distance to highways; distance to flood plains; inventory of wetlands; and requirements related to unstable areas. A permit will not be iss ued if this information indicates the disposal activity will threaten waters of the state.

Response: The Agency acknowledges and appreciates the comment



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 9 

### Organization 1 

### : Arizona Department of Environmental Qua lity (ADEQ)


### Commenter 1 : Benjamin H. Grumbles Commenter Type: State Government

Comment Excerpt Text: The APP program also requires the applicant to provide chemical, biological, and physical characterization of the discharge; establish setbacks from wells a nd surface water bodies; characterize the aquifers and geologic unit; and provide evidence of compliance with zoning regulations.

Response: The Agency acknowledges and appreciates the comment.

Section 7.4.1

- EPA solicits comment on states’ concerns that any federal regulation under RCRA Subtitle D has potential to cause disruption to states’ implementation of CCR regulatory programs under their own authorities, including more specifics on potential procedural difficulties for state programs, and any measures that EPA might adopt to try to mitigate these effects (35158, 35224)

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 01418

- 1 Organization 1 : Zephyr Environmental Corporation

Commenter 1 : Paul C. Moore Commenter Type: Other Company

Comment Excerpt Text:

I no ted that subsections 257.62 through 257.64 of Alternative 1: Co

- Proposal Under Authority of

Subtitle D

- PART 257 restrict the characterization, study, appraisal, investigation, analysis, geoscientific review and evaluation of fault areas, seismic impact z ones and unstable areas (geologic related hazards) to registered professional engineers. This restriction is in opposition to many state statues that define such work as the public practice of geology or geosciences. My home state, Texas, has such a statut e. The Texas Geoscience Practice Act also allows the making of recommendations regarding the geoscientific components of the engineered structure, work, or process by a licensed geoscientist. A Texas licensed professional engineer who normally performs ser vice or work that is both engineering and geoscience is not required to be a licensed geoscientist under this Act.

Title 30 of the Texas Administrative Code, Chapter 330 requires that studies of differential subsidence or faulting be conducted by either a licensed professional geoscientist qualified to298

evaluate conditions of differential subsidence or faulting or a licensed professional engineer experienced in geotechnical engineering.

I therefore strongly recommend that "or a licensed professional geol ogist/geoscientist" be added after "professional engineer" in proposed 257.62 through 257.64 to bring the proposed regulation concurrence with state statutes and regulations.

Response: The commenter is referred to the Unit V preamble discussion. This s ection of the preamble discusses the Agency’s rationale behind the regulatory change from “independent registered professional engineer or hydrologist” to “qualified professional engineer” as the principle individual required to certify compliance with sel ected technical provisions of the rule.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 1 Organization 1 : Kansas Department of Health and Environment

Commenter 1 : William L. Bider Commenter Type: State Government

Comment Excerpt Text: As proposed, this regulation will significantly impact the State of Kansas in numerous ways regardless of whether EPA decides to regulate disposal under Subtitle C or Subtitle D. Changes in either proposed option are needed to avoid unnecessary adverse impacts to state regu latory programs, private businesses, and human health and the environment. In general, this proposal, including the Subtitle D approach, applies a regulatory scheme which does not include the appropriate level of flexibility to consider and allow what is n ecessary and appropriate in all geologic and climatic settings.

Kansas would also like to emphasize that states are best equipped to make beneficial use determinations for CCR, whether the uses are in construction or agricultural applications. EPA's

rule should include provisions to delegate this responsibility to states along with the authority to issue permits for disposal areas (both landfills and surface impoundments) under Subtitle D.

Kansas recognizes that all states may not have similar regulatory programs that provide these safeguards; however, EPA should not promulgate new CCR regulations that would adversely impact proven state regulatory programs such as in Kansas. Any federal regulations should establish minimum requirements to be applied to fa cilities in states where no approvable state regulatory program exists, but they should allow states to demonstrate that their regulatory programs are adequately protective.

While a Subtitle D regulatory approach is preferred by the State of Kansas, the p roposed regulations under this approach also should be amended. The proposed regulations do not provide states with flexibility to consider alternative liners, leachate management methods, or final covers considering variable local conditions with respect to soil types, depth to groundwater, distance from surface water, and annual precipitation. The prescriptive one

- size

fits

- all conservative approach is unnecessary in areas where local conditions provide an adequate and preferred degree of natural protecti on.299

In summary, Kansas believes the best approach to regulating CCR nationally is to develop regulations under Subtitle D, including a required permitting program that can be administered by states. The permitting program should allow states flexibility t o consider local conditions as they relate to the design of liners, leachate management, and final covers. The beneficial use aspects to this rule should also be delegated to approved state agencies.

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

- 2009

- 0640

- 04003

- 4 Organization: Environmental Council of the States (ECOS)

Commenter: Lia Parisien on behalf of John W. Mitchell Commenter Type: State Government

Comment Excerpt Text: Regardless of whether the Subtitle C or Subtitle D approach is adopted by EPA, there will be significant effects on state wa ste management programs. Should EPA propose the more logical Subtitle D approach, state programs need to assess their solid waste program capability to oversee the resulting work.

Response: The Agency acknowledges and appreciates the comment. The comme nter is referred to Unit 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

- 2009

- 0640

- 06128

- 13 Organization: Owensboro Municipal Utilities

Commenter: Kevin D. Frizzell Commenter Type: Electric Utility Company

Comment Excerpt Text: While EPA's Subtitle D option would impose substantial costs on utility operations, it would not discourage CCR beneficial use and is nowhere near as disruptive to state waste management programs as is the S ubtitle C hazardous waste option.

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

- 2009

- 0640

- 06198

- 3 Organization: Ameren Corporation

Commenter: Paul R. Pike300

Commenter Type: Electric Utility Company

Comment Excerpt Text: While Ameren supports the Subtitle D Prime option (with the adjustments discussed below). a major shortcoming of this approach, as well as with the other Subtitle D alternatives, is the lack of any mechanism for qualified state programs to step in and dire ctly administer the Subtitle D CCR regulations where the state programs meet or exceed the federal controls. One of the Agency's primary reasons for concluding in its 2000 Regulatory Determination that CCRs do not warrant Subtitle C regulation was Congress 's admonition in the Bevill Amendment against duplication of efforts by other federal and state agencies. Unfortunately, EPA has failed to adhere to this congressional directive in the proposed Subtitle D regulatory alternatives, including the Subtitle D P rime option.

EPA clearly must have recognized the nature of state programs in their preamble discussion on a "state first concept under a Subtitle C program. EPA asked for comments on whether certain state programs can be evaluated and maintained rather than imposing Subtitle C requirements on CCRs (75 FR 35220

- 35221). This has been called the "state first" approach, whereby EPA would delay implementation of a federal rule for a specific period of time to enable states to adopt

enforceable Subtitle D rule s that are protective of human health and environment and approved by EPA. Since EPA had considered this concept for Subtitle C it would make even more sense to implement this approach under a Subtitle D program.

EPA should be well aware that there are m any mature state CCR regulatory programs with permitting, liner, and groundwater monitoring controls similar to those proposed in the Subtitle D options. in fact, EPA concluded in its 2000 Regulatory Determination that state CCR controls

have "substantiall y improved over the last 15 years," and that a "high percentage of states had authority to impose protective management standards on surface impoundments and land1i11s, especially for groundwater monitoring, liners, and leachate collection .... "

Under a dual regulatory approach, for example, an owner/operator of a CCR disposal facility

could be found to be in non

- compliance with a groundwater monitoring requirement that is

contained in both the Subtitle D self

- implementing rule and in an independently ad ministered state regulatory program. In these circumstances, the owner/operator could be subject to a citizen suit enforcement action in federal court for alleged violation of the self

- implementing Subtitle D rule, and to a wholly separate enforcement acti on in state court for violation of the parallel state requirement. This makes no sense; apart from the waste of federal and state judicial resources, it could result in inconsistent federal and state court determinations with respect to an identical regula tory requirement. It also could result in duplicative federal and state penalties for essentially the same regulatory infraction.

It is important that any final Subtitle D rules for CCRs include a mechanism for qualified state programs to administer the rules in lieu of the self

- implementing approach set forth in the proposal. EPA should be able to develop a process for evaluating state CCR controls and determining whether state controls are no less stringent than the final Subtitle D controls (much

like EPA does now in the case of municipal solid waste landfills under 40 C.F.R. Part 258). In those states that have qualifying controls for CCRs, EPA would allow the states to administer the301

controls to avoid the duplication of regulatory programs, with appro priate EPA backup. In this way, many of the self

- implementing procedures in the Subtitle D approach could be eliminated as there would be a qualified state regulatory body with responsibility for ensuring compliance with the applicable requirements. This a pproach would allow for the requisite degree of state involvement in administration of the CCR rules that EPA concluded was appropriate in its Report to Congress and final Regulatory Determinations, and avoid duplication of regulatory

controls as directed by the Bevill Amendment.

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 la ndfills 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

- 2009

- 0640

- 06203

- 10 Organization : Arizona Public Service Company (APS)

Commenter: Scott Davis Commenter Type: Electric Utility Company

Comment Excerpt Text: While APS supports the Subtitle D Prime option, a major shortcoming of this approach, as well

as with the other Subtit le D alternatives, is the lack of any mechanism for qualified state programs to step in and directly administer the Subtitle D CCR regulations, where the state programs meet or exceed the federal controls. Such an approach makes no practical sense, and it would result in parallel and redundant regulatory programs for the same materials. Many states have regulatory programs in place that meet or exceed the Subtitle D standards in EPA's proposal

and for this reason APS believes the D

- Prime option should allow qualified state programs to administer the federal program.

For example, the Arizona Department of Environmental Quality ("ADEQ") administers the Aquifer Protection Permit program ("APP Program"). This is a comprehensive program that protects the state's groundwater resources by a combination of discharge reduction through use of Best Available Demonstrated Control Technology ("BADCT") and compliance with Aquifer Water Quality Standards ("AWQS") at the applicable Point of Compliance ("POC").

A permitee i s required to "...ensure the greatest degree of discharge reduction achievable through application of the best available demonstrated control technology, processes, operating methods or other alternatives, including, where practicable, a technology permitt ing no discharge of pollutants." Arizona Revised Statutes § 49243. B.1. Pollutants discharged from the permitted facility may not exceed an AWQS at the applicable POC. The POC is located down gradient of the site at the edge of the Pollution Management Are a ("PMA"). There are both numeric and narrative standards that apply and all aquifers are protected for drinking water use and the AWQSs are drinking water standards. In addition, if the ambient water quality of the aquifer exceeds an AWQS, no pollutant di scharged may further degrade the water quality at the applicable POC.302

The program is broad in scope and detailed in its requirements. All facilities that discharge are required to obtain an Aquifer Protection Permit (APP). The definition of discharge is " ...the addition of a pollutant from a facility either directly to an aquifer or to the land surface or the vadose zone in such a manner that there is a reasonable probability that the pollutant will reach an aquifer." Arizona Revised Statutes § 49

- 201.12. In addition to this general requirement, many facilities are categorically defined as discharging facilities. These include surface impoundments and solid waste landfills. Arizona Revised Statutes § 49

- 241 .B 1. An aquifer is defined as "a geologic unit th at contains sufficient saturated permeable material to yield usable quantities of water to a well or spring." Arizona Revised Statutes § 49

- 201.2. The APP regulations further define the term "usable quantities" to mean "...five gallons of water per day." A rizona

Administrative Code R18

- 11

- 501.4.

The major components/requirements of an APP are listed below:

• BADC • Compliance with AWQSs at the POC • Technical Capability • Financial Capability • Zoning

The aquifer protection permit program is designed to p rotect groundwater quality using a two tiered approach. The first level of protection is discharge reduction through the use of BADCT. The goal of the BADCT requirement is to prevent to the greatest extent possible the discharge of pollutants to the aquife r. In fact as noted above, the BADCT design must, where practicable, include alternative technologies permitting no discharge of pollutants. Permits include inspection and monitoring requirements to insure that the facility BADCT performs as designed.

The second level of defense is the requirement to meet AWQSs at the applicable POC. Arizona Revised Statutes § 49

- 243. The POC is located in the shallow most aquifer at the downgradient edge of the PMA. For example, the PMA for a surface impoundment is the ou ter edge of the impoundment. The POC must also be located to ensure protection of all current and reasonably foreseeable future uses of the aquifer. Arizona Revised Statutes § 49

- 244.

The permittee must also show that they have the technical and financial capability to construct, operate and eventually close the facility. Arizona Administrative Code R18

- 9

- A203. Design plans and most required technical reports require submittal by a registered engineer or geologist. The permittee must also submit financial information on the costs to construct and operate, and the cost associated with post closure and closure of the facility. The permit would not be issued without presenting an approved method of financial assurance. This showing can take the form

of a suret y bond, certificate of deposit, trust fund, letter of credit, insurance policy, cash deposit, or financial guarantees. ADEQ can withdraw approval to operate if there is evidence that the permittee would lose the capability to meet the requirements for fina ncial assurance.

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 is303

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

- 2009

- 0640

- 06203

- 12 Organization: Arizona Public Service Company (APS)

Commenter: Scott Davis Commenter Type: Electric Utility Company

Comment Excerpt Text: Working in tandem, the ADEQ Aquifer Protection Permit Program and the ADWR Dam Safety Program meet or exceed the Subti tle D standards in EPA's proposal, and it makes no practical sense not to allow states with qualified programs, in this case Arizona, to administer the federal Subtitle D program. To do otherwise would result in parallel and redundant regulatory programs

f or the same materials.

Under a dual regulatory approach, for example, an APS could be found to be in non

- compliance with a groundwater monitoring requirement that is contained in both the Subtitle D self

implementing rule and in ADEQ's APP Program. In suc h a circumstance, APS could potentially be subject to a citizen suit enforcement action in federal court for alleged violation of the self

implementing Subtitle D rule, and to a wholly separate enforcement action in state court for violation of the paralle l ADEQ requirement. This makes no sense; apart from the waste of federal and state judicial resources, it could result in inconsistent federal and state court determinations with respect to an identical regulatory requirement. It also could result in dupli cative federal and state penalties for essentially the same regulatory infraction.

It is essential that any final Subtitle D rules for CCRs include a mechanism for qualified state programs to administer the rules in lieu of the self

- implementing approach set forth in the proposal. As discussed in comments submitted by USWAG, EPA could readily develop a process for evaluating state CCR controls and determining whether state controls are no less stringent than the final Subtitle D controls (much like EPA doe s now in the case of municipal solid waste landfills under 40 C.F.R. Part 258). In those states that have qualifying controls for CCRs, EPA would allow the states to administer the controls to avoid the duplication of regulatory programs, with appropriate EPA backup. In this way, many of the self

- implementing procedures in the Subtitle D approach could be eliminated as there would be a qualified state regulatory body with responsibility for ensuring compliance with the applicable requirements. This approach would allow for the requisite degree of state involvement in administration of the CCR rules that EPA concluded was appropriate in its Report to Congress and final Regulatory Determinations, and avoid duplication of regulatory controls.

Response: The Ag ency 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 comme nter 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.304

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06254

- 23 Organization: Sunflower Electric Power Corp oration

Commenter: Paul E. Reynolds Commenter Type: Electric Utility Company

Comment Excerpt Text: While a Subtitle D regulatory approach is the preferred option from Sunflower Electric’s perspective, there is a need for some “tweaking”. The proposed regulations do not provide sufficient flexibility to consider alternative liners, leachate management me thods, or final covers to accommodate variables in local conditions such as soil types, depth to groundwater, distance from surface water, and annual precipitation. The prescriptive one

- size

- fits

- all approach unnecessarily ties the hands of state regulator s and prevents them from tailoring permits to match the landfill design requirements to actual physical circumstances. For example, many aspects of the design imposed in the proposed regulation may be unnecessary in areas where local conditions provide an adequate and preferred degree of natural protection.

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: EP A

- HQ

- RCRA

- 2009

- 0640

- 06260

- 103 Organization: Kentucky Department for Environmental Protection

Commenter: R. Bruce Scott Commenter Type: State Government

Comment Excerpt Text: The Commonwealth of Kentucky favors the Subtitle D approach as being the less dis ruptive of the two major proposals. However, we recommend the following additions:

- Elimination of Professional Engineer and Professional Geologist certifications in the absence of prior state agency review. We suggest instead the permit application revie w program envisioned by 40 CFR 239 for state MSW landfill programs.

- Detailed Subtitle D regulations that states would incorporate with lining requirements and enhanced monitoring including variance provisions similar to those found at 40 CFR 258 for

MSW landfills;

- Financial Assurance for closure, post

- closure, groundwater corrective action and non

- utility dike integrity under Subtitle D instead of the proposed overly broad CERCLA;

- Funding based on the anticipated permitting, closure and inspection wor kload for states to implement these rules. Kentucky estimates the need for six to twelve additional person

- years to implement these provisions.305

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

- 2009

- 0640

- 06260

- 20 Organization: Kentucky Department for Environmental Protection

Commenter: R. Bruce Scott Commenter Type: State Government

Comment Excerpt Text: Because of the process for promulgating regulations in Kentucky (Please refer to http://www.lrc.ky.gov/KRS/013A00/CHAPTER.HTM for the Kentucky regulation development process), it will require a longer period for developing and incorporating r egulations. This is particularly true if EPA does not promulgate national solid waste regulations for states to implement that comprehensively address disposal, the permitting process, public notice, state delegation and funding. Kentucky requests five yea rs to develop regulations and issue the permits and an additional 5 years from the effective date of the Kentucky regulations for a total of 10 years from the effective date of the national rule for liners and groundwater monitoring for

landfills and surfa ce impoundments. Since independent self

- certification by professionals would be a problem, the Commonwealth prefers a full regulatory program.

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 and Unit VIII for a discussion on effective dates and implementation timeframes.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 22 Organization: Kentucky Department for Environmental Protection

Commenter: R. Bruce Scott Commenter Type: State Government

Comment Excerpt Text: Even under Subtitle D, the department would be at a severe timing and funding disadvantage. In these challenging economic times, state general funding, which is th e cornerstone of solid waste funding, adsorbs most of the agency cuts and is well below previous levels. EPA is proposing a

self

- certification process by independent professional engineers and geologists. This signals to some legislators that our agency sh ould not be involved in the process, thus undercutting our legitimacy for agency funding requests during the biennium budget and fee process and affects our ability to provide oversight, which we feel is essential. Kentucky requests that the agency delay t he effective date five years, require state adoption of national regulations and provide funding. Since this requires the EPA to request a revision to RCRA from Congress, we urge the306

agency to do so.

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 th e 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

- 2009

- 0640

- 06275

- 26 Organization: Lansing Board of Water and Light (BWL) and Michigan State University (MSU)

Commenter: Jeffrey L. Woolstrum Commenter Type: Electric Utility Company

Comment Excerpt Text: To make matters worse, the proposed Subtitle D CCR landfill requirements are different from and, in some cases conflict with, the requirements imposed on existing MSW landfills regulated

under EPA

- approved state Subtitle D programs. Thus, MSW landfills that also receive CCRs would be subject to competing and overlapping state and federal requirements, driving up the cost of all waste disposal. Fi nally, as discussed in the next section of these Comments, the burdens imposed by the Subtitle C option far outweigh any benefits of that 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 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

- 2009

- 0640

- 06280

- 16 Organization: South Carolina Department of Health and Environmental Control

Commenter: Daphne Neel Commenter Type: State Government

Co mment Excerpt Text: South Carolina implements and enforces comprehensive solid waste management and water programs that adequately address the management, disposal, and reuse of CCR. Most of the technical requirements addressed by the proposed Subtitle D r egulation are already addressed by state regulation and, in some instances, the state's requirements are more stringent than those proposed by EPA. If EPA proceeds with regulating CCR under Subtitle D, the Department strongly recommends that provisions be added whereby EPA has a process that acknowledges states with existing solid waste regulatory programs that are equivalent to the minimum national criteria in the federal regulation, and authorizes those states to implement and enforce the federal regulati on.

Making the proposed Subtitle D regulation self

- implementing, and placing the state in the role of a citizen enforcer under citizen suit provisions of RCRA 7002 is an untenable position for those states that already have a robust solid waste management program. By EPA's own statement,307

under the proposed Subtitle D regulation, "facilities can comply without interaction with a regulatory agency." Yet, these same facilities must already interact with the Department on permit applications, consistency revie ws, operating and design requirements, groundwater monitoring, closure and post

- closure requirements, and financial assurance. To attempt to parse through the federal requirements and treat them separately from the state's program is

unworkable for industr y as well as the Department. There will be state requirements that are in conflict with, in addition to, or separate from the federal requirements. The Department cannot be placed in a position whereby it seeks to enforce compliance with its state requirem ents through the administrative enforcement process while at the same time proceeding to enforce similar or overlapping requirements through the RCRA 7002 citizen suit provision.

In summary, the Department believes that those states like South Carolina th at have existing statutes and regulation in place to regulate CCR should be allowed to continue to do so, and that federal regulation would create unnecessary duplication, confusion, and barriers that would not result in any greater environmental or public health protection. However, if EPA chooses to move forward with a regulation, it should do so under Subtitle D with provisions to allow states to administer their own programs that are equivalent or more stringent than the federal regulation.

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

- 2009

- 0640

- 06280

- 18 Organization: South Carolina Departme nt of Health and Environmental Control

Commenter: Daphne Neel Commenter Type: State Government

Comment Excerpt Text: If EPA proceeds with a regulation under Subtitle D, the Department strongly recommends that it include a process whereby EPA acknowledges those states with existing solid waste regulatory programs that are equivalent to the minimum national criteria in the regulation, and authorizes those states to implement and enforce the federal regulation. Provisions should also be added that clearly sta te that the federal regulation is not a substitute for existing state regulation of CCR, and that states may be more stringent than the federal requirements. This clarification could be placed in Section 257.50 of the proposed regulation, thereby strengthe ning the language concerning the applicability of other regulations.

However, if EPA moves forward with a final rule, the Department believes that the preferred approach should be regulation under Subtitle D, provided that changes are made to the rule tha t acknowledge and allow flexibility in states like South Carolina that already have comprehensive solid waste management and water programs in place.308

Response: The Agency acknowledges and appreciates the comment. The commenter is referred

to Units IV an d 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 sta tes to incorporate the CCR rules into state solid waste management plans. The preamble to the rule does state that these federal regulations represent a national minimum and states may be more stringent than the federal regulations.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 3 Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company

Commenter: Chris M. Hobson Commenter Type: Electric Utility Company

Comment Excerpt Text: Southern Company’s service territory utilities operate in four different states. The regulatory programs of those states (as discussed in Part VI below) represent a microcosm of the variety of regulatory app roaches around the nation. Some states have extensive experience regulating CCBs in a manner similar to solid waste, while others impose few solid waste restrictions. Some states provide regulatory oversight of beneficial uses, while others do not.

EPA r efers to states that have not developed RCRA

- type regulations for CCBs as a basis to question the states’ ability to implement a CCB program under Subtitle D. However, reference to the status quo is not predictive in the context of CCBs for a simple and ob vious reason: EPA has not promulgated regulatory standards for CCBs, and under the Bevill amendment, states are not required to take action until EPA provides regulatory direction. [Footnote 18: See 42 U.S.C. 6921(b)(3).] The question for today is what the states will do if and when EPA adopts Subtitle D standards. The only meaningful way to assess this question is to review the response of the states to Subtitle D standards in the past. If EPA has issued Subtitle D guidance for solid waste streams

for whic h EPA lacked direct enforcement authority, and states and industry have failed to respond in a manner EPA would deem appropriate, that set of facts might inform deliberations on the question of how the states would respond to Subtitle D standards for CCBs. [Footnote 19: Given the magnitude of CCB disposal and management and its association with a critically important public utility, i.e., the delivery of electric energy, it is also possible that any given state is more likely to take direct responsibility f or regulating CCB disposal under a Subtitle D standard compared to other forms of solid waste. The point is that EPA has not developed sufficient information in the record to assess the question in any meaningful way.] However,

EPA has made no effort to ad dress that question. Rather, EPA assesses state performance in an area where EPA itself has had authority to take regulatory action for more than thirty years and has declined to do so. The present status of state regulation of CCBs has more to do with EPA ’s own regulatory treatment of CCBs than any deficiency of the state agencies.

EPA should acknowledge the reality that CCBs are a high volume, low toxicity solid waste. The TVA incident had nothing to do with the characteristics of coal ash as such, whic h is a key question in deciding between Subtitles C and D. Rather, the Kingston incident resulted from the309

mismanagement of a large volume of waste. There is absolutely nothing about Subtitle C that makes it better suited to addressing that kind of issue t han Subtitle D; again, the only significant

difference is the role of the states.

EPA may not be pleased with the respective regulatory roles of EPA and the states under RCRA Subtitle D. Nevertheless, how and to what extent EPA is involved with the regul ation of high volume solid waste has already been determined by Congress. It is neither appropriate nor legal for EPA to force CCBs into a Subtitle C program simply because EPA has a preference for the

administrative and enforcement tools of Subtitle C. EP A should not use RCRA Subtitle C as a way to commandeer enforcement authority from the states. Congress has decided that the states are capable of implementing and enforcing solid waste programs. In the absence of a

determination that states will not be ca pable of responding to Subtitle D guidance, based on evidence and an explanation of the agency’s rationale, it is not for EPA to second

- guess the decision of Congress with respect to EPA’s regulatory role.

EPA has recognized the importance of site

- specif ic and region

- specific factors when dealing with CCBs, and the state agencies are better prepared than EPA to address those issues and be the principal regulators of CCBs. The state agencies have the greatest experience and expertise with respect to the si te

- and region

- specific factors and controls that are best suited to address

CCBs.

Moreover, as EPA acknowledges, states and the regulated community have made significant advances in CCB management in recent years. [Footnote 20: 75 Fed. Reg. at 35150.] E PA concluded in its 2000 CCB Regulatory Determination that “with the exception of relatively few states, the regulatory infrastructure is generally in place at the state level to ensure adequate management of these wastes.” [Footnote 21: 65 Fed. Reg. at 32 217.] EPA and the Department of Energy (“DOE”) further found in their joint 2007 Report of state CCB controls that “[t]he data and analyses documented in this report provide new information that appears to show improved management of CC[B]s in both landfil ls and surface impoundments.” [Footnote 22: DEBORAH
ELCOCK & NANCY L. RANEK, COAL COMBUSTION WASTE MANAGEMENT AT LANDFILLS AND SURFACE IMPOUNDMENTS, 1994

- 2004 S

- 11 (2006), http://www.fossil.energy.gov/programs/powersystems/pollutioncontrols/coal_waste_repo rt.pdf [hereinafter “DOE/EPA REPORT”]. ] In September 2008, the Environmental Council of the States (“ECOS”) issued a resolution that states already have regulations in place that apply to CCBs and that a federal regulation is not necessary. The 2008 ECOS resolution was revised in March 2010 and calls upon EPA to conclude that federal CCB regulations would be duplicative of most state programs, are unnecessary, and should not be adopted, but if adopted must be developed under RCRA Subtitle D rather than RC RA Subtitle C. [Footnote 23: See Environmental Council of the States [ECOS], The Regulation of Coal Combustion Products,

Revised Res. 08

- 14 (Mar. 23, 2010), available at http://www.ecos.org/files/4018_file_Resolution_08_14_2010_version.doc.] ECOS

—

[a]gre es with U.S. EPA’s finding in the 2005 study . . . that “the regulatory infrastructure is generally in place at the state level to ensure adequate management of these wastes” and believes that states should continue to be the principal regulatory authority . . . as they are best suited to develop and implement CC[B] regulatory programs. [Footnote 24: Id.]310

Based on its findings in the 2000 final Regulatory Determination and the supplemental 2007 joint EPA/DOJ report of state CCB programs, EPA is well aware that there are many mature state CCB regulatory programs with permitting, liner, and groundwater monitoring controls similar to those proposed in the Subtitle D options. In fact, EPA concluded in its 2000 final Regulatory Determination that a “high percen tage of states had authority to impose protective management standards on surface impoundments and landfills, especially for groundwater monitoring, liners, and leachate collection . . . .” [Footnote 25: 65 Fed. Reg. at 32229.]

In any event, a program fo r the management of CCBs would require states to apply essentially the same methods that are currently in place for existing programs regulating other waste streams under Subtitle C and D. States already have the expertise needed to oversee construction an d operation of landfills and impoundments, groundwater monitoring, closure, and all the other elements that may apply in any new CCB program. [Footnote 26: For additional discussion on this point, see Part VI.A below. ] The regulatory issues associated wit h CCB disposal are essentially of the same nature as those that the states already address through existing Subtitle C and Subtitle D programs.

Under EPA’s Subtitle D proposal, state controls would be administered in addition to and

without coordination with nearly identical, self

- implementing federal controls. Such duplication is both unnecessary and unduly burdensome. Therefore, when crafting a Subtitle D regulation, EPA should make state flexibility a priority. EPA should enable states to tailor standa rds based on the type of ash generated, the characteristics of that ash, the land disposal methods used, the type of geology in the area, and the site’s groundwater conditions

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 discuss ion on how EPA expects states to incorporate the CCR rules into state solid waste management plans.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 88 Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Geor gia Power Company, Gulf Power Company, and Mississippi Power Company

Commenter: Chris M. Hobson Commenter Type: Electric Utility Company

Comment Excerpt Text: As set forth above, Florida’s approved Subtitle D programs for MSWLFs and groundwater protection program effectively address CCB disposal in Florida.

However, EPA’s Subtitle D proposal fails to include important components, namely a mechanism for approval of effective state programs, like Florida’s, and the necessary state

specific flexibility for alternatives to the minimum criteria proposed by EPA. A prime example is Florida’s double HDPE geomembrane liner system, provided for in Florida’s Solid Waste Management Rule, which has been demonstrated to be an effective alternative to composite liner311

sy stems much like the one EPA has proposed in its rule co

- proposals.

While preferable to regulation under Subtitle C, a Subtitle D Prime approach that is inflexible, rigid, and prescriptive and that fails to recognize state

- specific natural environments an d expertise is no panacea.

Response: The Agency acknowledges and appreciates the comment. The commenter is 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

- 20 09

- 0640

- 06356

- 6 Organization: U.S. Chamber of Commerce

Commenter: William L. Kovacs

Comment Excerpt Text: The U.S. Chamber opposes EPA’s proposal to create new RCRA Subtitle D requirements for CCRs. The record demonstrates federal coal ash regulations wil l duplicate and encroach on existing State regulatory programs. 75 Fed. Reg. at 35144 (citation omitted). Also, if Subtitle D should be modified to create a specialized CCR regulatory regime, then legislative action by Congress is the only appropriate mean s for doing so. EPA lacks the statutory authority to create one RCRA Subtitle D regime for CCRs and one for all other non

- hazardous wastes, especially as EPA cites no evidence CCRs and CCR disposal facilities pose qualitatively or quantitatively

different risks than any other Subtitle D waste disposal facilities. See 75 Fed. Reg. at 35193

- 35213

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 f or 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 man agement plans.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06409

- 9 Organization: State of Alaska

Commenter: Kristin J. Ryan Commenter Type: State Government

Comment Excerpt Text: EPA has estimated that if the RCRA Subtitle D proposal is adopted, only 52% of the states would comply, whereas adoption of a RCRA Subtitle C proposal would assure 100% state participation. There is no evidence to support such estimation, and, in any event, the regulatory program should be based on valid scientific data and field ex perience, rather than guesswork. The proposed Subtitle D regulations also have the potential to create a dual regulatory scheme in which CCR landfills will be subject to both Alaska's Subtitle D permitting program and the self

implementing regulations prop osed as 40 CFR 257, Subpart D. In fact, EPA admits that facilities will need to comply with the proposed regulations independently of state regulations that differ from the proposed regulations. This will not only create a confusing regulatory situation fo r312

landfill operators but, because different standards could apply under the different regulatory programs, it is possible a CCR landfill could be approved under one set of regulations but not under the other. The ADEC does not find anything in the proposed regulations that provides guidance for how to deal with conflicting requirements between state and federal requirements.

For the EPA, the main deficiency in regulating CCRs under RCRA Subtitle D is the agency's lack of authority to require permits for la ndfills that don't receive hazardous wastes. This thinking ignores the fact that 86% of states in which CCRs are generated already require permits for CCR landfills. [Footnote 7: Letter from ASTSWMO t o Matt Hale, EPA, dated April 1 , 2009.

Available at http://astswmo.org/files/publications/Positionpapers/ASTSWMO

- CCB

- letter

attachments

- v2.pdf

]

Response: The Agency acknowledges and appreciates the com ment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX of the p reamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid waste management plans.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06411

- 11 Organization: Alabama Department of Environmental Management (ADEM)

Commenter: Geral d Hardy Commenter Type: State Government

Comment Excerpt Text: It is our firm contention that Alabama's solid waste program is more than sufficient to adequately implement the regulatory requirements in the proposed Subtitle D option. While there may be

r esource issues that come to bear related to the potential increase in workload due to this proposed option, the same concerns would exist with the Subtitle C option. In fact, as stated earlier, the demands for State implementation of the Subtitle C option would be even more taxing on our existing resources.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06415

- 13 Organization: The Virginia Coal Association, Inc. (VCA)

Commenter: John T. Heard Commenter Type: Trade Association

Comment Excerpt Text: • Based on information the VCA has received from DEQ concerning the projected costs to the state of EPA's proposed alternative approaches, both approaches will impact Virginia's strained budget. The additional costs resulting from either approach will in all likelihood be passed along to permit holders (i.e. power producers and the coal industry) in the form of higher fees. Virginia predicts that under the Subtitle C proposal an additional $350,000 pe r year will be needed to implement the program. Under the Subtitle D proposal, Virginia predicts an additional $76,000 per year will be needed. These costs would be for a program that is unnecessary in Virginia

-313

Virginia's current comprehensive coal combu stion waste regulatory program is already protective

of human health and the environment.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit V of the preamble discussion for the Agency’s rationale for promul gating 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 p lans.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 71 Organization: Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC)

Commenter: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Comment Excerpt Text : Section XI on p. 35211 of the preamble, entitled Impact of Sub D alternative on State programs, states that the proposed rule has no effect on state rules. It also states that CCR landfill owners would have to comply with all elements of the self

- impleme nting proposed RCRA Sub D CCR rules, more or less regardless of the content of State rules. We believe that it is essential that the proposed rule recognize that State rules will apply to CCR landfills and to include a provision that States can approve CCR landfill with features that differ from the proposed rule requirements. As noted in several sections above, there are aspects of the proposed rule that may be less stringent than State rules or which address variations in engineering design or materials, climatic factors, or geologic situations that the proposed rule does not address or is in contradiction with modern technical or geotechnical practice. It is essential that State rules and review actions be allowed to modify requirements in the proposed RC RA Sub D self

implementing rule, to address technical judgment and to incorporate technical advances that the rule does not anticipate.

Section XIV, p. 35224 of the preamble, subheading “State Programs”, requests feedback on current State regulatory approaches to CCR and any potential for the proposed federal regulations to cause disruption of State implementation of CCR regulation under State authority. Previous comments have pointed aspects of the proposed rules that have potential to disrupt implem entation of Wisconsin rules and authority, including provisions for zone of saturation liner designs, gradient control system designs, and use of non

- standard construction material such as geosynthetic clay liners. Subsequent sections also point out the ma jor disruption that will occur with Wisconsin’s beneficial use program. Rule writing to implement the Subtitle C option will in and of itself cause major, unnecessary workload and disruption due to diversion of staff

and resources to hazardous waste rule r evisions.

Wisconsin solid waste (NR 500 series) rules are already nearly fully compliant with the technical details in the proposed rules for landfills. Any differences can be dealt with in short order by use of our codified plan review and approval proce ss. Our solid waste disposal rules do not address surface impoundments, but any facility that might be considered a surface impoundment can be addressed by our general authority for processing facility rules. Feedback from the Wisconsin utility industry in dicates that any facilities that might be considered surface impoundments will314

be taken out of service in the near future.

Based on the technical details in the proposed rules, we could incorporate any necessary changes into our existing rules, including any language regarding surface impoundments. However, we anticipate that the level of effort to modify our hazardous waste rules (NR 600 series) would entail considerably more workload than that needed to modify our solid waste rules (NR 500 series).

We anticipate that staff training and plan review workload with a RCRA Subtitle D alternative can be readily integrated into our existing staffing and management. Existing staff would need considerably more training to implement the procedural elements and s pecific details of the RCRA Subtitle C proposed rules. The WDNR Waste & Materials Management program has an experienced set of 18 engineers and hydrogeologists, as well as several plan review experts and supervisors, to regulate 70 existing active landfill s, including 11 CCR landfills. We do not have enough hazardous waste engineers and hydrogeologists to take on the CCR landfill work, so we would expect that solid waste staff would have to continue to be involved in such activities.

WDNR staff have the t echnical capabilities and experience to effectively regulate CCR landfill under State rules. The technical requirements of either the RCRA Subtitle C or Subtitle D approaches are well within their capability. However, the additional procedural requirements in

the RCRA Subtitle C rule alternative would consume additional time and resources that are currently already stretched.

EPA could mitigate difficulties imposed by the proposed rules by seeking and obtaining authority to use an authorization process su ch as was used for the Part 258 MSW landfill rules, or to develop rules that utilize a coordinated approval process. Either approach would be able to take advantage of resources that exist at the State agencies, including experienced staff, knowledge of th e existing utility CCR disposal facilities and CCR generating facilities, an established review and permitting process, experience with facility design, familiarity with earthwork construction and materials commonly used in landfills, unique or modern cons truction materials such as geo synthetic clay liners, and local geology and hydrogeology.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit IX of the preamble for a discussion on how EPA expects states to i ncorporate the CCR rules into state solid waste management plans.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06446

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

Commenter: Michalene Reilly Commenter Type: Electric Utility Company

Comment Excerpt Text: The Subtitle D requirements specified in the rule are the same as for municipal solid waste. It is difficult to fathom that EPA would consider the hazards of CCRs to be anything comparable to municipal waste. Homeowners are allowed (t hough discouraged) from throwing anything they315

wish to discard into the waste that goes to these landfills. That list includes listed and characteristic hazardous wastes of all kinds including pesticides, mercury thermometers, pharmaceuticals, and househol d chemicals. It also is impossible to prevent liquids from being disposed of into the municipal landfill. Yet, EPA contends that these disposal units are safely regulated.

In the case of a CCR facility, the wastes are homogeneous, state inspectors in Ind iana visit our landfill regularly, and permit provisions require facilities to operate in a safe manner. Hoosier Energy is located in the State of Indiana which currently has a very vibrant and effective program for managing CCRs. Landfill design is based the risks posed by the level of constituents in the ash. In fact, a Type I facility has the same requirements as a municipal solid waste landfill. Landfill operators are required to certified and then receive annual training. Regular inspections

include ad ditional solid waste personnel (such as the permit manager, a representative from IDEMs engineering or geology section) during times of permitting or if there is an issue with the facility. Hoosier Energy supports state regulation of facilities by the indi vidual states. If a state refuses to regulate, EPA can step in. However, adequate programs that are doing the job should not be usurped by federal regulation. It should be noted that much of the evidence submitted against state regulation sites damage case s. Many of those cases come from facilities that were in place long before RCRA was even a law. In Indiana, many facilities were in place before the Department of Environmental Management was created. To say that RCRA standards are required based on the st andards of what was done in the 1980’s vs. how State’s have regulated CCRs in the last 5 years, appears to be arbitrary and lacking any kind of logic

Response: The Agency acknowledges and appreciates the comment. The commenter is referred

to Unit V of t he 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 i ncorporate the CCR rules into state solid waste management plans.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06723

- 19 Organization: West Virginia Department of Environmental Protection (WVDEP)

Commenter: Gary Casto on behalf of Randy C. Huffman

Commenter Type: State Government

Comment Excerpt Text: Since the 1970's impoundments have been regulated by the West Virginia Dam Safety Act which WVDEP administers. The design of each of the seven disposal surface impoundments referenced

above was reviewed for str uctural stability and subsequently approved prior to their construction. WVDEP annually inspects each of the seven impoundments for structural stability. Please note that Subtitle D lacks a mechanism for the states to administer the proposed regulations. S tate regulatory programs that meet or exceed the proposed Subtitle D standards should be allowed to administer the Subtitle D rules through state permit issuance.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred

t o Unit IX of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid waste management plans.316

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06808

- 14 Organization: New Mexico Environment Department (NMED) and Energy, Minerals and Natural Resources Department (EMNRD)

Commenter: Bill Brancard

Comment Excerpt Text: Furthermore, because CCRs are currently exempt from Subtitle D regulation in New Mexico, there is currently very limited potential for use of existing in

- sta te Subtitle D landfill capacity to accept these wastes. Much of the CCRs covered by the proposed rule will likely meet the definition of “ash” under New Mexico’s solid waste rules, 20.9.2 NMAC. Three landfills are permitted to accept “ash” from industrial or other non

- power generating sources as a Subtitle D Special Waste. Two of the three landfills currently accept small quantities of “ash.” The third currently does not accept “ash.” Two of the three permitted landfills are small landfills located in

rural areas. The large landfill that accepts “ash” is located in Rio Rancho, New Mexico, which is approximately 176 miles from the concentration of power

- generating plants near the Four Corners area of the state. Additionally, this facility is nearing capacity and the end of its permit

life.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06808

- 15 Organization: New Mexico Environment Department (NMED) and Energy, Minerals and Natural Resources Department (EMNRD)

Commenter: Bill Brancard Commenter Type: State Government

Comment Excerpt Text: Under either Subtitle C or Subtitle D, New Mexico would have to amend either the New Mexico Solid Waste Act or the Hazardous Waste Act and the implementing regulations . As a result, there is no significant time or resource advantage to either regulatory path. Under either option, facilities would continue to operate under an existing ground water discharge permit until the solid or hazardous waste statutes and regulatio ns could be changed. Under the RCRA Subtitle C option, facilities would become subject to RCRA interim status once New Mexico adopted appropriate rules, and would remain so until a RCRA permit was issued. While under interim status, facilities would be req uired to retrofit surface impoundments to meet any new liner, leachate collection, and groundwater monitoring requirements. Because of limited capacity in current Subtitle D landfills in New Mexico, permit modification processes and siting and permitting n ew landfill facilities still would be necessary to meet the expected increased demand under the Subtitle D option.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06815

- 3 Organization: Michigan Dep artment of Natural Resources and Environment (DNRE)

Commenter: Liane J. Shekter Smith317

Commenter Type: State Government

Comment Excerpt Text: Additionally, any new regulations under Subtitle D should allow for a determination of existing state program adeq uacy similar to what is already provided for under the current Subtitle D program for municipal solid waste or sufficient time to amend state regulations so that a determination of state program adequacy can be obtained in order to implement any additional requirements as stated in the proposed rule. Enclosed please find our comments on specific questions raised in the proposed rule.

Response: The Agency acknowledges and appreciates the comment. The commenter is 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

- 2009

- 0640

- 06815

- 30 Organization: Michigan Department of Natural Resources and Environment (DNRE)

Commenter: Liane J. Shekter Smith Commenter Type: State Government

Comment Excerpt Text: Michigan has an effective CCR regulatory program. The siting, construction, monitoring, operational, and corrective action requirements have been shown to be adequate to protect

human h ealth and the environment. Many CCR disposal sites in Michigan began accepting waste prior to the effective date of state rules. Once the groundwater monitoring and corrective action requirements took effect, and the existing sites were evaluated, it was d etermined that many of the existing un

- lined sites had caused groundwater contamination. Eight former and existing disposal sites have been subject to corrective action. Of these, six have been closed and capped and two remain active and have cleanup plans in place.

There are currently nine active disposal sites in Michigan that accept 88 percent of CCR generated in the state. Combined, these disposal sites have approximately 62,000,000 cubic yards of remaining permitted disposal capacity, or about 27 yea rs of disposal capacity at current generation rates. Of these disposal sites, only one, with approximately 2,000,000 cubic yards of permitted capacity, would meet the proposed composite liner design requirement. All of the remaining sites would be forced t o close in the five to seven year window provided in the proposed rule. Since it is unlikely that all the associated public utilities would cease operation or convert to other fuel stocks in the interim, this disposal capacity would need to be replaced. In the event that the Subtitle D option is implemented as written, the existing facilities would have to be replaced with newly permitted composite

- lined landfills.

The permitting process in Michigan includes several elements. Under current solid waste

reg ulation, any proposed new landfill must demonstrate compliance with the Solid Waste Management Plan of the county in which the disposal area will be located. Of the eight landfills that would be required to close, seven are located in counties that provide for the siting of new landfills within the county. The remaining county would allow the siting of a landfill, provided the community it is to be located in is willing to enter a Host Community Agreement. County318

Solid Waste Management Plans may be altered, but this process generally takes a minimum of one to two years. There is no statutory limit on the time frame that may be taken to amend a county plan or to obtain a determination of consistency with the county plan, so the process may

take more than the one to two year period. Once it has been determined that a landfill is consistent with the County Solid Waste Management Plan, the owner/operator of a proposed landfill may apply for a construction permit upon completion of a hydrogeological investigation of the proposed site and the preparation of other necessary permit application documents. Once an administratively complete permit application is received, the DNRE must make a decision on the permit within 120 days. Given the uncertainties associated with the county

- planning· process, site investigatory work, and permit review, it is difficult to determine if adequate replacement disposal capacity for CCR could be available within the timeframes provided.

Michigan has approximately 430,000,000 cubic yard s of existing permitted capacity available at 49 Subtitle D landfills located throughout the state. In

- state disposal of Michigan generated solid waste is prohibited in a county other than the county of generation unless it is reciprocally authorized per b oth the importing and exporting county Solid Waste Management Plans. These restrictions may limit access to existing permitted capacity in portions of the state.

It is likely that, should the Subtitle D proposal be implemented, Michigan should have adequ ate disposal capacity available in the short term, and public utilities should have the ability to develop additional landfill capacity in the long

- term, although at additional expense over their current operations.

The DNRE has recently had to reduce st affing in the Subtitle D program due to funding constraints. It is likely that given these reductions, the need to complete consistency reviews, provide for public participation and technical reviews of an addition eight landfill construction permits would strain our existing resources and compromise our ability to run our program effectively.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06816

- 5 Organization: Phoenix Cement Company (PCC), Salt River and Rock, Salt River Materials Group

Commenter: Roger R. Smith

Comment Excerpt Text: PCC opposes any additional regulation of CCR. Arizona already has the appropriate regulatory framework in place to protect human health and the environment from CCR management units. The adoption of a new federal regulatory program would overlap with Arizona’s existing regulatory program, would not provide any additional protection to human health and the environment, but would simply require Arizona to expend alread y strained resources to amend its proven regulatory program to conform to an unproven federal regulatory program. Additionally, it would undermine our company and eliminate jobs in these already difficult economic times. If EPA insists on further regulatin g CCR, it should be under a Subtitle D solid waste approach which will work in conjunction with existing state programs, not under Subtitle319

C as a hazardous material.

Response: The Agency acknowledges and appreciates the comment. The commenter is referr ed 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

- 2009

- 0640

- 06844

- 5 Organization: Intermountain Power Agency (IPA)

Commenter: James A. Hewlett Commenter Type: Electric Utility Company :

Comment Excerpt Text: The Subtitle D proposal would give the EPA authority to set performance standards with a narrower scope that would be protective of the environment. The proposal should provide t hat States having comparable Subtitle D programs in place (e.g., the State of Utah) and, where site specific conditions warrant, take precedence over federal regulations including landfill permitting and groundwater monitoring and protection. Other State programs should similarly have precedence including State financial assurance programs and State self

- reporting requirements in lieu of company web based documentation. Subtitle D provisions would overlay State programs where such programs were not compliant. IPA believes this option provides for the safe management and disposal of CCR without imposing po tentially prohibitive costs on IPA and the contemporaneous rate burden on our purchasers and the reduction in recycling opportunities of coal combustion by

- products if the materials are regulated under RCRA Subtitle

C.

IPA believes that regulating the CC R under Subtitle D will meet the intent and spirit of the federal RCRA statute of resource conservation through reduction, reuse, and recycling of

materials.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred

to Uni t 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 sta tes to incorporate the CCR rules into state solid waste management plans.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06846

- 6 Organization: Florida Department of Environmental Protection (FDEP)

Commenter: Richard B. Tedder on behalf Mary Jean Yon

Comment Ex cerpt Text: The Department believes, with its existing state laws, it is appropriately regulating the disposal of CCRs as solid wastes in Florida. In addition the Department intends to develop a new rule to update and consolidate our requirements for manag ing industrial wastes including CCRs. However, the Department has no fundamental objection to EPA regulating the disposal of CCRs as solid wastes under RCRA subtitle D (in particular the D prime approach) provided sufficient flexibility is built into those regulations to recognize Florida's unique situation.320

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit 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

- RCR A

- 2009

- 0640

- 06863

- 10 Organization: Avista Corp.

Commenter: Darrell Soyars Commenter Type: Electric Utility Company

Comment Excerpt Text: Avista believes that any final Subtitle D regulatory program for CCRs must include a mechanism

for the administration and implementation of the rules by the states. As EPA itself has concluded, many states already have well

- established and protective regulatory controls for CCRs. Therefore, it makes sense to coordinate development of new federal rules for CCRs with

existi ng state regulations. Failure to do so will result in redundant and potentially inconsistent regulations and would contravene the Bevill Amendment’s directive that, in developing federal regulations for CCRs, EPA avoid duplication of effort with pre

- existi ng regulatory programs.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit 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

- 2009

- 0640

- 06865

- 21 Organiza tion: Constellation Energy

Commenter: Charlene Zaruba on behalf of Paul Allen Commenter Type: Electric Utility Company

Comment Excerpt Text: The liner systems for base liner systems and closures should be allowed to match the municipal landfill regulation s of individual states. There has been over 17 years of experience and research on the appropriate liner systems under Subtitle D for individual states that can accommodate the variations in groundwater depth, the availability of clay, and the amount of pr ecipitation per year (arid climates) that has been backed up with monitoring data that shows proper performance. Liner systems and covers for CCR can be matched to the requirements of municipal landfills in

individual states as there is less risk associate d with the non

- biodegradable nature of CCRs and minimal potential for landfill gas.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit V I of the preamble discussion for the Agency’s rationale for promulgating the technical requirements, including the liner requirements. See also the Response to Comments Document

Volume 5 on liners.321

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 1 Organization: Nebraska Department of Environmental Quality (NDEQ)

C ommenter: David B. Haldeman Commenter Type: State Government

Comment Excerpt Text: The proposed regulations have the potential to significantly impact NDEQ's existing CCR permitting and management program depending on the regulatory approach EPA pursues i n its

final rule.

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

- 2009

- 0640

- 07533

- 24 Organization: Nebraska Department of Environmental Quality (NDEQ)

Commenter: David B. Haldeman

Comment Excerpt Text: Nebraska’s regulations for CCR management are contained in Title 132

– Nebraska Integrated Solid Waste Management Regulations. Nebraska has been impleme nting these regulations for nearly 17 years. New federal rules for management of CCR under Subtitle D would probably require some rule making changes to Title 132 involving some extra expenditure of resources, but could probably be absorbed by the existing program. Adopting flexibility in the federal rules under a Subtitle D approach similar to the flexibility provided for in the federal MSWLF rules under 40CFR Part 258 would help to mitigate these problems.

Nebraska utilizes Title 118

– Ground Water Quali ty Standards and Use Classification to address corrective action at landfills, and for all other point source pollution occurrences. Appended to Title 118 is Appendix A, Ground Water Remediation Protocol. This appendix prescribes an eleven step process tha t NDEQ follows to investigate a site and make corrective action decisions. When NDEQ went through the program approval process for its municipal solid waste landfill permit program under Subtitle D, Title 118 was found to be equivalent to the corrective ac tion process laid out under 40CFR Part 258 for municipal solid waste landfills even though the regulations were not the same. If EPA adopts a prescriptive approach in performing corrective action without any allowance for flexibility, adopting the program would create procedural difficulties. Adopting flexibility for states that have permit programs for CCR landfills or other regulatory structure to address corrective action at CCR landfills would help mitigate the procedural difficulties.

Response: The A gency acknowledges and appreciates the comment. The commenter is 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.322

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 39 Organization: Nebraska Department of Environmental Quality (NDEQ)

Commenter: David B. Haldeman Commenter Type: State Government

Comment Excerpt Text: NDEQ’s corrective action requirements are contained in Title 118 Ground Water Standards and

Use Classification and do not mirror the requirements found in 40CFR Part 258 or those in EPA’s proposed rule. However, during the program approval process of NDEQ’s municipal solid waste landfill permit program EPA determined that NDEQ’s corrective action re quirements contained in Title 118 were equivalent to 40CFR Part 258, and NDEQ’s municipal solid waste landfill permit program was subsequently approved. NDEQ encourages EPA to allow flexibility to states with different regulatory approaches for ground wate r protection and corrective action to utilize their existing regulatory structure. To establish different standards for municipal solid waste landfills and CCR landfills would create inconsistency in policy and would be a burden on state programs (to have to create and implement a separate set of standards.)

While we strongly oppose the regulation of CCR as hazardous waste under RCRA Subtitle C or as nonhazardous waste under RCRA Subtitle D, if EPA decides to change the Subtitle listing of CCR, Nevada respectfully requests that the procedures for authorizing Nevada's program to implement any new and additional CCR rules be streamlined and designed to operate in harmony with the existing Subtitle D program authorization procedures. Deference should be gi ven to Nevada's program in the authorization process as it is consistent with, and no less stringent than, the federal regulations. Moreover, any new CCR rules and regulations should be treated as an amendment to Nevada's existing Subtitle D program author ization rather than imposing new CCR rules and regulation as separate and distinct from Nevada's authorization.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit 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 so lid waste management plans.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07793

- 6 Organization: South Dakota Department of Environmental and Natural Resources

Commenter: Vonni Kallemeyn :

Comment Excerpt Text:

It will take some additional time and resources to regulate CCR as a solid waste as well under Subtitle D, however it will be much less of a financial/employee impact. The solid waste program is a permit driven program versus our hazardous waste program is an inspection and enforcement driven program in this state.323

Response: The Agency acknowledges and appreciates the comment. The commenter is 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

- 2009

- 0640

- 08218

- 10 Organization: Maryland Department of the Environment (MDE)

Commenter: Shari T. Wilson Commenter Type: State Government

Comment Excerpt Text: For these reasons, Maryland suggests a system like that used for municipal solid wastes under 40 CFR 258, where States must integrate the federal standards into the State program and seek program approval from EPA under 40 CFR 239. This eliminates duplicative requirements and allows States to provide detailed technical review by hydrogeologists and engineers of their solid and industrial waste permitting units to proposed CCR disposal facilities, to ensure that these units are safely designed and operated. This is much more desirable than relying on third

- party certifications by consultants as would be the case under the proposed RCRA D option, whom may not as fully cognizant of the geotechnical conditions that exist in any given area, or be as familiar with the historical operating conditions at a particular site.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit 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 comment er 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

- 2009

- 0640

- 08218

- 24 Organization: Maryland Department of the Envi ronment (MDE)

Commenter: Shari T. Wilson Commenter Type: State Government

Comment Excerpt Text: It is also more desirable than the excessive requirements of the RCRA C approach, which, particularly with respect to the manifesting requirement, do not add any additional level of safety at all while adding a tremendous burden to both the haulers and the States.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 49 Organization: Maryland Department of the Environment (MDE)

Commenter: Shari T. Wilson Commenter Type: State Government

Comment Exc erpt Text: For the many reasons expressed herein, MDE does not favor regulation under RCRA C, or 40 CFR 257 as proposed. The Department recommends a system like that used for municipal solid324

wastes under 40 CFR 258, where States must integrate the federal standards into their program and seek program approval from EPA under 40 CFR 239. This would eliminate the potential for State and federal regulators to work at cross purposes, and facilitate compliance. It would also allow the States to provide detailed t echnical review by hydrogeologists and engineers from the solid and industrial waste permitting units to proposed CCR disposal facilities, to ensure that these units are safely designed and operated. This is much more desirable than relying on third

party certifications by consultants whom may not as fully cognizant of the geotechnical conditions that exist in any given area, or be as familiar with the historical operating conditions at a particular site, as State government scientists whom work in the are a full

- time. The CFR257 option would be very disruptive and less protective than the current State regulations.

EPA’s proposal to regulate the CCRs under 40 CFR 257, the Open Dump regulations, raises concerns about implementation and regulation. First, this proposal does not allow the States to evaluate and approve enhancements to important technical elements such as the liner design and groundwater monitoring system, as is the case under the 40 CFR 258 regulations. The inability of the States to specify more stringent monitoring requirements under the federal rule, such as additional monitoring wells beyond 4 wells, weakens state ability to enforce additional requirements when technically justified and requires states to put duplicative rules in place

ma king compliance for operators more difficult.

The use of self

- implementing rules raises compliance concerns and will lead to a dual regulatory system in those states, including Maryland, that have implemented more comprehensive requirements.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit 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 comme nter 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

- 2009

- 0640

- 08266

- 5 Organization : West Associates

Commenter: A. G wen Ekund on behalf of Starla Lacy

Comment Excerpt Text: A suggestion for improvement of the Subtitle D “Prime” option would be the ability for qualified state programs to directly administer the federal Subtitle D regulations for CCR when the state program meets or exceeds the federal controls. This action would minimize duplication of effort by state and federal agencies and allow qualified state programs to administer the rules instead of

the self

- implementing approach contained in EPA’s proposal. The states, in turn, can develop their own permitting programs for these CCR disposal units including CCR landfills and CCR surface impoundments. Further, if certain CCR surface impoundments cannot operate in an environmentally sound manner, then closure c an be conducted under a State approved program within a reasonable timeframe determined specific to the individual project. Many western utilities manage CCR as dry ash and the geology in the western US provides a measure of325

protection, depending on the ar ea, with natural bedrock geology. WEST has appended a letter sent from Western Governors’ Association on March 5, 2010 to the Honorable Lisa Jackson, Administrator of U.S. EPA, which is consistent with WEST recommendations regarding CCR in

the western U.S.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit 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

- 2009

- 0640

- 08787

- 29 Organization: Association of Stat e and Territorial Solid Waste Management Officials (ASTSWMO)

Commenter: Stephen A. Cobb (Al) Commenter Type: State Government

Comment Excerpt Text: Responses to a State survey begin to quantify the amount of funding that would be needed for each proposal. Contrasting the estimated resource needs for Subtitle C versus Subtitle D programs also illustrates that the latter is a better use of resources.

Based on responses from 35 States, it is estimated that over 150 additional FTEs would be needed just for p ermitting. If the annual cost of one FTE for salary, fringe benefits, and overhead is approximately $100,000, the additional personnel costs for Subtitle C permitting for 35 States alone could exceed $15 million. Additional expenditures would be needed for personnel inspecting the facilities and enforcing the permits.

There were 22 States that were able to estimate the number of FTEs for the Subtitle C option versus the Subtitle D option. The 22 States estimated that an additional 116 FTEs would be

needed to process original RCRA C permit(s) (operating and/or closure

-- post

- closure) compared to an additional 62 FTEs that would be needed to permit Subtitle D facilities. Based on these estimates, the Subtitle C option could cost twice as much as the Subtitl e D option, $12 million versus $6 million respectively.

Funding for training would be needed, particularly for staff processing original installation permits for new RCRA C hazardous waste facilities. Only a few States have issued an original

installatio n permit since 1990. Of the 38 staff that States identified as having experience processing original Subtitle C installation permits, 23 are eligible to retire in 5 years. The point is that training costs would have to be factored into STAG funding needs.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit 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. Additionally, the Subtitl e D option being326

promulgated has no provisions or authoriti es that would allow funding states because the states are not required to implement or enforce the D rules under the authorities EPA has been given.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08787

- 31 Organization: Association of State and Territorial Solid Waste Management Officials (ASTSWMO)

Commenter: Stephen A. Cobb (Al) Commenter Type: State Government

Comment Excerpt Text: The EPA proposal identifies the adequacy of State programs as a central issue in selection of an option. A common theme throu ghout the proposal is that the lack of "federal oversight of State programs" is a "disadvantage to any approach under RCRA Subtitle D." The EPA proposal notes that Subtitle D is implemented by the States and "EPA may act only if the handling, storage,

trea tment, transportation, or disposal of such wastes may present an imminent and substantial endangerment to health or the environment (RCRA 7003)." The implication is that State Subtitle D programs are inadequate, but EPA presents no evidence to support this presumption.

Since enactment of the 1979 federal Subtitle D regulations, 40 CFR part 257 Criteria for Classification of Solid Waste Disposal Facilities and Practices has established the minimum national performance standards necessary to ensure that "no reasonable probability of adverse effects on health or the environment" would result from solid waste disposal facilities or practices. States either already had existing State requirements or voluntarily adopted rules that

meet or exceed the Subtitle D n ational performance standards. When State regulators were recently asked whether existing State standards/regulations for non

- MSW facilities are mostly compatible with or more stringent than the existing Part 257 minimum standards, 47 out of 47 States resp onded "yes".

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit 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

- 2009

- 0640

- 08787

- 32 Organization: Association of State and Territorial Solid Waste Management Officials (ASTSWMO )

Commenter: Stephen A. Cobb (Al) Commenter Type: State Government

Comment Excerpt Text: EPA's proposal raises concerns regarding the reliance of RCRA Subtitle D on citizen sui t enforcement authority given that States are not required to adopt the federal minimum standards into State regulations. EPA's concerns should consider that a number of State programs already have enforceable State requirements that meet or exceed many of the proposed CCR federal minimum standards. Also, the history of 40 CFR part 257 demonstrates that many States would327

voluntarily establish compatible State regulations. Specific to a citizen suit under the CCR proposal, the proposed RCRA Subtitle D requir ements are clear and unambiguous. The requirements that owners or operators of CCR disposal facilities maintain independently reviewed documentation of compliance on publically available web sites and provide notice to the State environmental agency ensure s public access. These requirements establish a substantial basis for both citizens and those States without equivalent State requirements to successfully enforce under RCRA citizen suit authority. This is much improved over the existing 40 CFR part

257 Cr iteria for Classification of Solid Waste Disposal Facilities and Practices. Unlike the existing 40 CFR part 257 requirements, which are too ambiguous and do not require the owner or operator to document compliance, the proposed RCRA Subtitle D rules are ac tually useful towards developing a citizen suit.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disp osal 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

- 200 9

- 0640

- 08787

- 35 Organization: Association of State and Territorial Solid Waste Management Officials (ASTSWMO)

Commenter: Stephen A. Cobb (Al) Commenter Type: State Government

Comment Excerpt Text: Based upon the history of implementation of the solid wast e program, upon adoption under Subtitle D, national CCR standards would be established quickly and nationwide, allowing States to continue enforcement under their State regulations with the ability to file citizen suits where State enforcement authority is limited. EPA should work directly with those States with limited State enforcement to support those States' voluntary enactment of authority and adoption of compatible enforceable State requirements.

Response: The Agency acknowledges and appreciates th e comment. The commenter is 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

- 2009

- 0640

- 08787

- 37 Organization: Association of State and Territorial Solid Waste Management Officials (ASTSWMO )

Commenter: Stephen A. Cobb (Al) Commenter Type: State Government

Comment Excerpt Text: 1. As currently proposed, an owner or operator of a CCR disposal facility would need to fully comply with both the self

- implementing national minimum CCR disposal standards and existing State requirements. This appears to be true even if the State requirements meet or exceed the328

self

- implementing national minimum CCR disposal standards. In such a circumst ance, EPA should establish some process to address conflicts between the federal minimum standard and a more protective or regionally appropriate State standard.

2. Many States wonder if EPA would establish a mechanism by which EPA acknowledges a

demonst ration that a State permit program meets or exceeds the federal minimum CCR standards. Such mechanism should accommodate regionally appropriate State standards.

3. EPA should clarify that the proposed CCR regulations do not apply to any State permitted

M SW landfill that has previously accepted or may accept CCR. While most CCR are currently disposed at electric utility owned CCR disposal sites, there is no prohibition against CCR being disposed in State permitted MSW landfills. A reading of the current CC R regulations under the Subtitle D approach would require that a State permitted MSW landfill that has previously disposed or may dispose of any quantity of CCR would be fully subject to duplicative requirements with the additional burden of posting docume ntation on a website, having an independent professional review certification, etc. EPA should facilitate this disposal option by clarifying that the proposed CCR regulations are not applicable to any State permitted MSW landfills. The suggested clarificat ion would also help with use of State permitted MSW landfills as interim CCR disposal capacity as utilities seek to close, upgrade, or develop their own compliant CCR disposal sites.

Response: The Agency acknowledges and appreciates the comment. The co mmenter is referred to Unit 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 applicability section of

Unit VI contains a discussion of the stat us of MSW landfills accepting CCR. 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

- 2009

- 0640

- 08854

- 1 Organization: Environmental Council of the States (ECOS)

Commenter: R. Steven Brown Commenter Type: State Government

Comment Excerpt Text:

ECOS is the non

- profit, non

- partisan association of state and territorial environmental

commissioners. The associati on's position on the regulation of CCR is articulated in Resolution

08

- 14, adopted on September 22, 2008 and revised on March 23, 2010, entitled, "The Regulation of Coal Combustion Products" (see Appendix 1).

In the resolution, ECOS calls upon the U.S. E nvironmental Protection Agency (EPA) to conclude that additional federal CCR regulations would be duplicative of most state programs, are unnecessary, and should not be adopted, but if adopted must be developed under Subtitle D

rather than Subtitle C of th e Resource Conservation and Recovery Act (RCRA).

Response: The Agency acknowledges and appreciates the comment.329

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08854

- 6 Organization: Environmental Council of the States (ECOS)

Commenter: R. Steven Brown Commenter Type: State Government

Comment Excerpt Text:

Resolution Number 08

- 14 Approved September 22, 2008 Branson, Missouri Revised March 23, 2010 Sausalito, California As certified by R. Steven Brown Executive Director

THE REGULATION OF COAL COMBUST ION PRODUCTS

WHEREAS, The 1980 Bevill Amendment to the Resource Conservation and Recovery Act (RCRA) requires the U.S. Environmental Protection Agency (U.S. EPA) to "conduct a detailed and comprehensive study and submit a report" to U.S. Congress on the "adverse effects on human health and the environment, if any, of the disposal and utilization" of fly ash, bottom ash, slag, flue gas emission control wastes, and other byproducts from the combustion of coal and

other fossil fuels and "to consider actions of state and other federal agencies with a view to avoiding duplication of effort;" and

WHEREAS, U.S. EPA conducted the comprehensive study required by the Bevill Amendment and reported its findings to U.S. Congress on March 8, 1988 and on March 31, 1999 , and in both Reports that recommended that coal combustion wastes (CCW) not be regulated as hazardous waste under RCRA Subtitle C; and

WHEREAS, on August 9, 1993, U.S. EPA published a regulatory determination that regulation of the four large volume coa l combustion wastes (fly ash, bottom ash, boiler slag, and flue gas emission control waste) as hazardous waste under RCRA Subtitle C is "unwarranted;" and

WHEREAS, on May 22, 2000, U.S. EPA published a final regulatory determination that fossil

fuel comb ustion wastes, including coal combustion wastes, "do not warrant regulation [as hazardous waste] under Subtitle C of RCRA," and that "the regulatory infrastructure is generally in place at the state level to ensure adequate management of these wastes;" and

WHEREAS, U.S. EPA is under no statutory obligation to promulgate federal regulations applicable to CCW disposal following the regulatory determination that hazardous waste regulation of CCW disposal is not warranted, and throughout the entire Bevill reg ulatory process, CCW disposal has remained a state regulatory responsibility and the states have developed and implemented robust regulatory programs tailored to the wide

- ranging circumstances of CCW management throughout the country; and

WHEREAS, in 200 5, U.S. EPA and the U.S. Department of Energy published a study of CCW disposal facilities constructed or expanded since 1994 and evolving state regulatory programs that found: state CCW regulatory requirements have become more stringent in recent years, t he vast majority of new and expanded CCW disposal facilities have state

- of

- the

- art environmental controls, and deviations from state regulatory requirements were being granted only on the basis330

of sound technical criteria; and

WHEREAS, the states have de monstrated a continuing commitment to ensure proper management of CCWs and several states have announced proposals for revising and upgrading their state CCW regulatory programs.

NOW, THEREFORE BE IT RESOLVED THAT THE ENVIRONMENTAL COUNCIL OF

THE STATES:

Agrees with U.S. EPA's repeated assessments in 1988, 1993, 1999, 2000, and 2005 that CCW disposal does not warrant regulation as hazardous wastes under RCRA Subtitle C;

Agrees with U.S. EPA's finding in the 2005 study previously cited that "the regula tory infrastructure is generally in place at the state level to ensure adequate management of these wastes" and believes that states should continue to be the principal regulatory authority for regulating CCW as they are best suited to develop and implemen t CCW regulatory programs tailored to specific climate and geological conditions designed to protect human health and the environment;

Supports safe, beneficial reuse of CCW, including for geotechnical and civil engineering

purposes;

Believes that the adoption and implementation of a federal CCW regulatory program would create an additional level of oversight that is not warranted, duplicate existing state regulatory programs, and require additional resources to revise or amend existing state programs t o conform to new federal regulatory programs and to seek U.S. EPA program approval;

Believes that if U.S. EPA promulgates a federal regulatory program for state CCW waste management programs, the regulations must be developed under RCRA Subtitle D rather than RCRA Subtitle C;

Believes that designating CCW a hazardous waste under RCRA Subtitle C could create stigma and liability concerns that could impact the beneficial use of CCW; and

Therefore calls upon U.S. EPA to conclude that additional federal C CW regulations would be duplicative of most state programs, are unnecessary, and should not be adopted, but if adopted must be developed under RCRA Subtitle D rather than RCRA Subtitle C, and in addition, urges U.S. EPA to make a timely decision, and calls upon U.S. EPA to begin a collaborative dialogue with the states to develop and promote a national framework for beneficial use of CCW including use principles and guidelines, and to accelerate the development of markets for this

material.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit 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 referred to Units IV and VI of the preamble for a discussion on the Bevill Regulatory Determination and331

the beneficial use of CCR. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expects states to incorporate the C CR rules into state solid waste management plans.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09237

- 8 Organization: Ohio Coal Association

Commenter: Michael T.W. Carey Commenter Type: Trade Association

Comment Excerpt Text: Regulation of CCR under Subtitle D of RCRA is also Unsuitable.

EPA has also proposed CCR be regulated as a solid waste under Subtitle D of RCRA. This option, while less egregious than regulation under Subtitle C, is still unsuitable and intrudes on the flexibility of the states to contin ue to manage CCR under state law structures. With respect to costs, as EPA itself acknowledges, the costs of regulatory compliance under Subtitle D run well into the billions of dollars. 75 Fed. Reg. 35128, 35216

- 35218. EPA attempts to mitigate the costs

o f compliance by arguing that the benefits of increased regulation include the reduced costs

associated with the clean

- up of a catastrophic failure of a CCR impoundment. However, EPA itself acknowledges that it has received comments contesting the estimates used by the Agency to calculate this particular "regulatory benefit." 75 Fed. Reg. 35147

- 35148. Ohio Coal also contends that the Agency has underestimated the costs of these regulations because these cost figures fail to take into account the cost that st ate environmental protection agencies will incur in monitoring and administering a new RCRA regulatory program. Additionally, EPA proposes to restrict state flexibility by imposing one

- size fits all requirements. For instance, EPA's proposed rules will req uire particular groundwater monitoring standards and prohibit states from establishing alternatives, as is commonly allowed with Subtitle D disposal facilities. 75 Fed. Reg. 35128, 35205. Regulation of CCR under Subtitle D also packs the double

- punch of re duced state flexibility along with increased costs of compliance as well as regulatory oversight. Thus, EPA proposes to increase costs while failing to demonstrate the factual and scientific benefits resulting from proposed regulation under Subtitle D of R CRA.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit 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 XII for a discussion on the cost and benefits of the final rule and 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

- 2009

- 0640

- 09273

- 4 Organization: Iowa Department of Natural Resources (IDNR)

Commenter: Wayne Gieselman Commenter Type: State Government

Comment Excerpt Text: The Agency put forth two divergent approaches, which has substantially complicated this332

rulemaking process, as well as making it extremely difficult to provide detailed comments on these differing approaches. Due to the level of revision we see as necessar y to make either approach practicable, and the likelihood that it will take several years before any federal regulation would become effective, the IDNR has decided to resume its prior rulemaking effort to put forth an appropriate Subtitle D regulation for CCR. The IDNR respectfully requests EPA implement clear federal standards under Subtitle D that all states could implement that would not duplicate existing state controls, as this would be a far more effective and appropriate policy for the management of CCR.

Response: The Agency acknowledges and appreciates the comment. The commenter is 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

- 2009

- 0640

- 09284

- 19 Organization: Virginia Department of Environmental Quality

Commenter: Jeffery A. Steers Commenter Type: State Government

Comment Excerpt Text: The Subtitle D proposal, while infinitely more reasonable then the Subtitle C p roposal, is not without concern. The main concern is the lack of flexibility and the budget impacts to implement this program if this Subtitle D option is pursued. The proposed regulations do not provide states with enough flexibility regarding CCR managem ent or disposal options. Additionally, states seeking approval of their CCR program will have to consider the impacts to their budgets due to the regulatory and permitting burden that will ensue. These budgetary impacts, while considerably less than those under the Subtitle C option, are still significant especially during this time of shrinking state funds and, therefore, cannot be ignored. These costs must be considered and Virginia DEQ recommends that EPA more fully evaluate these impacts and

consider th e work done by EPA and ECOS on the cost of rules implementation.

Virginia’s regulatory requirements for industrial landfills and the required permitting process are comprehensive. Our regulations have changed and strengthened since their initial adoption over 40 years ago. These regulations exceed current federal requirements which are under 40CFR257. It is with that reasoning, the DEQ continues to believe that our program is more than adequate to protect human health and the environment and that further f ederal regulation of this program will provide little to no protective benefit but will unnecessarily further strain state budgets.

As proposed, these regulations will significantly impact the Commonwealth of Virginia in many ways regardless of whether EP A decides to regulate CCR disposal under either Subtitle C or Subtitle D. Therefore, if this regulatory action is pursued, Virginia DEQ recommends that changes to both of the proposed options are necessary to avoid unintended adverse impacts to

our state's regulatory programs, private businesses, and human health and the environment.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit 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 also333

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

- 2009

- 0640

- 09284

- 56 Organization: Virginia Department of Environmental Quality

Commenter: Jeffery A. Steers Commenter Type: State Government

Comment Excerpt Text: Five years is the minimum amount of time for Virginia DEQ to im plement the rulemaking process to amend our regulations, receive permit applications, review permit applications for new CCR landfills that meet the standards of the Subtitle D proposal, and issue permits for these

landfills. EPA would have to commit staff to approve the CCR permit program, however, if the MSW program is to be utilized as a model. Approvals of state permit programs would need to be completed within 18 months after the effective date of the rule so that adequate time can be allowed for the p ermit application process.

Virginia DEQ does not fully support EPA's proposal to regulate CCRs under the authorities of RCRA Subtitle D. While the Subtitle D regulatory approach is greatly preferred over the Subtitle C proposal, there are issues that need further consideration if the Subtitle D approach is pursued by EPA. The general concern is that the proposed regulations do not provide states with enough flexibility regarding CCR management or disposal options. Many states, like Virginia, have a long hi story of dealing with industrial solid waste. The regulations need to be flexible enough to allow states to use equivalent alternatives rather than a specific "standard" as necessary and appropriate. This would include allowing states to evaluate and appro ve alternate liner and cover designs. The prescriptive one

- size

- fits

- all approach is overly burdensome and unnecessary in areas where local conditions provide an equivalent degree of protection.

Subtitle D option: Under the Subtitle D proposal, the minimu m federal criteria would take effect within 180 days after promulgation of the final rule. Virginia DEQ would likely need to undertake a rulemaking to revise our regulations for CCR landfill requirements and surface impoundments to be consistent with EPA's promulgated regulatory requirements. While EPA's minimum Subtitle D standards include many self

- regulating provisions, Virginia DEQ would likely implement and oversee these facilities directly through regulation as we do for the municipal solid waste land fill provisions under 40 CFR 258. In general, the full regulatory process in Virginia takes almost two years to complete and, therefore, Virginia DEQ would need additional time to incorporate these requirements into current regulations before a CCR program could be implemented. Funding for this expanded CCR program will also be a barrier to implementation, as Virginia DEQ has had numerous budget cuts in the last few years. Federal funding for this program and more time to allow the states to undertake regul atory action and to implement the program will be necessary.

Both options presented by EPA will have an impact to already strained state budgets. Virginia has projected that under the Subtitle C option, an additional $350,000 per year will be needed to

pr operly implement the program; under the Subtitle D option, an additional $76,000 per year will be needed. The costs of rules cannot be ignored by proposing states implement or increase fees.334

EPA needs to ensure that the rules adopted are protective and avo id unnecessarily and unjustifiably high costs to states and society.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit VIII of the preamble for a discussion on the effective dates of the CCR rule and implem entation timelines. 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. Additionally, the Subtitl e D option being promulgated has no prov isions or authorities that would allow funding states because the states are not required to implement or enforce the D rules under the authorities EPA has been given.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 3 Organization: Arizona Department of Environmental Quality (ADEQ)

Commenter: Benjamin H. Grumbles Commenter Type: State Government

Comment Excerpt Text: As stated in ADEQ's June 29, 2009 letter to EPA, Arizona already has the appropriate regulatory framework in place to protect human health and the environment from CCR management units. The adoption of a new federal regulatory program would overlap with Arizona's existing regulatory program. A new federal program would require Arizona to expend already strained resources to amend its proven s tate program to conform to a largely unnecessary and unproven federal regulatory program.

The proposed rule will require extensive monitoring and statistical analysis of groundwater data that is not compatible with groundwater monitoring requirements unde r Arizona’s Aquifer Protection Program.

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 dispos al 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

- 2009

- 0640

- 09358

- 4 Organization: Interstate Power and Light Company (IPL) and Wisconsin Power and Light Company (WPL)

Commenter: Kathleen A. Lipp

Comment Excerpt Text: A shortcoming of the proposed Subtitle D option is the lack of a provision for state regulat ory agencies to incorporate the proposed EPA Subtitle D CCR regulations into qualified state regulatory programs with state regulatory enforcement authority. The exclusion of qualified state programs makes no practical sense and will result in parallel and redundant regulatory programs. The final Subtitle D rules for CCRs should include a mechanism for qualified state programs meeting the federal Subtitle D CCR standards to be administered and enforced by state335

regulatory agencies. EPA could develop a proce ss for evaluating state CCR controls and determining that state controls are no less stringent than the final Subtitle D controls in a similar manner to how EPA currently reviews and approves state programs for municipal solid waste

landfills under Subtitl e D. EPA would allow the states meeting these CCR management standards to administer the controls to avoid the duplication of regulatory programs, with the added benefit of eliminating many of the burdensome and confusing self

- implementing procedures curre ntly reflected in the proposed RCRA Subtitle D approach; the state regulatory agency would have responsibility for ensuring compliance with the applicable requirements. As noted above, the current Wisconsin CCR regulations administered by the WDNR already incorporate the majority of the proposed RCRA Subtitle D requirements, with the exception of requiring lined surface impoundments ... and these missing elements could be easily incorporated. Hence, Wisconsin could easily implement a CCR management program under Subtitle D that would fully meet EPA objectives. There is no reason similar programs could not be developed and implemented in all remaining states.

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 expect s states to incorporate the CCR rules into state solid waste management plans.

Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0238

- 12 Organization: Southern Company

Commenter: Chris Hobson Commenter Type: Electric Utility Company

Comment Excerpt Text: The NGOs claim that “EPA greatly overestimated the regulatory requirements of many states” and that EPA “estimate[d] that far more states will improve their state programs under a subtitle

D rule.” The NGOs also state:

EPA’s method of determining which s tates will adopt subtitle D regulations relies on the agency’s interpretation of state law. . . . [B]y misinterpreting state regulatory requirements, EPA estimates that far more states will improve their state programs under a subtitle D rule. Because

EPA proceeds to assign costs and benefits based on this over

- optimistic calculation, the Agency assigns considerably more health and environmental benefits to state regulation pursuant to subtitle D option than is appropriate. [Footnote 39: NGO Comments, supra note 20, at 46.]

First, that position is unfounded because, as discussed above, states’ current regulation of CCBs is not determinative as to whether states will adopt Subtitle D regulation if EPA ultimately adopts a Subtitle D regulatory program. Secon d, Southern Company emphasizes that, contrary to the NGOs’ position, in its 2010 proposed rule EPA drastically underestimated the costs associated with Subtitle D regulation. The engineering requirements between Subtitle C and Subtitle D regulation are nea rly identical. While the additional, Subtitle C requirements are extremely costly, EPA’s predicted cost estimates are grossly underestimated. For example, EPA estimates that for the entire industry, the cost of implementing EPA’s Subtitle D regulatory336

prog ram across the entire system would cost $587 million for the next 50 years, [Footnote 40: 75 Fed. Reg. 35213.] while Southern Company alone estimates [Footnote 41: Southern Company’s estimates are pre

- screening cost estimates, as distinct from cost estimat es for projects that are more definite as to the elements and timing of execution.] that implementing the Subtitle D regulatory program across the entire system would cost approximately between $9 and $15

billion.

Third, Southern Company reaffirms its po sition that although Southern Company believes no Federal regulation of CCBs is warranted, states would operate a robust CCB regulatory program under the Subtitle D option, including the D Prime alternative. Such a program would be most

cost

- effective for states and industry, while still providing the same engineering and human health protections as a Subtitle C regulatory program.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit XII of the preamble for a discussion on the cost and benefits of the final rule.

Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0255

- 10 Organization: North Dakota Department of Health

Commenter: Scott Radig Commenter Type: State Government

Comment Excerpt Text:

We believe our solid wast e rules provide a sound framework for effective regulation. North Dakota works to ensure that each solid waste structure for CCRs is effectively regulated and constructed in accordance with generally accepted engineering and environmental standards for

str uctural integrity and waste containment. If structures are found to be deficient, such structures will be corrected or closed. The existing North Dakota solid waste rules and permit process have been proven to be protective and provide the most expedient m ethod for addressing environmental protection and mitigation issues. EPA should defer to state programs with proven track records where the state has better knowledge of local conditions.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit 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 comme nter 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

- 2011

- 0392

- 0271

- 12 Organization: Association of State and Territ orial Solid Waste Management Officials (ASTSWMO)

Commenter: Ed Thamke Commenter Type: State Government

Comment Excerpt Text: Earthjustice Prediction of States That Will Not Adopt Subtitle D Criteria Failed337

In an elaborate evaluation, based in part on EP A’s analysis in the 2010 RIA, Earthjustice makes predictions about the likelihood of States adopting EPA’s June 21, 2010 Subtitle D proposal. The analysis is so convoluted and subjective that it is difficult to analyze. However, a critique of its

method is not necessary, because the conclusions it draws about States have already been proved

inaccurate.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 14 Organization: Association of State and Te rritorial Solid Waste Management Officials (ASTSWMO)

Commenter: Ed Thamke Commenter Type: State Government

Comment Excerpt Text:

Iowa

- Iowa was in the process of developing a proposal to regulate coal ash disposal when EPA published the proposed rule on June 21, 2010. Consequently, Iowa postponed its rulemaking pending the outcome of the EPA regulatory proposal. [Footnote 46: E

- mai l correspondence with Brian Tormey, Chief, Land Quality Bureau, Iowa Department of Natural Resources, November 10, 2011]

Response : The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 15 Organization: Assoc iation of State and Territorial Solid Waste Management Officials (ASTSWMO)

Commenter: Ed Thamke Commenter Type: State Government

Comment Excerpt Text: State Support for Federal Subtitle D Regulation

States have expressed overwhelming support for federal Subtitle D regulation of CCR. However, as demonstrated by Iowa’s experience, it is unlikely that States will proceed with regulations until it is clear what the course of federal regulation of CCR will be.

There are recent indications that States would adopt a federal proposal for Subtitle D regulation of CCR. There has been significant State support for the Coal Residuals Reuse and Management Act (H.R. 2273), which provides a federal framework for State regulation of CCR patterned after Subtitle D, Part 258 regulations. H.R. 2273 is considered more effective than EPA’s June 21, 2010 Subtitle D proposal, because, among other things, it provides for the implementation of State permitting programs.

Commonwealth of Virginia Governor Robert F. McDonnell wro te a letter of support for H.R. 2273 on October 11, 2011 recognizing that the bill’s State permit program:338

“is a realistic approach to dealing with CCR and although it will require effort to implement in Virginia, ....it would provide the appropriate and n ecessary protection for Virginia’s environment and citizens ...” [emphasis added]

The Governor’s letter acknowledges the required “effort to implement” the proposed permit program not only for its benefits to human health and the environment, but to avoid the negative impacts of Subtitle C regulation.

Numerous States wrote in support of H.R. 2273. States have also expressed their support in their response to this NODA:

Ohio letter to RCRA Docket ID# EPA

- HQ

- RCRA

- 2011

- 0392 dated October 28, 2011:

“Ohio is supportive of a subtitle D regulatory approach either through U.S. EPA rule adoption or passage of the Coal Residuals Reuse and Management Act (HR 2273).”

Pennsylvania’s letter to Docket ID# EPA

- HQ

- RCRA

- 2011

- 0392 dated November 8, 2011:

“Pennsylvani a’s experience is a testament to how well and how responsively the individual states can and do regulate in this area. Indeed, as Pennsylvania’s experience with Chapter 290 demonstrates, the states are better and more agile at doing so than is the federal government, which is one of the main underpinnings of HR 2273 recently passed by the House of Representatives. HR 2273 would provide general management guidelines under which states would able to implement environmentally protective programs that meet indi vidual state needs, a much better approach than designating a non

- hazardous material a hazardous waste.”

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0284

- 3 Organization: Alabama Department of Environmental Management (ADEM)

Commenter: Wm. Gerald Hardy Commenter Type: State Government

Comment Excerpt Text: As for the newly

- passed state law, not only did Alabama elect to regulate coal ash as a solid waste effective immediately, it specifically authorized the future adoption and implementation of a federal regulatory program for disposal of CCR. Until such time as said federal program is adopted, the disposal of CCR would fall under Alabama's existing solid waste requirements. Under these regulat ions, coal combustion by

- products are classified as an industrial solid waste and are subject to a hazardous waste determination. If determined to be non

- hazardous, the waste must be disposed of in accordance with ADEM's Solid Waste Program requirements fo r industrial waste. Landfills permitted to accept this type waste must be constructed with liner and leachate collection systems and must also conduct periodic groundwater monitoring.

Response: The Agency acknowledges and appreciates the comment.339

Com ment Number: TRANS

- ARL

- 0029

- 2 Organization: Utility Solid Waste Activities Group

Commenter: Pam Faggert Commenter Type: Trade Association

Comment Excerpt Text: A major shortcoming, however, of the Subtitle D and D prime approach is the lack of any

mechani sm for the states to step in and administer the regulations. Where state regulatory programs meet or exceed the EPA proposed Subtitle D standards, it makes no sense to not allow these qualified state programs to administer the federal Subtitle D rules

Res ponse: The Agency acknowledges and appreciates the comment. The commenter is 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: TRANS

- LVL

- 0044

- 2 Organization: Duke Energy Indiana

Commenter: Bryan Walsh Commenter Type: Electric Utility Company

Comment Excerpt Text: A major short

- coming, however, of either proposed Subtitle D approach is the lack of a mechanism for the states to step in and administer the regulation. Clearly, there are regulatory programs that already meet or exceed the proposed Subtitle D standards. States with qualified programs should be given the option of administering the federal Stub

-- Subtitle D rules if they

so desi re.

Response: The sections of RCRA that are applicable to CCRs

– sections 1008(a), 4004(a), and 4005(a) only authorize the Agency to establish minimum national criteria with which facilities must comply. EPA’s regulation does not preclude a state from in corporating the regulatory provisions being finalized today into state law and implementing and enforcing a single set of requirements. Nor does the regulation require the state to enforce the federal requirements, the decision to bring an action under 700 2 lies entirely within the state’s discretion.

We are not able to require states to develop programs or approve elements of a federal program. While states may have programs for the regulation of CCRs, which in some cases may be more stringent than today’s final rule, the federal program must be written as though states do not have a CCR disposal program in place. Because this rule is self

- implementing and there is no regulatory entity available to judge the reasonableness of the desired alternative s, EPA has determined that it is not able to allow alternatives in most cases, and instead is establishing minimum technical criteria for these units. Since the states can be more stringent, they can require additional monitoring wells, additional aquifers be monitored and additional parameters be added to the detection monitoring list or the assessment monitoring list, for example.340

The commenter is referred to Unit IV of the preamble for a discussion on our decision to regula te
CCR under subtitle D of RCR A and Unit IX of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid waste management plans.