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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 2014
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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 national 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

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

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

or subtitle D. EPA also conducted eight public hearings and took additional comments on the

proposed rule. EPA has established three dockets for this regulatory action under Docket ID No.

EPA-HQ-RCRA-2009-0640, Docket ID No. EPA-HQ-RCRA-2011-0392, and Docket ID No.

EPA-HQ-RCRA-2012-0028. All documents in these dockets are available at

http://www.regulations.gov. Although listed in the index, some information is not publicly

available, e.g., Confidential Business Information (CBI) or other information whose disclosure is

restricted by statute. Certain other material, such as copyrighted material, is not placed on the

Internet and will be publicly available only in hard copy form. Publicly available docket

materials are available either electronically in http://www.regulations.gov or in hard copy at the

OSWER Docket, EPA/DC, WJC West Building, Room 3334, 1301 Constitution Ave., NW,

Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday

through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

(202) 566–1744, and the telephone number for the OSWER Docket is 202–566–0276.
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After reviewing all the comments and additional data received, EPA is promulgating a 

final rule to regulate the disposal of CCR as solid waste under Subtitle D of RCRA. This rule 

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

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

and fugitive dust emissions. 

The Agency has developed seventeen volumes of summarizing comments on major 

topics covered in the proposed rule (see table below) and the Agency’s responses to those 

comments, as well as a separate volume summarizing comments provided during public 

hearings. Since EPA is finalizing a rule under subtitle D of RCRA, 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 

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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) 

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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 

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Operating Criteria: Endangered species/Surface water/Inspections/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 Use 
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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 account 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 including 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 provide “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 alternatives 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 contamination 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 based 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 modifications 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 RCRA 
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sections 1008(a)(3) and 4004(a), including the implications associated 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 designed 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 programs, 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 technical 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 

stringent 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 addresses 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 Impossible 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 RCRA 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 standards, permitting requirements for facilities managing CCRs, 

generator and transporter requirements, including manifesting, surface impoundment stability 
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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 authorization, 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 late 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 Subtitle 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 system 

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 loading areas to meet RCRA containerbuilding 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 available 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 the 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 requirements become effective, should EPA choose to 

promulgate a Subtitle C rule.
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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 contrary 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 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-2009-0640-06299-15

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 

aggressive. 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 Region 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 coal-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 comply 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 created 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. However, if the EPA is to select a Subtitle C or D approach, MidAmerican 
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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 closure 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 proposed 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 effective 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 Association
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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 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-2009-0640-06860-7

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 RCRA. The 

commenter is also referred to Unit VIII for a discussion on effective dates and implementation 

timeframes. 

Comment Number: EPA-HQ-RCRA-2009-0640-07534-10

Organization: Aquaterra Environmental Solutions, Inc.

Commenter: Scott Waltrip

Commenter Type: 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 ninth 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 requirements 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 265.1304(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 out 
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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 with 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 Subtitle 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 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-2009-0640-07534-11

Organization: Aquaterra Environmental 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 effective 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 CFR 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 specific 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 specific 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 Health
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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 effective 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 estimates 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 meet 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 program 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 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-2009-0640-08251-25

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. MassDEP 
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recommends that EPA establish 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. This 

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 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 specific 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-2009-0640-09281-8

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 rules 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 regulations 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 effective 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

Comment 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, 
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than for a disposal facility meeting the requirements 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 costs 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 Kingston 

response costs is three percent of the estimated $38 billion costs of removing the DOEcontaminated 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 Subtitle 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 

equipment 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 (Montana-Dakota)

Commenter: Abbie Krebsbach
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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 required 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 commenter 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 Country), 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 program) 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 those 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 authorized 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 effective 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 requiring 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 commenter 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 requirements, 

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. Each 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 appreciates 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 impacts 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. Sloan
16

Comment Excerpt Text:

"However, under the proposal, existing units would have to meet the groundwater monitoring, 

corrective action, and other requirements of the subtitle 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 discussion 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 regulations 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 mandating 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. 

Comprehensive 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 

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-2009-0640-06313-69

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 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-2009-0640-06313-73

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 indicator 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 features 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 understate 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 disincentive 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 — chemistry, 

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 point 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 hydrochemical 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 exact 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) and 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 statistical 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 that 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 when 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 fixed 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 any 

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. (“Unified 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 evaluation, 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 provide 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 source, 

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 monitoring 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 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 
20

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-2009-0640-06313-79

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 first 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 investigations 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, minimizing 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 commenter is also referred to Unit VI for a discussion the specific groundwater 
21

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, IQ, 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 elemental 

constituents have no halflife 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 monitoring 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 groundwater 
22

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. The 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 groundwater 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 groundwater 

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 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 require “identical” controls. 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 cause 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 

parameters 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. Multiple 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 assurance/quality control (QA/QC) program such that an assessment of 
23

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 either 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 that 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 and 

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 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-2009-0640-06532-12

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 proposal. 

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 require “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, 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. As EPA is 

aware, these 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 groundwater 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 federal 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 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 technical requirements of 

the rule including structural stability and groundwater 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 surface 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 Council 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 groundwater 
25

monitoring, they both fail to require retrofitting of existing landfills. The addition of groundwater 

monitoring is too little, too late for communities at risk from 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 adequately 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 Subtitle 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 proposals 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 indicator 

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 Service 
26

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 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-2009-0640-06808-13

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 would 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 corrective 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 

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 will be phased out, ending this 

huge risk to public health and the environment. The beneficial use of encapsulated CCRs can and 
27

will continue. Any “stigma” about the continued safe and appropriate use of CCRs can be 

countered by EPA, the relevant industries and by public 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 closure 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 will 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: Stephen 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 

another 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/hazard/correctiveaction/pdfs/2020fac.pdf ]. Requiring facilitywide 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 

corrective action activities at a facility are at least as resource intensive for the oversight agency 
28

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 issues 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 

difficult 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 conditions 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 permit 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 Corrective 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 years 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 

CCR 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 and 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 EPA 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 allows 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 the 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. The 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 

subtitle 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 under 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 rule 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 protective 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)

Commenter: 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 final 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.

Complying 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. Depending 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 point 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 unreasonable 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 which 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. 40 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 replacement to meet the storage requirements found in the hazardous waste 

regulations, including all requirements relating to tank systems, surface impoundments and waste 
31

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

Due to the sheer volume and the physical 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/handling of CCRs for beneficial use). This holds true despite the utilization of stateof-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 amounts 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.

Nonetheless, 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 potentially 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 subject 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 system 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 though 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. Moreover, 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 would 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 

discussion 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 effectively 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 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-2009-0640-06260-137

Organization: Kentucky Department for Environmental Protection

Commenter: R. Bruce Scott

Commenter Type: State Government

Comment Excerpt Text:

p. 35183: Nevertheless, EPA solicits comment 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 waste 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 regulations 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 sites 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 counterpart, 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 

facilities, 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 to 
33

perform corrective action as a result of documented groundwater contamination ..."

The phrase "solid waste sites or facilities" and "special waste sites or facilities" includes permitsby-rule, such as surface impoundments and temporary waste piles.

The Underground Storage Tanks Branch of the Division of Waste Management regulates 

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 permitting 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 disposal 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 for 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 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-2009-0640-06300-45

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: Electric 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 expensive and impractical. For example, Southern Company’s prescreening 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 action, 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 efforts 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, cumbersome 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

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-2009-0640-06300-50

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:

Risk-based Performance Criteria Are More Appropriate Than Prescriptive 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 Determination: 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 hydrological 

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 individual 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 corrective 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 

confining 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, provide 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-led 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 Excerpt 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 USEPA 
36

promulgates regulations under Subtitle C, staff feel current corrective 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 discussion 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 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-2009-0640-08218-44

Organization: Maryland Department 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 impose 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 resource 
37

intensive for the oversight agency as issuing an operating or post-closure permit, and are 

probably more resource intensive, since corrective action is an ongoing 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: 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 4.4.7 - GW monitoring and corrective action (35204-35207)

Comment Number: EPA-HQ-RCRA-2009-0640-06130-2

Organization: Mecklenburg 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 years 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 

toxicity 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 existing CCR landfills 

are subject to groundwater monitoring, corrective action, and other requirements (except as 
38

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

promptly remediated. 

Existing surface impoundments 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 operator 

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 initiate 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 

significant 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 the 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, inspections 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 “leaking”. 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 

standard 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 Subtitle 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 request 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 guidance 
39

issued in 2003. As such, the Plan contains all the key 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 components 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 account 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 Department 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, for 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 

occurrences 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 

monitoring 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 selfimplementing Subtitle D rule) to be authorized to establish an alternative, 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 

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 
40

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.

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 mitigate 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 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 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 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. 

These requirements 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 collection, groundwater monitoring and final closure 
41

• 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 federal 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 stringent 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 consequences 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 environmental 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 operate 

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 allow 
42

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 those 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 

governing 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 incorporate 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 existing 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 section 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, section 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 are 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 toxic 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 

requirement 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 assessment 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 EPA 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 adverse 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 anticipated 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 “storage, 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 a
44

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

solid 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 standard 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 establishment 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, Congress 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 criteria

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 directly 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 impose 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 7002 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 commenter 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 have 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

Organization: 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 to 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 provision 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 

downgradient 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 

modifications 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 boundary 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 point—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 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 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 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 a 

modification to the point of compliance, would be workable in the context of a selfimplementing 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

Organization: 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 certification 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 required 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 proposed 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 and have not created any off-site 

impacts to drinking water. Thus, not only must the proposed subtitle D prime option provide for 
47

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

alternative that may extend beyond 150 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 

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. 

The facilities in Florida will have to install groundwater monitors 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 corrective 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 specifically 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 background 

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 significantly 
48

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 disagree 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 developed 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 Action
49

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 have 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 used 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 corrective 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 released 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 

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 disposal 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 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 the rule. 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, so 
50

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

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 standards 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 due 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 protection 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 unit, 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 

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. 

From a technical perspective, given that site-specific factors are critical for establishing 
51

constituents and corresponding concentrations for detection and assessment monitoring, 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 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 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 4OO5(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 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 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 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 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). 

With 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 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 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 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. 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 warranted. 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. 
52

Additionally, Ameren 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 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 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 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 demonstrate 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 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. 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). 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 
53

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.

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.

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 mandatorilyinstalled 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 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 cases at levels exceeding EPA’s Regional Screening Level (RSL) 
54

of soil to groundwater and has been determined as potentially toxic if consumed concurrently 

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 stability 

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 referred to Unit IV of the preamble for a discussion of 

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

 

2

EPA’s Regional Screening Level (RSL) Soil to Groundwater Supporting Table (TR=1E-6, HQ=1) May 2014/Midatlantic 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 Health and Human Services, Agency for 

Toxic Substances and Disease Registry Division of Community Health Investigations Atlanta, Georgia. 

www.atsdr.cdc.gov
55

Unit VI for a complete discussion of the technical requirements of the rule. With regards to 

groundwater monitoring and corrective action, new 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 (TDEC)

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, 

construction 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 sufficient 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 nonMSWLFs 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 regulatory 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 from the otherwise applicable parameters 
56

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 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 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 including 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 can 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 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. 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

Organization: Earthjustice et. al.

Commenter: Lisa Evans
57

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 RCRAregulated 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 of them with contaminated groundwater, included 173 RCRAregulated 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 constituents 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 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. 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. 

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 landfills 
58

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 that 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 postclosure 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

Organization1:Duke Energy

Commenter1: 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 alternative 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 waste 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 

constructed 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, 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. 

The commenter is referred to Units IV and V of the preamble discussion for the Agency’s 

rationale and approach for promulgating this subtitle 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 programs.
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 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. If the 

state 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 

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-2009-0640-06416-55

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. 35204 – 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 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 
60

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-2009-0640-07395-17

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 eleven 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 importance, 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 

characteristics 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 the 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 related 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 of 
61

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, 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. 

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-2009-0640-07533-38

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. If 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 program 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, 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. 

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 

constituents 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 groundwater 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 

minimum 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 control 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 already 
63

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 different 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 create 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 requiring 

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 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 

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 Service 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 the MCl standard.

Response: In 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 in 
64

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).

Comment 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 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. 

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 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 
65

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 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-2009-0640-10538-13

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 subtitle 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 loophole 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 or 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 third-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 

proposed 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 conditions 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, filed 

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 based 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.” 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.” 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 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 
67

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 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-2009-0640-06410-60

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 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 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 effective 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 MSW 
68

landfill program. This justification 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 selfimplementing 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 adequate 

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 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 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 (WI 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 laboratories 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 contract 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 details 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 monitoring 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 professional engineer will ensure that all 

appropriate chain of command protocols as well any QA/QC protocols are acknowledged and 
69

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 

analysis 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 archiving 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 groundwater 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, we 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 represent 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 presumption 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 individual 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: 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 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 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. 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 discussion 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 

certification 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 role 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 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. 

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-2009-0640-06956-9

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 the 

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 in 
72

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. 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 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 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 sitespecific 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 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 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 [CCR] 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 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 
73

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-2009-0640-08218-21

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 Department 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, which 

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 impoundments 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 authorities 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 (MDE)
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 the 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 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, 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 change 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 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. 

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 management 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 facilities 
75

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 monitoring 

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 rules 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 as 

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 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 presumption 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, 

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 individual 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. 
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 certification 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 impoundments 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 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 detection monitoring 

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 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. 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 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 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 receive Conditionally Exempt Small 

Quantity Generator 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 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.” The Company believes this is a mistake.

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 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 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 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 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 not 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 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 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 

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 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-2009-0640-10017-14

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 groundwater 

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 Protection 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 of 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 registered 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 in 
79

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 authority, and the need to demonstrate that the rule provisions will achieve 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. 

Include a mechanism for qualified state programs to administer the rules instead of the selfimplementing 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 beneficial 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 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 
80

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. 

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 operations 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 facilities 
81

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 

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 waste 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 monitoring, 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 standards 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 are 

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 appropriate 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 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 “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 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.

The commenter is referred 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 discussion 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 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 
83

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 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-2009-0640-06532-39

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 and 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 conditions 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 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 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.
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 groundwater 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 hydrologic 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 no less frequently than semiannually. 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 insufficient 

ground water available to collect and analyze samples around CCR disposal units on a semiannual 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 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 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 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 weighed against the 

entity seeking to justify the alternate frequency.

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 

Eliminated
85

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 established 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. According 

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 that 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 particular 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 regulatory 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 parameters 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, 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 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 
86

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-2009-0640-10166-18

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 alternate 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 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 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 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.

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

Organization1:Earthjustice et. al.

Commenter1: 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 implemented. 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 this 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 acknowledges 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 assurance 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 the 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 acceptance 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 program 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, Subtitle 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, general 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 and 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 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. 

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 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.

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 complete 

discussion of the technical requirements, including groundwater monitoring.

Section 4.4.7.5.1 - EPA solicits 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 Agency 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 groundwater 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 of 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. However, 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 a 
91

problem, then more frequent monitoring 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 underground 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 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 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 flexibility 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 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. 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 

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 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 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 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-2009-0640-06723-23

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 of 
93

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. 

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, 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 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 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.

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 Fernando 

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 uncertainty 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 uncertainty 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 cross-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 groundwater 

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 prompt 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 downgradient 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 upgradient 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 wells 

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 disposal 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 certified 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: Anonymous

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 to 
95

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 and 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 pattern 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 horizontal 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 conductivities, 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, including 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 is 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 laboratory 
96

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 either 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 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 natural 

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 Groundwater 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 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 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 wells that influence the direction of groundwater 

flow.

 Upgradient groundwater quality is affected by a source of contamination other than the 
97

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 that 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 Facility 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 criterion 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 monitored 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 “Unified 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 located 
98

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 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 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 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 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 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 point—that is, “Although the existing 
99

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 intercept these fluids prior to 

their interaction with the surrounding rock milieu), other commenters (e.g., the Commonwealth 

of Kentucky, Docket No. EPA–HQ– RCRA–2012–0028- 00593) 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 potential 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 setback 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 destined 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 diversion 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 ultimate 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 composition 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 choose 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 Company

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-transpiration 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 or 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 releases. 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 storage 

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.

Response: Under the proposed rule, monitoring would be required no less frequently than semiannually. 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 insufficient 
101

ground water available to collect and analyze samples around CCR disposal units on a semiannual 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 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 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 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 weighed 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 may 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 example, 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 in 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 monitoring 

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. at 35175 (concluding that “these [composite] liner and leachate 

collection requirements will be protective of human health and the environment from the release 
102

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. See 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 surrounding the site and extending to the base of a 

designated aquifer or aquifers, within which an opportunity of the treatment, mixture or 

dispersion of wastes into receiving groundwater is afforded.” Rule 62-520.200(27), F.A.C. The 

default dimensions of a ZOD for a facility discharging to Class G-II groundwater are set forth in 

Rule 62-520.465, F.A.C. Typically, an applicant seeking a ZOD in G-II groundwater is provided 

a ZOD that extends laterally 100 feet from the disposal site boundary or to the facility’s property 

boundary, whichever is less. Numerical primary and secondary drinking water standards do not 

apply within an authorized ZOD. Rule 62-520.420(4), F.A.C. A more liberal ZOD dimension, 

sometimes in excess of 150 meters from the waste boundary, is provided 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 FDEPauthorized ZOD within which there are thirty-nine (39) groundwater monitoring wells that are 

sampled 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 beyond 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 promulgate 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 boundary 
103

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 point—that is, “Although the existing 

part 258 requirements 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 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. 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 follows:

• 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 otherwise.

• 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, can 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 major 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 disposal 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 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 the 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 however, 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 the 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 will 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 Statistics at Older Subtitle D Facilities. NIC The eGovernment 

Company, Indianapolis, Indiana. Available URL: http://www.environmentalcenter.com/articles/article1019/article1019.htm

In recognition of this, EPA should specifically allow the use of and reliance 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, intrawell 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 determine 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 basis 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 country 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 may 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 colloidal 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 

provide 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 measurement 
106

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.

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 facility. 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 operator 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 inserted 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 

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. 

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 impoundment 

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 submit all analytical and statistical data within 75 
107

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 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. 

Comment Number: EPA-HQ-RCRA-2009-0640-09282-15

Organization: North Carolina Department of Environment and Natural Resources

Commenter: Dexter 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 analysis 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 the 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 standard 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 rule 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 justify 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 position 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 determine 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 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: 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 Guidance 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

Commenter: R. Bruce Scott

Commenter Type: State Government

Comment Excerpt Text:

Kentucky would only support a variance or alternate design to normal statistical procedure if 
109

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 Mississippi 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 “nondetect” 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 chemical 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. ENVIRONMENTAL 

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 oversight 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 majority 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 EPA-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 bring 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 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-2009-0640-06410-61

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 parameters 

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 may 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 patterns 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 review 

proposals for alternative assessment monitoring parameters. 

Response: EPA generally agrees that it would be ideal to establish a monitoring program 
111

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 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-2009-0640-06529-50

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 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 
112

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.

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 

representative 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 primary 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 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 provide 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. 

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 particulate 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 field 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 cannot 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 measurement 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 when 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 cost. 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 detection 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 expected and allowed. EPA 

should explicitly evaluate whether to bypass the detection monitoring phase at coal combustion 
114

waste sites.

Response: The commenter incorrectly characterizes the Agency’s decision as one that balances 

environmental and human health considerations 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 

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 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. 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. 

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 significant 

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 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 

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 resultant 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 cannot 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 variability, 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 potential 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 significance 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 of 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 

contained 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 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 

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 reasonable 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 even 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 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. 

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 appropriate, 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 approved 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 detection 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 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 
117

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 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-2009-0640-09239-72

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 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.

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 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 
118

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 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-2009-0640-09536-8

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 facilities. 

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 establishes 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 

Appendix 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 are 
119

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 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. Alternatives to prescriptive 

monitoring parameters should be allowed 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 contaminant 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 demonstrate 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, 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 monitoring parameters 
120

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.

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.

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 mandatorilyinstalled 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 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 cases at levels exceeding EPA’s Regional Screening Level (RSL) 

of soil to groundwater and has been determined as potentially toxic if consumed concurrently 

with certain drug types.4

 

4 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 
121

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 report 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 leachate (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 combined 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 Registry Division of Community Health Investigations Atlanta, Georgia. 

www.atsdr.cdc.gov
122

desulfurization systems (see EPRI report 1012578, “Characterization 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 groundwater. 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 concentrations 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 conjunction 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, 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.

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 mandatorilyinstalled 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 monitoring. The Agency has also deleted sulfide because 

it occurs in groundwater only under strongly reducing conditions, and such conditions are rather 
123

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 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 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-2009-0640-06254-17

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 certain 
124

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 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 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-2009-0640-06260-146

Organization: Kentucky Department for Environmental 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 account 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 unit.

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, and 
125

sulfide - are unlikely to assist in determining whether CCR units 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 of 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 

have 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 

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 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.

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.
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 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. 

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 number 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, chloride 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 60: 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 wellattenuated. [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 wellattenuated 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 note 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 parameters 

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 hydrogen 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 oxidation. 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 coastal 

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 through 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 measurement 

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 parameter 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 example, 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 in 
128

groundwater at elevated concentrations, 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 with 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 these 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 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 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. 

With respect to TDS, it is also 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 contaminants or products of 

evaporative concentration in cooling ponds in facilities deploying closed-loop cooling. 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.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/S0048969713014836
129

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 Company, 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: EPA-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 

uncontaminated 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 monitoring 
130

— 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 

and 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.

• They 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 error 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 diagnostic. 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 specifically 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 parameters 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 detection 
131

monitoring. Because these parameters are rarely elevated in uncontaminated groundwater, it is 

inherently 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 identifying 

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 background 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, if 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-2009-0640-06410-62

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 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 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 
132

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-2009-0640-06416-60

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 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.

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 are 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 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 
133

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.

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 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 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.

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 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 
134

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 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-2009-0640-06723-26

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 than 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 words, 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 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. 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.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 detection 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 detection 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 proposed 

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 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/S0048969713014836
136

and thus establish background and long term data for Appendix IV parameters may preclude 

effective monitoring of their concentrations 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 approach 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 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 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-2009-0640-06819-33

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 groundwater 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 challenging 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 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 

determine 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.
137

Comment Number: EPA-HQ-RCRA-2009-0640-06827-16

Organization: Oklahoma Gas and Electric Company (OG&E)

Commenter: 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 indicator 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 enough 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 enable 

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 maximum 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 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 

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.
138

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 mandatorilyinstalled 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 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 cases at levels exceeding EPA’s Regional Screening Level (RSL) 

of soil to groundwater and has been determined as potentially toxic if consumed concurrently 

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/Midatlantic 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 Health and Human Services, Agency for 

Toxic Substances and Disease Registry Division of Community Health Investigations Atlanta, Georgia. 

www.atsdr.cdc.gov
139

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 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 broad 

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 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 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-2009-0640-06863-37

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 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. 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. 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 Waste 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 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 
140

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 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-2009-0640-06863-39

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). 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, 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 that 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 

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. 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 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 number of mandatorilyinstalled 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 unit 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 being 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 constituents 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 releases. 

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 warranted. 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.

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 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 
142

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 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.

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 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-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 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). 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 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-2009-0640-08218-82

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 to 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 Barium | 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, 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). 

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 management 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 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 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 
146

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-2009-0640-08226-44

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 of 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 kinds 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 constituents 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 diversity 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 list 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 from 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 these. 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 facilities 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 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 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 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 contaminants 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/S0048969713014836
148

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 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 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.

 
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-2009-0640-09427-17

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 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 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.

The 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 discussed 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 groundwater 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 structurally 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 expected 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. Therefore, 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 statistical 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 section 257.93 of the Proposed Rule.

EPRI is also currently developing a multi-tiered approach to assessing groundwater quality 
151

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, including 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 water (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 contaminants 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 groundwater 

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 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 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. 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 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 extreme range of natural 
152

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 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 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 certifications 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 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)(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 releases 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 impoundments 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, fluoride 

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 parameters, as addressed above). These primary 

constituents are the only materials EPA has found to contribute to adverse health effects; all 
153

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 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 demonstrate 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, 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 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.

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 
154

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 mandatorilyinstalled 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 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 cases at levels exceeding EPA’s Regional Screening Level (RSL) 

of soil to groundwater and has been determined as potentially toxic if consumed concurrently 

with certain drug types.9

 

9

EPA’s Regional Screening Level (RSL) Soil to Groundwater Supporting Table (TR=1E-6, HQ=1) May 2014/Midatlantic 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 Health and Human Services, Agency for 

Toxic Substances and Disease Registry Division of Community Health Investigations Atlanta, Georgia. 

www.atsdr.cdc.gov
155

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/hydologist; including data to 

demonstrate conditions under which such alternatives would be protective as well as 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 regulatory 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. Parameter 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 are 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, 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-2009-0640-06300-16

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. Hobson
156

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 technical 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 (under, 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 with “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 its 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).] Similarly, 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 standard 
157

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, 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, 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-2009-0640-06313-72

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 needed 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: Groundwater 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 establish 

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 seasonal 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 site 

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 desirable 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 conditions 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 time 
158

to obtain 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 localized 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 provision 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 contamination. 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 the 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 each 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 operator wants to demonstrate that the exceedance 

was caused by another source, they have the opportunity to demonstrate that.
159

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 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 or 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 

enough 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 assessment 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 source 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 generator 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 arc 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 otherwise specified indicator parameters "if 

the alternative parameters provide a reliable indication of inorganic releases from the [CCR] unit 
160

to the groundwater." /d. at 258.54(a)(2). Dominion agrees with USWAG's proposed revisions to 

the detection monitoring program and the assessment 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 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 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-2009-0640-06863-38

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 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, 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 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 
161

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 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 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 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-2009-0640-08853-13

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 impoundments 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 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 detection monitoring 
162

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 professional 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 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 

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 management 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 semiannually. 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. 

The commenter is also referred to Unit VI for a discussion 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 provides 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 

levels (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 concentrations 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) “Behavior of Metals in Soils”, EPA/540/S92/018). [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 demonstrated 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 detected 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 demonstrated 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 than 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 to 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 aluminum, 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 foregoing 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 conditions. 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 with 
165

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 contribute 

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 

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 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.

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.

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 
166

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 concurrently 

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 characterization 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 Program.

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 parameters 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/Midatlantic 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 Health and Human Services, Agency for 

Toxic Substances and Disease Registry Division of Community Health Investigations Atlanta, Georgia. 

www.atsdr.cdc.gov
167

sample collection (including the frequency, 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 procedures (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 should 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 concentrations 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 protection 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. Subsection (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: The 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 significant 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 owner 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 on 

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 internet 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 additional 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 inappropriate 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 broad 
169

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 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 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-2009-0640-06956-11

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 well 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 concurrently with certain drug types.11

 

11 EPA’s Regional Screening Level (RSL) Soil to Groundwater Supporting Table (TR=1E-6, HQ=1) May 2014/Midatlantic 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 Health and Human Services, Agency for 
170

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 sampling 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 

the 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 and 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.gov
171

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 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: 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 concurrently with certain drug types.12

Section 4.4.7.9.2 - EPA solicits comment on whether to allow options 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/Midatlantic 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 Health and Human Services, Agency for 

Toxic Substances and Disease Registry Division of Community Health Investigations Atlanta, Georgia. 

www.atsdr.cdc.gov
172

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 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 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 opportunities 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 discontinue. 

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 indicates 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 release. 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-specific 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 are 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 the 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 information 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 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 reasonable 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 

even 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. 

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 increased the minimum number of samples 

needed 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 have 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 statistical 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 compliance 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 based 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 larger 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, it 
174

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, which 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 MSWLFs. 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 statutory 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-world 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-site 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 needed 
175

in the regulations.

Frequency - Given the seasonality of shallow groundwater 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 has 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

Organization1:Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)

Commenter1: 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 similar 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 

characterization 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 have 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 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 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 discussion for the Agency’s 

rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface 

impoundments. The commenter is also referred to Unit IX of the preamble for a discussion on 

how EPA expects states to incorporate the CCR rules into state solid waste management plans.

Section 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 require 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 establish 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 part 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 array 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 proper 
177

consideration of corrective 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 for 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 exceptions.

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 there 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 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 

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 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, 
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 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 

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 

owner’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 Company, 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 proposed 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 clarification 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 period 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 in 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 professional 
179

judgment by qualified, licensed personnel. 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 assessment 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 

commences, 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 there 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 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 

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 statistically 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. Therefore, 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 resulted 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 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 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

Organization1:Earthjustice et. al.

Commenter1: 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 trees 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: Once the assessment of corrective measures 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 facility selects a remedy as soon as practicable and begins designing and 

implementing that remedy, so that releases to groundwater are addressed without unnecessary 

delay. There 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 appropriate 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 Wisconsin (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 for 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 decide 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 for 

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 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-2009-0640-06529-51

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 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 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 owner 
182

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 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 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. 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 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 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 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 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-2009-0640-06723-28

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 owner or operator should be 

afforded sufficient time - at least two consecutive sampling events - to demonstrate that the 
183

statistically significant increase is not due to error in sampling, analysis, statistical evaluation, or 

natural variability in groundwater 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 and 

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 or 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 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 or 

operator of the CCR disposal 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 most 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 groundwater 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 constituents 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 Company
184

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. 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 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 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 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

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 

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 whether 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 

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 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 MSWLF 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 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.

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 and 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

Commenter 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 impoundments 

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 selected. 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 “practicable 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, Section 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 liberty 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 would 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 that 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—does 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 interpreted 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), which 
188

expressly provides that EPA “may take into account the practicable capability of such facilities” 

in developing standards 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)

Comment 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-2009-0640-06260-151

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 Company
189

Comment Excerpt Text:

EPA should not require unreasonable alternative time periods 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 impossible 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 simple 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) attains

the groundwater protection standard as specified pursuant to §257.95(h); (3) controls the 

source(s) of releases so as to reduce or eliminate, to the maximum extent practicable, further 

releases of constituents in Appendix IV to this part into the environment; (4) removes 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 corrective 

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 protection 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 Preamble. In Maryland, we have observed sites that have had protective or 

remedial measures installed such as caps and groundwater pump-and-treat systems that were 
190

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 

Department, 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: The 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 were 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 professional 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 Type: 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 of 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-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. 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 horizontal 
191

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 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 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 as 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 monitoring 

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 approach 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 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. 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 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 state approval before they can install a 

groundwater monitoring system. Two years is a more reasonable timeframe in which to carry out 
192

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 of 

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 staffing 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. 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 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 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 which 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 approval 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 Regulation 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 address 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 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, determining 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 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 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 Solutions, 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 effective 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 groundwater, it is equally important that these complex systems be designed and 
194

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 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 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 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 systems: The existing state programs under Subtitle D address 

the definition of aquifers, design of systems, frequency of monitoring, monitoring methods and 

testing methods, and should include in the proposed rule. In addition, many states have certified 

laboratory 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. Therefore 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 be 

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 completed prior to posting. 

Assessment monitoring and corrective action procedures and timing exist under the individual 
195

state subtitle D programs. This section should refer to those programs or at least provide for the 

demonstration of alternative timing and 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 inconsistent. 

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. 

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-2009-0640-07534-9

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 accepts 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 of 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 acknowledges 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 issued. 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 

impoundments 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 continued 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 monitoring 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 the 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 above, we do not believe EPA has the discretion under RCRA to 
198

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.

Comment 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 criteria 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 over 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 of 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 (February 

1993), Docket ID No.: EPA-HQ-2006-0796.]. Identification of hundreds of historic dump sites 
199

will undoubtedly help to safeguard water supplies, especially since most older dumps are unlined 

and thus more likely to release harmful contaminants. Without this 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 

testing, 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 coal 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 from 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 systems 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-the-art disposal facility for nonhazardous industrial waste, municipal solid waste incinerator ash, and construction and 

demolition debris. For industrial waste disposal, the facility is equipped with a double composite 
200

liner with a dual leachate collection 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. All 

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 amended.

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 Excerpt 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.

Comment 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 the 
201

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 unlikely 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 operates 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 necessary, 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: EPA-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) and 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 underlying 

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 lowsulfur coal from the Powder River Basin. 

• There are groundwater 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 approximate 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. 

Discharges from these impoundments are regulated by NPDES permits. None of the above 
203

facilities are located within wetlands, fault areas, or seismic areas. 

Groundwater monitoring design and performance standards are very similar to the design and 

performance standards 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 exceedances 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 extremely 

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.

Response: 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 there 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 enter groundwater beneath the Landfill due to the limited infiltration through 
204

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 drinking 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 

leaching 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 accept 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 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-2009-0640-07533-48

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 Government
205

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 this 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 Number: 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 reports 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. (Cliffs)

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 

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 public. 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. 
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 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 top 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 waste 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 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 Natural 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 mine during 

2001 that was in bankruptcy 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 not 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 of dollars to excavate, transport, and dispose of the 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: Oklahoma 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 regulated community, consultants, and the general public were included. 

One outcome of that process was a revision to the rules for NHIW landfills to standardize 
207

requirements for those landfills. In Oklahoma, CCR is a NHIW and those landfills receiving 

CCR were required 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 

financial 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 proposed 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 door 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.

Comment 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 

Environmental 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 Utility 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. Fisher
208

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 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 regulation 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 generation 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 coalburning 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:

PacifiCorp’s coal combustion byproducts that are not beneficially re-used are disposed of in onsite surface impoundments and landfills. These surface impoundments and landfills are assessed 

through an extensive groundwater monitoring program. PacifiCorp’s surface 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 monitored 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 monitored 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 monitoring. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2011-0392-0255-2

Organization: North Dakota Department of Health
210

Commenter: Scott Radig

Commenter Type: State Government

Comment Excerpt Text:

As shown in the public record, while past groundwater impacts have occurred from preregulation 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 safety. 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, if anything, they have detected 

(35157); EPA requests more info on prevalence of GW monitoring at existing facilities 

(35133)

Comment Number: EPA-HQ-RCRA-2009-0640-06298-18

Organization: Tennessee Department of Environment and Conservation (TDEC)

Commenter: 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 transported 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 sites 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 two-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 impoundments 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 acknowledges 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 the 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 level of 
212

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 Attachment 6915.4: SWMU 57 Soil and 

Groundwater Investigation Report]

Response: 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 practices 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 

Department 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 impacts 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 that 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 Excerpt 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. Sites 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 (in contrast to 
214

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 Pollution Discharge Elimination System 

permitting process).

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2011-0392-0287-4

Organization1:Illinois Environmental Protection Agency (EPA)

Commenter1:John Kim

Commenter 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 Illinois 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 (Board) 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 

impoundments (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 plants. 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 inventory 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. Table 1 below 
215

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 infiltrate 

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 relating 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 wells to 
216

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 reclaim 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 concrete. 

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 scientific 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 LFs
217

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, operations, 

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 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-2009-0640-06011-1

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 groundwater 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 

subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is 
218

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 coal 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 owners 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 permitting 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.

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-2009-0640-06260-28

Organization: Kentucky Department 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 near 
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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 large 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: Confirmation 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/401/045/160.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 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-2009-0640-06298-10

Organization: Tennessee 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 Tennessee'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 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-2009-0640-06300-83

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 Company
220

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 uses 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 water 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 quality 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 drinking 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 boundary, 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).] Similar 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 additional 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 statutory 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, including 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 not 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 this 
221

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-2009-0640-06300-96

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 must 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 constituents 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 Earthjustice, 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 Earthjustice require leachate collection, while 17 require runon/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 impoundments 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. For 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 majority 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 

provide 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 30 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 mandatory, 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 located 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 discussed 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 unlikely 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 must 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 number 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 the 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

Required 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 regulations 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

Organization1:West Virginia Department of Environmental Protection (WVDEP)

Commenter1: 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 

downgradient 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 leachate 

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 disposal 

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 landfill 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 be 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 

surface 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 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 

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: Robert Stout on behalf of Dru Buntin

Commenter Type: State Government
225

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. Missouri 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 evaluation 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 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-2009-0640-06838-6

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 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 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-2009-0640-06872-18

Organization: State of Pennsylvania Department of Environmental Protection

Commenter: Todd M. Wallace
226

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 number, 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 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 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-2009-0640-06880-4

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 substantially

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 standards 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 the 
227

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.

Comment 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 Texas 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 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-2009-0640-06987-9

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 standardized 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 REMEDIAL 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 sampling 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 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-2009-0640-07533-21

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 regulatory definition they would be classified as 

surface impoundments. These two surface impoundments are excavated earthen structures and 
229

therefore are not subject to discharge due to a break in a dike or dam structure. Three of the 

permitted sites have liner systems 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 

existing 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 procedures 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 unit 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 specified 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 without 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 desulfurization 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 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 

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 public. 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 engineered 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 top 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 waste 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 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. 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 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. 

Response: The Agency acknowledges and appreciates the comment.

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 monitoring 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)
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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 permit 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 source(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 

water, 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 coalburning 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-2009-0640-09427-1

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 permitted 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. The 
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placement activities are spelled out in detail in San Miguel’s RCT permit, 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.

Comment 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 officer 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 

synthetic 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 groundwater 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 Department 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, ground 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 Supply 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 springs) 

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 ability 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-year 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-Monitored 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 leaking 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 program, 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 radioactivity 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 landfill 
235

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 issued 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. However, 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 

adjacent 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.) Inseparable 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 transformers 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, as 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 basic 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 offsite 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 monitoring 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 

Impoundments

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 Company
237

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 as “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 support 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 FDEP 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, although 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 liners, 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 forth 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 from 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 typically 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 compliance 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 significantly 

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 Agency 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 continues 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 footprint 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 contaminant 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 Landfill, 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 characteristics 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 toxicity D Lead: characteristics 14500+ times less 

than the maximum level concentration 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 Endangers 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 

Subtitle 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 regimen as evidence: Upgradient 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, cadmium, 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 ~ Downgradient groundwater 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 wells 
239

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, cadmium, 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 conductivity 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 construction 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 

management 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.”

Response: 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 groundwater 
240

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 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 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-2009-0640-11660_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 are 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 ash 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 monitoring 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, including CCRs, from the 

requirement to obtain a local land-use permit (called a Certificate of Designation), but these onsite 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 post-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 solid 

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 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- 20-102(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 Government
242

Comment Excerpt Text:

In Table 2, on page 26 of the EJ comments, it is noted that Colorado 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 

definitely 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 landfills. 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 can 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. Monitoring 

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 whatever 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 needs 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 Government
243

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 facilities 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 surface 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 Number: 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 "greenfield" 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 high-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 action 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-HQRCRA-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 regulations. 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 environment. 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 frequency 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 annual 
245

monitoring.

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 proper 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 groundwater 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 public 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 Table 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 existing 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 statutes authorize variances from DEQ rules, 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. The 
246

DEQ fully incorporates its comments to Table 2 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 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 the 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 cover... 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 failure 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 

and 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 public 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 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 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 proposed 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 Landfills 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 by 
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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 only a 

two-foot separation.

Table 19. Are Financial Assurances Mandatory for CCR Landfills?

The Report answers this question as "No" for Oklahoma by stating variances from financial 

assurance obligations are authorized; however, the Report is incorrect. Oklahoma 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. 

Table 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 herein. 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 hearings. 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 monitoring 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 federal 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 DEQ 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 regulations 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 CCRs, 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 grandfathering 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 required 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 ground 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-HQRCRA-2009-0640-6315] states that no ground water monitoring is required, using the flawed 
249

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-by-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 regulations 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 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 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. 28-29-23(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 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."
250

o GW monitoring is conducted at all existing coal ash landfills in Kansas

--Require composite liners for all new ponds: 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 

groundwater 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 present 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 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 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 Policy 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 hydrogeologic data. This term includes all hydraulically connected 

aquifers ."

--Require financial assurance for coal ash ponds: Report answer - No

o Incorrect . 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 assurance for closure and 
251

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. Industrial 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 the 

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 one 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 for 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 action, 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 variance 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 sitespecific 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 stormwater 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 assurance; 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 this 
253

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 Department 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 unit, 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 potential 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 site 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 alternative, 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 

requirements, 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 standards 
254

......

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 cover, 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 applicable; 

(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 activities 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 postclosure 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, and 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 demonstrates 

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. Earthjustice'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 Government
255

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 groundwater 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 Action 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 built 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 cover is required for all landfills (LAC 33:VII.711.B.2; 40 CFR 

257.3-8). 

5. Dust Controls 
256

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 requirements 

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); 

Louisiana'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 well 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.” See 
257

Appendix—Section D of docket number EPA-HQ-RCR-2011-0392-0084.] 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 enforcement 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 

represents 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 many 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 these 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 

fluctuating 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 exceed 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 continued disposal of wastes that cause groundwater contamination to exceed certain 
258

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 undetermined 

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.

Response: 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 

groundwater 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 monitoring wells. 

The regulations "... require a sufficient number of wells, installed at appropriate 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 both 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 Government
259

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 mirrors 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 mandatory 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 appropriate 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 eleven (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 solid 
260

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-2011-0392-0269-2

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.

Indiana's solid waste regulations' require semiannual ground water monitoring 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 required 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 in 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 is 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 

“grandfathered” 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 facilities 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 regulations 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 leachate 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. Although 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 Thamke

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 proposed 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 be 
262

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 questions 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 only 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 that 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 permits 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 require a bottom 

liner. Seven of those 11 States make a determination about requiring a bottom liner on a case-bycase 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 information 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 apply 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 requirements? 
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 requirements 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, groundwater 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 requirements 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 structural 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 stability 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 requiring structural stability monitoring on a case-bycase 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 surface 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 entities 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 well as: 

- impoundment design and engineering 

-leachate collection 

- gas collection 

- groundwater and leachate monitoring 

- financial assurance 
264

- 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 reported 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 reports 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 States 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 monitoring 

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 the 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 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 (in contrast to 

the raised structures used at the Tennessee Valley Authority facility). The outfalls from these 
265

ponds and from landfills are routinely monitored under the Missouri 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, 

including: 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 groundwater 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 and 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 Environmental 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 ponds 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 ponds 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 and 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 efforts 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 

surface 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, groundwater 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 operations 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 Mandatory 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 expansions 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 current 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 

incorrect. 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 monitoring 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 request.

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 Government
267

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 controls.

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 statistics 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 below 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 statement 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 

incorrect. 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 that 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 several 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-disposed 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 and 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 for 
268

this analysis. 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 states:

"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 ash 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 Washington’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 significant 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 inspections 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 ash 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 perpetuated 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 

landfills 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 only 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 demonstrate 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 natural 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 regarding 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 have 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 monitoring 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 landfills. 

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 groundwater 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 facility 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 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 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 believes 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 Florida'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 controls. When these facilities are closed, the owners are 

required to install appropriate 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 Maintenance Documentation
272

- 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 conditions 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 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: 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 landfill 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 Texas 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 well 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 landfills 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 

remain 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 projects 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 characteristically 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 way, 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

Organization1:Arizona Public Service Company (APS)

Commenter1: 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 

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 is 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 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 discharged 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 "...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 
274

and solid waste landfills. Arizona Revised Statutes § 49-241 .B 1. An aquifer is defined as "a 

geologic unit that 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." Arizona 

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 protect 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 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 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 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 surety 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 financial 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 Company
275

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, many 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. Pursuant 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 groundwater 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 landfills 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 appropriate 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 timetables 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 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 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

Organization: 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.

Response: 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 the 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 for 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 proposed 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 Department 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 required 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 management 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 failure 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 pollution 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 unpermitted and have not been inspected 
277

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, 

and 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 receiving 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 the 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

Organization1:Labadie Environmental Organization (LEO)

Commenter1: 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 nation 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 known 

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 Missouri 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. This 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

Organization: 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.ameren.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, burning 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. [Footnote 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 historically disposed of coal ash waste from all four plants at onsite 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 four plants:

[See original comment for the four plant chart.]

[Footnote 6: All information in this chart, except for the Generation column (see footnote 7) and 
279

Ash Generation (see footnote 8) is from May 24, 2009 and March 26, 2009 letters with 

attachments from 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 known 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 from 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 require 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 behalf 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 first 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 those 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 upgradient 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 Operating 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 1992 
280

NPDES permit renewal application, Ameren 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 to 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: 1992-02-27 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 

unlined 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 define 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.] 

- Groundwater 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, Roubidoux, 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 particularly 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 years 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 environment. 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 special 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

Organization1:Florida Electronic Power Coordinating Group, Inc. (FCG)

Commenter1: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 requirements 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 surface 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 to 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 status 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 Group
282

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 contamination 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 acknowledges 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 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 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 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-2009-0640-11074_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 contaminate 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 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 private wells to be 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 groundwater 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 impoundments, meaning that their failure will probably cause loss of life (USEPA, 

2009).

Response: The Agency acknowledges 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 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 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 companies 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, Part 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 the 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 protective. 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 that onsite impoundments are exempted. See our comment to Table 2 above.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2011-0392-0228-4

Organization: Virginia Department of Environmental Quality (DEQ)

Commenter: Jeffery Steers

Commenter Type: State Government
285

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 require 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 mandatory 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 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.

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 Association 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 to 
286

the EPA’s proposed 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, ASTSWMO 

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 

implementing 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 “State 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 

require 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 assurance, 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 guarantee 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 require 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 leachate 

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 gives 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 obscure 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 safeguards 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 could 

build.

The comments Earthjustice and others submitted in November 2010 in response to EPA’s 
287

proposed rulemaking (“Earthjustice 2010 Comments”) presented a thorough analysis of existing 

state regulations in 37 states, which states comprise over 98 percent 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 left 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 state 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 

submit 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 liners 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 leachate 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 examined 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 Comments 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 Document]

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 classified 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 facilities 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 specifically 

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 a 
289

regulation specific to coal ash impoundments. However, this does not mean they are not 

regulated. Under 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 

groundwater. 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 not 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.

Comment 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, State 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 Environmental 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 requests 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 “permit-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 the 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 the 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 Industrial 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 applies 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 

Equivalent 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 recommends 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 (DPRA 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 the 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 report (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 collection 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 

reflect 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 monitoring 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 the 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 Government
292

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 all 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)] Illinois EPA 

has a duty to collect and authority 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 management 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 management 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 would 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 erroneously conclude 

that we do not require monitoring 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 Act [415 ILCS 5/4(b)] Illinois EPA has a duty and authority to 
293

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, Section 11 of the Act (415 ILCS 5/11) describes part of the purpose of Title III, as 

follows:

"...assure that no contaminants are discharged 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 any 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)], 

respectively:

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 shall 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 further 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 allow 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, threaten 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 precluded 
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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 systems. 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

Comment 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 Sewage 

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 industrial 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 sufficiently 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 methods 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 used 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 require 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 to establish naturally occurring 
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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 Carolina 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 site, 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 load 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 challenged 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 Subtitle 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 Pearson
296

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 problems 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 leached 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 they 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 of 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. Locational 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; land 
297

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 issued 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

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1: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 and 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

Organization1:Zephyr Environmental Corporation

Commenter1: Paul C. Moore

Commenter Type: Other Company

Comment Excerpt Text:

I noted 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 zones 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 statute. 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 service 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 to 
298

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 geologist/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 section 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 selected technical provisions of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-03444-1

Organization1:Kansas Department of Health and Environment

Commenter1: 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 regulatory 

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 necessary 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 facilities 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 proposed 

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-sizefits-all conservative approach is unnecessary in areas where local conditions provide an adequate 

and preferred degree of natural protection.
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 to 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 waste 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 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-2009-0640-06128-13

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 Subtitle 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. Pike
300

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 directly 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 Prime 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 rules 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 many 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 "substantially 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 administered 

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 action 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 

regulatory 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 the 
301

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 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 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-2009-0640-06203-10

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 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 

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 is 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 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 discharged 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 that 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." Arizona 

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 protect 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 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 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 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 surety 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 financial 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 
303

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 Subtitle 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 

for 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 selfimplementing rule and in ADEQ's APP Program. In such a circumstance, APS could potentially 

be subject to a citizen suit enforcement action in federal court for alleged violation of the selfimplementing Subtitle D rule, and to a wholly separate enforcement action in state court for 

violation of the parallel 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 

duplicative 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 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 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 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.
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Comment Number: EPA-HQ-RCRA-2009-0640-06254-23

Organization: Sunflower Electric Power Corporation

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 methods, 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 regulators 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: EPA-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 disruptive 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 review 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 workload for states to 

implement these rules. Kentucky estimates the need for six to twelve additional person-years to 

implement these provisions.
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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 regulations. 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 years 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 surface 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 the 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 should 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 the 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 the 
306

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 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-2009-0640-06275-26

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. Finally, 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

Comment 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 regulation 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 

regulation.

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 reviews, 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 industry 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 requirements 

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 that 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 Department 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 state 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 strengthening 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 that 

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 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. 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 approaches 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 refers 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 obvious 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 which 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 for 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 address 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, which is a key 

question in deciding between Subtitles C and D. Rather, the Kingston incident resulted from the 
309

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 than 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 regulation 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. EPA 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 capable 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-specific 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 site- 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.] EPA 

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 32217.] 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 landfills 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 RCRA 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]grees 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 percentage 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 for 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 and 

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 with 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 standards 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 discussion on how EPA expects states to 

incorporate the CCR rules into state solid waste management plans.

Comment Number: EPA-HQ-RCRA-2009-0640-06300-88

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:

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 statespecific 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 liner 
311

systems 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 and 

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-2009-0640-06356-6

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 will 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 means 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 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-2009-0640-06409-9

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 experience, 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 selfimplementing regulations proposed 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 for 
312

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 landfills 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 to Matt Hale, EPA, dated April 1, 2009. 

Available at http://astswmo.org/files/publications/Positionpapers/ASTSWMO-CCB-letterattachments-v2.pdf]

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-2009-0640-06411-11

Organization: Alabama Department of Environmental Management (ADEM)

Commenter: Gerald 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 

resource 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 per 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 combustion 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 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-2009-0640-06416-71

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-implementing 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 RCRA Sub D selfimplementing 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 

implementation 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 major 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 revisions.

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 process. 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 indicates that any facilities that might be considered surface impoundments will 
314

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 specific 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 landfills, 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 technical 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 such 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 the 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 construction 

materials such as geosynthetic 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 incorporate 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 (though discouraged) from throwing anything they 
315

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 household 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 Indiana 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 additional 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 individual 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 cases. 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 standards 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 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-2009-0640-06723-19

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 structural 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. State 

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 

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.
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-state 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 regulations 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 required 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 new 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 Department of Natural Resources and Environment (DNRE)

Commenter: Liane J. Shekter Smith
317

Commenter Type: State Government

Comment Excerpt Text:

Additionally, any new regulations under Subtitle D should allow for a determination of existing 

state program adequacy 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 health 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 determined 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 years 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 to 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 

regulation, 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. County 
318

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 yards 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 both 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 adequate 

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 staffing 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 already 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 regulating CCR, it should be under a Subtitle D solid 

waste approach which will work in conjunction with existing state programs, not under Subtitle 
319

C as a hazardous material.

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-2009-0640-06844-5

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 that 

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 potentially 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 CCR 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 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-2009-0640-06846-6

Organization: Florida Department of Environmental Protection (FDEP)

Commenter: Richard B. Tedder on behalf Mary Jean Yon

Comment Excerpt 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 managing 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-RCRA-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 

existing 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-existing 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

Organization: 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 regulations 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 precipitation 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 associated 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)

Commenter: 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 in 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 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-2009-0640-07533-24

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 implementing 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 Quality 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 that 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 action 

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 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.
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 requirements 

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 water 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 given 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 authorization 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 solid 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 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-2009-0640-08218-24

Organization: Maryland Department of the Environment (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 Excerpt 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 solid 
324

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 technical 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 thirdparty 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 area 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 

making 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 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-2009-0640-08266-5

Organization: West Associates

Commenter: A. Gwen 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 can 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 of 
325

protection, depending on the area, 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 State 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 permitting. 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 Subtitle 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 

installation 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 Subtitle D option being 
326

promulgated has no provisions 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-2009-0640-08787-31

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 throughout 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, 

treatment, 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 national 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 responded "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 suit 

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 would 
327

voluntarily establish compatible State regulations. Specific to a citizen suit under the CCR 

proposal, the proposed RCRA Subtitle D requirements 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 ensures 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 Criteria 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 actually 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 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-2009-0640-08787-35

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 waste 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 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-2009-0640-08787-37

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 the 
328

self-implementing national minimum CCR disposal standards. In such a circumstance, 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 

demonstration 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 

MSW 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 CCR 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 documentation 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 clarification 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 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 applicability section of 

Unit VI contains a discussion of the status 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 association'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. Environmental 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 the 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 COMBUSTION 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 coal 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 combustion 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 regulatory 

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 2005, 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, the 

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 basis 
330

of sound technical criteria; and 

WHEREAS, the states have demonstrated 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 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 for 

regulating CCW as they are best suited to develop and implement 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 to 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 CCW 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 and 
331

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 CCR 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 continue 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 

of 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 state 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 require 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 reduced 

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 RCRA.

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 this 
332

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 necessary 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 proposal, 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 management 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 the 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 federal 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 EPA 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 also 
333

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 implement 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 permit 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 history 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 approve 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 minimum 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 landfill 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 regulatory 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 

properly 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 avoid 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 

implementation 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 Subtitle D option being promulgated has no provisions 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 state 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 under 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 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-2009-0640-09358-4

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 regulatory 

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 state 
335

regulatory agencies. EPA could develop a process 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 Subtitle 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 currently 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 expects 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 states 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. Second, 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 nearly 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 regulatory 
336

program 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 estimates 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 position 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 waste 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 

structural 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 method 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 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-2011-0392-0271-12

Organization: Association of State and Territorial 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 Failed 
337

In an elaborate evaluation, based in part on EPA’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 Territorial 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-mail 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: Association 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 wrote 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 necessary 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: 

“Pennsylvania’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 individual 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 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.
339

Comment 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 

mechanism 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

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: 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 desire.

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 

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 regulate 

CCR under subtitle D of RCRA 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.