November 19, 2010

Identification and Listing of Special Wastes; Disposal of
Coal Combustion Residuals from Electric Utilities Docket Attention Docket ID No., EPA

– HQ

– RCRA

– 2009

– 0640 Environmental Protection Agency 1200 Pennsylvani a Ave., NW Mailcode: 5305T Washington, DC 20460

Re: Comments on the proposed rule for Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities ( Docket ID # EPA HQ

- RCRA

- 2009

- 0640)

Dear Madam/Sir:

The Association of State and Territorial Solid Waste Management Officials (ASTSWMO) offers the following comments on EPA’s proposed rulemaking for the Hazardous and Solid Waste Management System; Identification and Listi ng of Special Wastes: Disposal of Coal Combustion Residuals from Electric Utilities , published in the Federal Register on June 21, 2010 (75 FR 35128).

ASTSWMO is an association representing the waste management and remediation programs of the 50 States, fi ve Territories and the District of Columbia (States). Our membership includes State waste program experts in the management and regulation of solid and hazardous waste.

The ASTSWMO Board of Directors established the CCR Ad Hoc Workgroup in January 2009 t o evaluate and respond to EPA’s proposed CCR rulemaking. Given the scope of the proposed rule, the Workgroup solicited a broad review by ASTSWMO members with expertise in various aspects of the proposal. The attached comments reflect the analyses and inp ut provided by the CCR Ad Hoc Workgroup; the Corrective Action and Permitting and Enforcement and Compliance Assurance Task Forces within ASTSWMO’s Hazardous Waste Subcommittee ; and the Beneficial Use and Municipal D Waste Task Force s within ASTS WMO’s Soli d Waste Subcommittee. In developing these comments, t he Workgroup also sought input and information from State waste programs. We note that individual State or Territorial waste programs will also submit comments to EPA based on their State program persp ectives and experiences in managing CCRs.

Please do not hesitate to contact me ( 334

- 271

- 7739 ) or ASTSWMO Executive Director Mary Zdanowicz (202

- 624

- 5351) if you have any questions or need any additional information.

Sincerely,

S tephen A. Cobb (AL)
ASTSWMO President 444 North Capitol Street, N .W., Suite 315 Washington, DC 20001 tel: (202) 624

- 5828 fax: (202) 624

- 7875 www.astswmo.org2 Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities ( Docket ID # EPA HQ

- RCRA

- 2009

- 0640)



## Comments of the

As sociation of State and Territorial Solid Waste Management Officials ( ASTSWMO )

CCR S HOULD 

## N OT 

## B E 

## R EGULATED AS A 

## H AZARDOUS 

## W ASTE

EPA proposes listing CCR as a “special waste ”

. The goal is to base the decision on sound science. However, the results of a review of the science that the listing is based upon are cause for concern. Specifically, the April 2010 Risk Assessment, the Damage Cases and the assumed invalidity of the Toxicity Characteristics Leaching Procedure (TCLP) are questioned below.



### R ISK 

### A SSE SSMENT
General comments

The Executive Summary of the draft April 2010 Human and Ecological Risk Assessment of Coal
Combustion Wastes and the August 2007 draft that preceded it state succinctly why the results are outdated and not pertinent to the rulemaki ng it is used to support.

August 2007 Draft Risk Assessment:

“ Composite liners, which are used in the majority of new facilities constructed after 1995, effectively reduce risks from all pathways and constituents below the risk criteria (cancer
and nonc ancer) for both landfills and surface impoundments. ”

April 2010 Draft Risk Assessment:

“ These results suggest that with a higher prevalence of composite liners in new CCW disposal facilities, along with practices to prevent co

- disposal of coal refuse wit h CCW, future national risks from onsite CCW disposal are likely to be lower than those presented
in this risk assessment .”

The proposed rule would govern the regulation of CCR land disposal facilities going forward and therefore the evidence used to sup port the rulemaking should be based on present conditions rather than those of the past.3 This and other observations about the Risk Assessment are susceptible to critique:

**•** As summarized in Tables ES

- 1 and ES

- 2, Composite

- Lined Landfills do not exceed an excess cancer risk of the accepted risk range of 1E

- 04 to 1E

- 06 or an HQ of 1 for the Groundwater

to

- Drinking Water Pathway (90 th % and 50 th %). EPA could write recommended standards and management practices for landfills to be composite

- lined and be ass ured the States would continue to sufficiently regulate these units under Subtitle D.

**•** As summarized in Tables ES

- 3 and ES

- 4, Composite

- Lined Surface Impoundments do not exceed an excess cancer risk of the accepted risk range of 1E

- 04 to 1E

- 06 or an HQ of 1 for
the Groundwater

- to

- Drinking Water Pathway (90 th % and 50 th %). EPA could write recommended standards and management practices for surface impoundments to be composite

- lined and be assured the States would continue to sufficiently regulate these

units under Subtitle D.

**•** As summarized in Table ES

- 5, Composite

- Lined Surface Impoundments do not exceed an excess cancer risk of the accepted risk range of 1E

- 04 to 1E

- 06 or an HQ of 1 for the
Groundwater

- to

- Surface Water Pathway (90 th %). EPA could write recom mended standards and management practices for surface impoundments to be composite

- lined and be assured the States would continue to sufficiently regulate these units under Subtitle D.

**•** As noted within the conclusions of the Executive Summary of the April 2010 Human and Ecological Risk Assessment of Coal Combustion Wastes , the results of the damage cases compiled by EPA suggest that with a higher prevalence of composite liners in the newer construction CCW disposal facilities, future national risks from on

- site CCW disposal are likely to be lower than those presented in this 2010 Risk Assessment. It should be acknowledged that EPA utilized 1995 data to perform this 2010 Risk Assessment and that EPA’s study of CCW chemistries and leaching behavior were not c onsidered in the main analysis phase of this 2010 Risk Assessment. EPA could, and has for other waste units like

H azardous W aste Combustors, set recommended design standards and management practices to be followed by the States under Subtitle D.

**•** Although EPA based the April 2010 Risk Assessment on 1995 data , Table 1

- 1 shows a much higher proportion of lined facilities (both landfills and surface impoundments) than the 1995 survey revealed. Please note, of those facilities surveyed in 2004

, only 3% curren tly had unlined landfills (down from 40% in 1995) and 0% had unlined surface impoundments (down from 68% in 1995). Statistically accounting for the great decline in unlined management practices from 1995 to 2004 lends a tremendous amount of support for ev en a greater decline from 2004 to 2010.

**•** Composite l iners, as modeled in this April 2010 Risk Assessment, effectively reduce risks from all pathways and constituents to levels below an excess cancer risk range of 1E

- 04 to

1E

- 06 or an HQ of 1 for both landf ills and surface impoundments.4 **•** Although the April 2010 Risk Assessment suggests the management of CCW in unlined landfills and surface impoundments could pose potential unacceptable cancer and non

cancer risk to human health and the environment, composi te liners greatly lower this probability. With a higher prevalence for composite liners in the newer CCW disposal
fac ilities, any future risk analyse s are very likely to be lower than those presented in this 2010 Risk Assessment (based on 1995 data).

**•** Con taminated groundwater that is transported to drinking water or discharged to surface waterbodies appears to be represented as the actual leachate concentration. No dilution
and attenuation was accounted for in the concentrations. This could result in a f alse positive potential risk.

**•** The different types of liners used show a significant difference in risks to hum an health and
the environment. The risk calculations for composite liners showed them to have no unacceptable risks. Since the data collection, many State s have turned their attention to installing these protective liners for newly constructed impoundments to manage the coal combustion waste and minimize future exposure risks to human health and the

environment.

**•** The receptor wells were randomly placed up to 1 mile downgradient from the edge of the waste management unit. This distance is likely to be greater for most scenarios. In addition, the leachate concentrations would be expected to have some dilution and attenuation by the time they reach ed the wells. Taking b oth of these factors into account could result in acceptable risks.

Response to EPA Information Request

Are there any additional data that are representative of CCR constituents in surface impoundment or landfill leachate (from lit erature, S tate files, industry or other sources) that EPA has not identified and should be used in evaluating the risks presented by the land disposal of CCRs?

ASTSWMO is not providing additional data, although its member States may do so. Rather,

ASTSWM O offers comments concerning the data used in the April 2010 Human and Ecological Risk Assessment of Coal Combustion Wastes (Risk Assessment) which is one of the bases for revising the 2000 determination, which was based on the earlier 1999 risk assessment (1999 Risk Assessment). There is enough uncertainty about the data used in the Risk Assessment that basing a decision on it as significant as whether CCR should be managed as a hazardous waste is questionable

.

The reliability of any assessment is depende nt upon the quality of the data used in the analysis. The Risk Assessment relied upon data from EPA’s 2002 CCW Constituent Database (Database) for
the screening analysis and the full

- scale risk assessment. The purpose of the D atabase is to5 characterize th e constituents in leachate from CCW land fills and surface impoundments. The Database includes the data from 50 sites and 10,000 individual samples used in the 1999 Risk Assessment, which was the basis for the 2000 Regulatory D etermination. An additional 110 sites and 25,000 additional individual samples collected after the 1999 Risk Assessment have been
added to the Database.

Generally, there is a greater chance of characterizing the attributes of a population when a larger number of samples of the popul ation are analyzed. For example, a survey of voter opinions is more reliable if the survey consists of 1,0 00 rather than 100 respondents. On the other hand, if the survey responses are based on varying phrasing of the question, the survey results would b e questionable. It would not matter how many people were surveyed if the quality of the question was flawed by rephrasing it throughout the survey.

The quality of the data in the Database that was used to characterize CCR leachate for the Risk

Assessmen t is questionable. Furthermore, much of the information needed to evaluate the source and quality of the data, such as information about the protocols used for sampling and analysis, is
unavailable. Therefore, it cannot be assumed that the characterizati on of CCR l eachate and its
risks in the 201 0 Risk Assessment is better than the 1999 Risk Assessment, even though more sample data w ere available.

Source of the data
The additional data in the Database used for the Risk Assessment were derived from dive rse

sources:

**•** Data submitted with public comments to EPA on the Report to Congress: Wastes from the Combustion of Fossil Fuels ( EPA, 1999) (RTC)

**•** Data submitted with public comments to EPA concerning the May 22, 2000, Final Regulatory Determination on Wast es from the Combustion of Fossil Fuels

**•** Data collected by and provided to EPA since the end of the public comment period on the Final Regulatory Determination

**•** Data identified from literature searches

The sources of data are listed in Attachment A

- 1 of the Risk Assessment. There are more than 60 data sources ranging from peer reviewed studies to a letter from an industry source transmitting laboratory results from 1991 for a single sample. It is not possible to determine how or where the sample was collecte d nor what QA/QC was used. See Dairyland Power Cooperative

, Letter to Wisconsin Department of Natural Resources. May 22, 1991. Available in EPA docket EPA

- HQ

RCRA

- 2003

- 0003 as document number EPA

- HQ

- RCRA

- 2003

- 0003

- 0111.

Quality of the Data Not only ar e the sources of data diverse, but some are not accessible for review or do not provide enough information to evaluate the quality of the data. As a result, it is virtually impossible to evaluate whether the sample results were validated. Information is not accessible to determine6 whether reported data was subjected to accept able means of validating the quality of analytical results for field collected samples, such as:

**•** collecting and analyzing sample blanks to detect and c orrect for sample contamination

**•** duplicate samples to assess reprod ucibility of analytical results

**•** samples spiked with the constituents being analyzed to determine extraction ef ficiency

**•** instrument calibr ation using reference materials

The National Academy of Sciences 1 recommended that wh en characterizing CCR leachate
characteristics “ background water samples should be analyzed for a complete suite of metals and metalloids potentially associated with CCRs (i.e., Ag, Al, As, B, Ba, Be, Cd, Cr, Co, Cu, Hg, Mo , Ni, Pb, Sb, Se, Tl, U, V, Zn) ”

. As noted in the report

, “ Arsenic is a naturally occurring element present in
the environment in b oth organic and inorganic forms

. ” It cannot be dete rmined whether the sample results in the Database were corrected for background levels of constituents. This casts another shadow of uncertainty about the quality of the data used in the Risk Assessment.

Another important aspect of assuring the reliability of a data set is correcting for extreme sample
results. Any outlying data (statistically higher or lower) should be identified and the final results should be adjusted accordingly. Failing to do so will skew the reported results. Eliminating outliers is particularly important when the 90 th percentile values are used to establish the characteristics

stu dy subject. In this case, the concentrations of constituents, such as arsenic in CCR leachate,
were based on the 90 th percentile values from the data derived from the Database (see
attachment A

- 3 in the Risk Assessment ).

The constituent data from the Dat abase that was selected for use in the Risk Assessment are listed
in Attachment A

- 2 of the Risk Assessment. The 90 th percentile concentration for each constituent
was determined and is listed in Attachment A

- 3. The 90 th percentile concentration for arsen ic in
leachate

, for example

, is 0. 394 mg/l

, which was derived from the 144 site s averaged leachate

measurements. The number of samples collected fro m each site varied widely from one to 195 per site. The fewer the samples that are included, the more the confidence that the sample results are representative of the leachate at a site decreases. One quarter of the results are based on a single sample from each site. Therefore, the likelihood that a single sample point is representative
of the leachate at a site cannot be evaluated. More than half of the resul ts are based on the average of three or fewer sample points. Again, t he likelihood that the results are representative

is remote

. In addition, the range of values is extreme

– the difference between the low and high

concentrations is three orders of magnitude (.001 mg/l to 1. 8 mg/l).

The means by which the data used in the Risk Assessment were selected is another uncertainty. Sample selection is a critical aspect of accurately characterizing a popul ation being studied. A proportional representation of population characteristics often requires random sampling and/or a carefully developed and executed sampling and analysis plan. As noted previously, the quality of
the data source used for the Risk As sessment, the CCR Database, is questionable. Reportedly, all CCR leachate data that was submitted to EPA, regardless of the source or quality, was entered in
the database. The Dairyland submission is an example

– results for one sample from an unknown7 so urce originally analyzed in 1991 using unidentified protocols. Random selection of data from the database would inevitably include worthless data. If the data were screened for quality prior to selection, it would not be a random sampling and would be bi ased, but no definitive criteria for such screening and selection have been presented. In either case, it does not appear based on the information provided that the data used in the Risk Assessment can be considered representative. In other words, the Ris k Assessment data selection is fatally flawed.

D ata forms the foundation of any study. If the quality of the foundation is not strong, that which it is supporting is weak. It is reasonable to ask whether it is appropriate to base a decision to
character ize CCR as a listed waste, which has so many serious implications, on a Risk Assessment that leaves so many questions about its quality unanswered

.



### V ALIDITY OF 

### TCLP I N 

### M AKING 

### CCR D ISPOSAL 

### D ECISIONS

General comments

EPA alleges that the TCLP is invali d for the evaluation of CCR . However, this view does not take

into account S tate waste program experience that CCR rarely fails the TCLP test a nd

, therefore

, does not warrant b eing managed as a hazardous waste. EPA argues that the TCLP single

- point pH
le aching procedure does not represent the pH conditions in CCR landfills

, which it asserts range from pH 5.4 to pH 12.4

. D ue to the alleged wide range of pH conditions in CCR landfills, EPA concludes that tests evaluating leaching potential at pH values typ ical of CCR disposal units should be used to determine if the CCR waste exhibits hazardous characteristics which require that the material be managed in a Subtitle C landfill. There are two bases for this stance: 1) National Academy of Science criticism o f the TCLP test; and 2) landfill field leachate data from EPA and EPRI studies which established the range of pH conditions expected to be found in actual CCR disposal
conditions.

In the proposal, a National Academy of Sciences (NAS) report is relied upon to support the statement that “Toxicity Characteristic Leaching Procedure (TCLP) that have generally been used may not accurately represent the performance of varying types of CCRs under variable field
conditions ” or “ actual conditions under which wastes are plausibly managed ”

. The implication, and the way the proposal has been interpreted, is that “ EPA states that considerable evidence has emerged indicating that the traditional test method, the Toxicity Characteristic Leaching [Procedure] (TCLP), alone is not a good indicator of the mobility of metals in CCW under realistic disposal conditions

. ” 2 The proposal language, while misleading, is correct. The interpretation is incorrect in a subtle but important way.

The NAS report concerns the beneficial use of coal ash in mines:

“ The reliance on single

- point batch leaching procedures, such as the TCLP, for prediction of CCR stability in mine settings has been widely criticized.”8 In fact, all discussion in the report about the appropriateness of TCLP r elates to the special conditions encountered in placing CCRs in mines. For example,

**•** TCLP does “not use leaching solutions that are representative of the large range of geochemical conditions likely to be encountered in mines ”

**•** “the committee recommends add itional research to continually improve and field

- validate leaching tests to better predict the mobilization of constituents from CCRs in mine settings ”

For the second prong of the argument

-- that pH ranges from 5.4 and 12.4 in CCR landfills

-- t he

propo sal relies on two studies to suggest that conditions in CCR landfills are variable.

“ Landfill field leachate data from EPA and EPRI studies were used to establish the range of pH conditions expected to be found in actual disposal. From this data set, and excluding the extreme values (below 5th percentile and above 95th percentile), a pH range of 5.4 and 12.4 was determined to represent the range of plausible management conditions (with regard to pH) for CCRs.”

The first study 3 used data from t he LEACH 20 00 database for six landfills that were operated by
coal

- fired electric utility power plants. The criteria 4 for accepting data in the database would not
be considered scientific. By admission in the report, “the search for data did not attempt to employ any statistical sampling approach. That is, the data are not necessarily a representative sample by geographic region, landfill type, or any other criterion. The database simply includes all of the readily available data that met the acceptance criteria. ”

The six combustion ash landfills were located in one State

, which cannot be considered representative of all landfills. The quality of the data, or lack thereof, is also a problem. From the
report:

“In analyzing the data, certain patterns of statisti cal outliers were discovered. These patterns were consistent with intermittent misreporting of analytical units. Therefore, a detailed analysis was undertaken to identify and correct data points in the data suspected of having this problem. ... Separate d ata tables have been included in the LEACH 2000 database representing the original and adjusted data. The data included in the combined data table in LEACH 2000 and used in this report represent the adjusted data.”

By any established scientific standard, it is completely unacceptable that a conclusion as sweeping
as to cha racterize the conditions of hundreds of CCR landfills could be draw n from a report based on such a small data set (six coal fired power plants in one State), in which there was no “attem pt to employ any statistical sampling approach,” and “which relied upon data with a pattern of statistical outliers” that was “consistent with intermittent misreporting of analytical units.” Such a conclusion would be completely unreliable.9 The purpose of the second study 5 was to characterize the s peciation of various metals in leachate from coal combustion sites. The study involved samples from 29 sites located around the country. Samples of landfill leachate were collected in interstitial waters. On ly 25 samples were analyzed, less than one per site. Collecting and analyzing a single site sample makes it impossible to determine if the results are reproducible and therefore representative of the site. There are many
variables that can affect the col lection and analysis of samples. It is essential to determine by comparison whether the sample result is an outlier or not. Beyond that, it is unlikely that a statistician would agree that results from only 29 samples should be used to draw definitive

co nclusions of such a grand magnitude.

T he results from 53 surface impoundment samples, less than 2 per site , were t he basis for establishing a pH range in CCR surface impoundments

. A significant concern in this case is that so many different sampling met hods were used for so few samples. Of the 53 surface impoundment samples:

**•** 8 samples were collected from wells screened in the coal ash

**•** 13 samples were collected from drive

- point piezometers or push point samplers

**•** 3 were seep samples

**•** 12 leachate samples we re collected from impoundments near the ash

- water interface

**•** 14 samples were collected from sluice lines or at impoundment outfalls

A basic scientific principle is that one would not expect to obtain comparable results for samples
obtained from different m edia, such as groundwater, outfalls, and the ash

- water interface. Another factor that is not accounted for is the wide pH range of soils at the sites. At one site, the soil pH ranged from 4.8 to 8.1. Soil pH is bound to have an effect on the water sample s that were collected, independent of the surface impoundments.

In summary, neither report provides a reliable scientific basis for the premise that CCR leachate pH values range from 5.4 and 12.4. That being the case, there is no basis for questioning th e validity of the TCLP test or the States’ cumulative experience that CCRs rarely test hazardous.10 

### D AMAGE 

### C ASES
General comments

The “proven damage cases” are one basis for listing CCRs as “special waste ”

. The cases are also
used to validate certain r esults in the risk assessment. The heav y reliance on the cases in the Regulatory D etermination requires that the identification of the “proven damage cases” be sound.

In reviewing EPA’s Coal Combustion Waste Damage Case Assessments , July 9, 2007, ( Case

Assessments ) it s eems that very little evidence (which the report refers to as a “test of proof” ) is required to classify damage to groundwater as a “proven damage case .”

Groundwater or surface water impacts are typically determined by geologists

, scienti sts and engineers during groundwater investigations or review of groundwater monitoring data from the
facilities. While a field inspection may lead to an investigation, i t is highly unlikely that damage could be verified in a field inspection alone. Ther efore, identifying a damage case based
on the “conclusions of a site report by a field inspector” without more to validate the information is not a rigorous test of proof.

Another source identified as acceptable is a scientific study that contains “inform ation on contamination of drinking water aquifer with contaminant levels which ex ceed drinking water
standards.” But, there is no requirement that a scientific study has determined whether the contamination is due to naturally occurring metals, other pote ntial sources of contamination or co

disposed materials. Damage cases based on such limited evidence are weak cases at best.

The Case Assessment s also requires “documented exceedances of primary MCLs or other health

based standards measured in groundwate r at sufficient distance from the waste management unit to indicate that hazardous constituents have migrated to the extent that they coul d cause human
health concerns.” This criterion is vague enough that the site in question need not be the source
of th e MCL exceedance. There is no requirement that a nexus be established between the disposal

unit and the contamination. Important factors need not be considered, such as other possible sources of contamination or naturally occurring levels of contaminants

. Site summaries in the Case

Assessment s may not provide enough information to determine whether any of these conditions
existed at the sites.

The age and nature of the disposal facilities in the 23 damage cases make them irrelevant because they do n ot reflect current land disposal practices to which the proposed regulations apply. Disposal “units” included five sand and gravel pits, two quarries and one lake impoundment. Half of the sites began operating in 1970 or before. At least six sites began operating in the early ‘50s. It appears that only three sites operated after 1990. Several sites were operated pre

- RCRA, for example, one site was managed from 1952 to 1969. Wastes in the co

- disposal facilities included: sewage sludge, tannery waste, ma terials from another landfill, yard sweepings, demineralizer regenerant, soil, co ncrete, brick and “other wastes ”

. These are hardly representative of the disposal units that would be regulated pursuant to the proposed rules.11 In addition, there is no evide nce about the quality of the data or that any assessment was made of other possible sources of contamination or naturally occurring background levels of contaminants,
such as arsenic or selenium.

EPA’s proven damage cases were assessed in a National Acad emy of Sciences 6 report:

Many of the damage cases ... involve older legacy sites that were developed under less rigorous regulations than now exist. Many were either slurry impoundments that drained to nearby surface waters or abandoned aggregate quarries that, by their very nature, were in highly permeable geologic environments. ... For example, landfills developed before the implementation of RCRA were not subjected to requirements for covers, compaction, liners, and other characteristics ... of RCRA complia nt landfills...

Other points from the NAS report:

**•** [EPA] did not independently investigate most damage cases

**•** EPA also acknowledged in the Regulatory Determination of May 22, 2000 (40 CFR Part 261) that it did not use a statistical sampling method and reviewe d possible damage cases in only a subset of State s

**•** It should be noted here that the landfills discussed in relation to damage cases are typically
not the well

- designed structures with covers, compaction, and other characteristics
discussed in the definitio n of landfills..., but rather are less engineered locations used to

store wastes

The value of the damage cases overall is questionable.

Response to EPA Information Request

The report of additional damage cases submitted to EPA on February 24, 2010 by the Environmental Integrity Project and Earthjustice.

Information submitted by environmental and public interest groups identifying sites as damage
cases has been less than reliable. For example, only 11 out of 59 alleged cases identified by such

entities in 1999 were determined to be “proven damage cases,” ev en using the ”tests of proof”. Over the past year, an environmental group labe led 70 sites as “damage cases” i n two reports: Out of Control: Mounting Damages From Coal Ash Waste Sites, Environmental Int egrity Project, Earthjustice, February 24, 2010

, and In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans And Their Environment , Environmental Integrity Project, Earthjustice and Sierra Club, August 26, 2010. Considering that the report s identify file reviews at State
environmental offices as “evidence ” for their claims, it is surprising how much of the reported information is incomplete, incorrect and/or misleading based on our discussions with the State representatives

. Certain patter ns of errors can be gleaned from the “ scientific review of each12 facility’s data,” familiarity with the sites and their groundwater data and impacts. Some of the categories of error include:

**•** claims of damage made without providing pertinent information

o monitoring well(s) not identified

o sample date not provided

o analytical data not provided

o hydro g eologic data not provided to support claims of seepage

o no data to support claims about source of disposal unit contents

o fail ure to report how “at

- risk” sources w ere identified

**•** assumptions made based on available, but inappropriate information

o assumptions about groundwater flow based on a topographic map rather than a groundwater flow map based on subsurface data

**•** data in State files made available for review con tradict claims in the reports

o State review of the data indicate no upward trends in contaminant levels

o historical groundwater data indicates that the facility has been and remains in compliance for a referenced parameter

o data reported from a limited number of monitoring wells for a short interval when monitoring has been ongoing for many years and no upward trends have been
established

o results of a reported data point are an anomaly when compared to all available
data

o claims that a facility does not have an approved groundwater monitoring system when monitoring has been conducted for many years and continues

**•** obvious errors

o claims that contaminants are leaking from facilities that no longer exist

o source of data incorrectly identified as a CCR facility

o se cond ary and non

- health related parameters (taste, odor or appearance) reported to support damage case claim

o well identified as source resul ting in an “at

- risk population” actually draws w ater from a deeper aquifer

**•** technical errors

o report values for naturally occurring constituents

o report data that is detected in both downgradient and upgradient wells

o ignored findings that contamination was from another source13 **•** status of the case inaccurately reported

o did not report that owner/operator agreed to install add itional monitoring wells

o owner/operator initiated a groundwater investigation in response to the new regulations

o reported that owner/operator discontinued a remedial measure that was actually ongoing

**•** other comments

o expert opinion is that the report di d not contain standard scientific documentation

o information provided by State program staff was misconstrued/misrepresented

o contacted multiple agency staff rather than establishing one point of contact14 

## S UBTITLE 

## C

– I MPACT ON 

## S TATE 

## P ROGRAMS

Response t o EPA Information Request

The potential of federal regulations to cause disruption to States’ implementation of CCR regulatory programs under their own authorities, including more specifics on the potential for procedural difficulties for State programs, and measures that EPA might adopt to try to mitigate these effects.

The impact of the Subtitle C option on landfill disposal capacity and State waste program resources has been grossly underestimated. Furthermore, the impediments that some States would face are
far

- reaching. Implementation of the proposal would be disruptive in a variety of ways.



### D ISRUPTION TO 

### S TATE 

### S UBTITLE 

### C DISPOSAL CAPACITY

Amount of waste generated According to EPA’s National Biennial RCRA Hazardous Waste Report, in 2007 (the most recent data published)

, 47 million tons of hazardous waste was generated by 16,349 hazardous waste generators. In contrast, more than 130 million tons of coal ash is generated by 495 coal

- fired electric power plants according to the proposal

.

Amoun t of waste managed off

- site According to the National Biennia l RCRA Hazardous Waste Report (b ased on 2007 Data), only 1.6 million tons of hazardous waste were disposed in off

- site landfills and surface impoundments. The proposal estimates that the amount of CCR managed in landfills and surface impoundments annually by 495 coal

- fired power plants is currently 75 million tons

, which is 30 times more than
current amounts of hazardous waste. The estimates of the amount of CCR that would be disposed
in off

- sit e hazardous waste landfills under the proposed Subtitle C option vary. An optimistic scenario, that beneficial use continues at its current rate of about 45% and that 70% o f disposed
CCR continues to be disposed on

- site 7 , would result in 22 million tons o f CCR disposed off

- site

- - 14 times more than the current rate of off

- site Subtitle C disposal

.

Disposal Capacity EPA’s current projected Commercial Subtitle C Management Capacity through 2013 is 34 million

tons. The estimate from a recent survey of Stat es indicates that there is only 31 million tons of currently permitted Subtitle C disposal remaining, 3 million less than the 2013 projection. There are only 14 States in which Subtitle C landfills are located. Thus, even with the optimistic scenario
for off

- site disposal, the available Subtitle C capacity would be consumed in about a year and a
half.

Consuming the commercial hazardous waste landfill capacity not only means that CCR would begin to pile up unmanaged at utilities, but also that the curren t 2 million tons of hazardous waste generated by industry and hazardous waste site remedial activities would also begin to accumulate15 on

- site. This could also bring a halt to Superfund cleanups that require off

- site disposal of
hazardous wastes as well as having a devastating impact on vital industries and facilities generating nearly half of the country’s electric power.

Transportation Issues The location of Subtitle C landfills is a problem as well. For example, the States in the Northeast Region of t he country generate 23 million tons 8 of CCR. There is only one Subtitle C facility in the Region and its remaining capacity is less than a half million tons. Using the most optimistic assumptions about the continuation of beneficial use and on

- site dispo sal of CCR, an estimated 8
million tons would have to be transported out of the Region each year. 9

Transportation issues associated with CCR designated as hazardous waste is another cause for

concern. According to EPA’s RCRA Hazardous Waste Report, 7 m illion tons of hazardous waste

w ere shipped in one year by 16,258 shippers. On average, 430 tons of hazardous waste are shipped by each generator each year. Using the most optimistic assumptions, 22 million tons of

CCR would be shipped by 495 coal

- fired power plants, or 44,444 tons per CCR generator. The average amount of Subtitle C regulated waste shipped by coal

- fired powered plants would be about 100 times greater than the average hazardous waste generator. The amount of CCR Subtitle
C waste that woul d be shipped would be concentrated in far fewer communities compared to current shipment patterns

. The impact on the communities that host the power plants, both in terms of transportation infrastructure and citizen concerns, including the potential for

e nvironmental justice and equity concerns, would be enormous.

Increasing the amount of Subtitle C waste that would have to be shipped off

- site by 20 million tons and concentrating the shipments to significantly smaller geographical locations would likely mean that there would not be a sufficient number of transporters to handle th e waste that must be disposed. Each State has rigorous standards for licensing hazardous waste transporters. This is yet another capacity issue, both in terms of the amount of CCR that can be transported for disposal
and the drain on State resources that would be needed to license transporters to accommodate the increased transportation needs.

Transportation issues could be ameliorated by regulating CCR under Subtitle D rather than Subtitle

C. The Northeast Region has approximately 1 billion tons of Subtitle D capacity compared to one half million tons of Subtitle C capacity. That is, for the conservatively estimated 8 million tons of CCR that would have to be disposed per ye ar, there is at least 125 years of Subtitle D capacity, compared with less than 2 months of Subtitle C capacity.



### S UBTITLE 

### C P ERMITTING Subtitle D programs are 100% State funded. By contrast, Subtitle C programs are supposed to be funded by federal ST AG funding with a 25% State match. The Subtitle C proposal neglects to address the requisite increase in STAG funding.16 The likely impact on State regulatory programs, if EPA selects the Subtitle C option, is a serious

concern. Significant efforts and resources would be needed to:

**•** meet permitting requirements under Subtitle C for operat ing units and post

- closure care

**•** evaluate closure plans for surface impoundments required to close by specified deadlines

**•** provide oversig ht of closure of disposal units

**•** implement and provide oversight of financial assurance requir ements for permitted
facilities

**•** implement facility

- wide corrective action requirements established by §3 004(u) and §3004(v) of RCRA

**•** oversee and enforce ancillary hazardous waste management requir ements applicable to generators of hazardous wast e at facilities generating CCRs

In the Regulatory Impact Analysis for the proposed rule, EPA identified 495 electric generating stations potentially affected by the rule. EPA has estimated that 300 landfil ls and 584 surface impoundments are used to dispose of CCRs at these power plants, and has stated that, additionally, a small number of power plants dispose of their CCRs off

- site. As noted above, even if the optimistic assumptions about the continuation of beneficial use and on

- site disposal were to come to fruition, disposal capacity issues would still pose significant problems.

This implies the need for a massive permitting effort to be implemented and overseen by the

States

– roughly a 20% increase i n the number of permitted facilities, based on information obtained from EPA’s RCRAInfo data base on 11/15/10. (The RCRAInfo “Selected Sites Count Report” with user selection criteria “National” for “Location” and “Active Status; Permit” for
“Handler Univ erse” provides a “total handler” figure of 2,363, which includes operating treatment/storage/disposal facilities and post

- closure facilities.)

The impact on individual States would be even more severe than these numbers imply, since the 495 power plants a ffected by the rule are not distributed evenly across the country. States with a disproportionate share of the plants (such as PA (34 plants), IN (26), OH (26), IL (25), NC (22), MI (22), MO (20), TX (19)) would face disproportionate challenges.

The vali dity of EPA’s assumption that, in most cases, CCRs would continue to be disposed on

- site under the Subtitle C option is questionable. Many existing coal burning power plants potentially affected by this rule are located in flood plains. F ederal and more stringent State specific siting requirements for hazardous waste land disposal facilities would , in many cases, significantly limit the locations where these facilities can be constructed. Hence, plans for development of regional disposal facilities/capac ity may need to be seriously considered. Should such regional facilities be developed, this would , when compared with on

- site management, cause a huge increase in over

the

- road and rail transportation of CCRs, leading to significant increases in associate d greenhouse gas generation, highway traffic safety issues and likely spillage of CCRs along haul routes

, potentially leading to the type of environmental damage that the rule is intended to prevent. Community issues and concerns related to siting of and transportation of CCRs through their17 communities to regional disposal facilities could also be significant. These aspects should be examined more carefully by EPA relative to the governing assumption of continuing on

- site CCR management and disposal befor e rendering a final decision on how to regulate CCRs.

If facilities resort to more use of off

- site disposal, additional State efforts would likely be required not only for permitting the off

- site disposal facilities, but for permitting storage units that facilities
would likely need to manage CCRs prior to shipment off

- site.



### E VALUATION OF 

### C LOSURE 

### P LANS FOR 

### S URFACE 

### I MPOUNDMENTS The proposed Subtitle C option also imposes strict deadlines on closure of currently operating surface impoundments. Considerable effort would be needed on the part of State s to implement this requirement for the estimated 584 surface impoundments affected by the proposal. Agency review of a closure plan for a surface impoundment entails considerable effort and specialized expertis e. Funding this effort is even more problematic than funding the permitting of operating units, since timely closure would allow a facility to avoid post

- closure permitting and the associated permit fees, and generator fees are not relevant for closing un its managing waste that is not yet regulated as hazardous or “special” waste.

In addition, the 5

- year timeline proposed for the phase

- out of surface impoundments appears unrealistically short. Apart from the difficulties State s would have in obtaining ad equate resources to implement the requirement, obtaining replacement disposal capacity to take the place of the
closed facilities would be a major challenge. The time required to develop, permit and construct new disposal sites for CCRs would be significa nt. The amount of disposal capacity needed could increase significantly if beneficial use of CCRs declines as a result of the stigma associated with regulation under Subtitle C.



### O VERSIGHT OF 

### C LOSURE OF 

### S URFACE 

### I MPOUNDMENTS State responsibilities with r espect to closing surface impoundments would not end with the approval of closure plans. Additional State resources would have to be expended in overseeing implementation of the approved closure plan, as well as oversight of the post

- closure monitoring

an d maintenance of the closed units. For facilities that do not meet closure deadlines, additional requirements concerning post

- closure permitting would take effect, requiring additional State effort. Considering the activities required, it is not unreason able to assume that State s would need additional resources at least as great as those needed to review and approve closure plans. Securing adequate funding for the effort is again problematic, with the exception of potentially having permit fees available for facilities required to obtain post

- closure permits. However, permit
fees would likely not be sufficient to fund the overall effort required.



### I MPLEMENTATION AND 

### O VERSIGHT OF 

### F INANCIAL 

### A SSURANCE 

### R EQUIREMENT If the Subtitle C option is selected, there would be more than 4 95 additional facilities requiring hazardous waste permits covering active CCR management and disposal, post

- closure care, and facility

- wide corrective action. Each of these permits would be subject to financial assurance requirements for closure, post

- closure, liability, and corrective action. Review of the18 documentation that facilities must provide to demonstrate compliance would require considerable staff effort on the part of State s, as would the day

- to

- day tracking of the permit h olders’ financial instruments to verify continued compliance. The sudden increase in the number of facilities required to obtain financial assurance could also have the secondary effect of driving up the cost of financial instruments for currently permitt ed facilities, since there would be a spike in demand for letters of credit, insurance, bonds and other acceptable instruments. There is also concern that, given the current condition of financial markets, adequate financial assurance through third partie s may simply not be available at a reasonable cost to meet the increased demand.



### I MPLEMENTATION OF 

### F ACILITY



### - W IDE 

### C ORRECTIVE 

### A CTION 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
di fficulties 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 37 46 facilities 10

. Requiring facility

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

activities at a facility are at least as resource intensive for the oversight agency as issuing an
operat ing or post

- closure permit

. C orrective 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 State s were unable to obtain resources to hire staff to implement the newly imposed mandates.

Apart from the staffing and resource issues raised by the proposa l, 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 whet her 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 particu larly contentious between the regulatory agency and the facility, requiring even greater agency
resources than normal.



### CCR Inspection and Enforcement The proposed CCR Rule under RCRA Subtitle C would have significant impacts on the hazardous waste complia nce and enforcement programs. While States have the expertise and tools available to them to evaluate the regulated universe upon implementation of the CCR under Subtitle C, compliance and enforcement programs would be facing a significant increase in th e number of Treatment, Storage and Disposal Facilities ( TSDs ) and Large Quantity Generators ( LQGs ) which19 would need to be inspected. These staff and program commitments would need to be addressed during the development of program agreements between the States and EPA.

Industry would experience significant issues with the storage and accumulation of CCR materials at their point of generation. Currently, disposal capacity is primarily limited to existing non

- Subtitle C landfills or impoundments. As tho se facilities close due to new regulatory requirements, disposal
would become a tremendous new challenge. Siting new hazardous waste facilities is an extremely long and arduous permitting process with uncertain outcomes. In the event industry cannot find or site alternative disposal capacities and the beneficial uses of these materials becomes more limited due to fear of liability, there may be no choice other than on

- site storage which may consume available capacity at some locations. Further complicati ng the matter would be scenarios where materials are being speculatively stockpiled on

- site for the claimed purpose of reuse under
Beneficial Use Determinations

, potentially circumventing the Subtitle C storage requirements. An enforcement program cannot operate effectively if there are not viable options for a facility or industry to comply.

The States have major concerns with the proposed dual regulatory scheme where CCR is a special waste when destined for disposal, but is a Bevill Exempt material wh en destined for reuse, as envisioned in the proposed Subtitle C option. This proposed dual regulatory scheme clearly illustrates the fundamentally flawed approach of regulating CCR as a hazardous waste for disposal while simultaneously authorizing broad e xempt beneficial uses. Clearly CCR does not meet the established federal criteria defining a hazardous waste and should not be regulated as a hazardous

waste.



### O VERSIGHT AND 

### E NFORCEMENT OF 

### A NCILLARY 

### H AZARDOUS 

### W ASTE 

### M ANAGEMENT 

### R EQUIREMENTS EPA pays insuf ficient attention to State efforts that would be required to implement the additional hazardous waste management requirements that would be imposed on CCR generators and transporters under the Subtitle C option. The Subtitle C option would result i n a sig nificant increase in the LQG universe. It is not unreasonable to expect that EPA would designate this sector as a special priority for compliance evaluations, requiring significant effort on the part of State s and possibly diverting State resources from m ore pressing priorities. The enormous volumes of waste represented by CCRs would also strain the resources of State s that actively review hazardous waste manifest information, possibly requiring additional staff and/or equipment.

It is not clear that imp osing these requirements on CCR generators is addressing a demonstrable problem. The principal justification that EPA uses in advocating for Subtitle C regulation involves damage cases associated with disposal. None of the cited incidents involves manage ment of CCRs before the point of disposal. In fact, EPA’s decision to maintain the exemption from being regulated as hazardous waste for CCRs that are beneficially used leads to a contradictory state of
affairs where the exact same material would face rad ically different management standards while

on

- site at the point of generation up to the point of final disposition

, depending on what the ultimate disposition of the material is to be.20 A similar contradiction exists with respect to CCRs destined for disp osal that a re generated by
facilities EPA has elected not to regulate under the proposal (i.e., non

- investor owned and non

municipal coal burning utilities not falling under NAICS code 221112). In this case, identical materials are made subject to radical ly different regulatory requirements, based only on the type
of generator. This contradiction is perhaps manageable for CCRs managed and disposed on

- site at the generating facility; however, it would be problematic and confusing for regulators, waste

mana gers, beneficial users, and especially the public for materials managed and disposed off

- site or beneficially used.



### S UBTITLE 

### C F UNDING 

### S HORTFALLS Subtitle D programs are 100% State funded. By contrast, Subtitle C programs are supposed to be funded by fed eral STAG funding with a 25% State match.

EPA maintains, without supporting documentation, that “... most States should be able to address any [funding] shortfalls through hazardous waste generator or disposal fees.” This statement
reveals an insensitivit y on the part of EPA to the current fiscal climate in which States are operating. Roughly 25% of the States do not impose such fees, based on a survey conducted by the U.S. Army Corps of Engineers

. 11

It must be noted the effect of an increased workload under the Subtitle C scenario could impact States differently depending on how agencies are organized and funded. On one end of the spectrum is a State that has the ability to use Subtitle D or Subtitle C full

- time equivalent (FTE) employees interchangeab ly and could draw on agency resources as needed to accomplish the additional workload for a CCR Subtitle C program. In that State, waste management fees directly support the waste program. On the other end of the spectrum are States in which the situatio n is more distressing. These States have indicated that if the Subtitle C approach is adopted, the State would not have the resources to implement the program. Legislatures are reducing FTEs to address general fund budget shortfalls. In many States, fee s go to General Revenue and are not directly used to support the program.

Even in States that impose such fees, the current political climate frequently causes “fees” to be characterized as “taxes” by small

- government advocates, complicating efforts to us e fees as a funding source. Even if adequate funds are available through fees, State legislatures are often reluctant to increase the size of regulatory agencies. Consequently, even in States with a dedicated funding source, the need to obtain legislativ e authorization to hire additional staff can be a significant barrier to implementation efforts.

An additional complication is that revenues that States obtain through fees are sometimes required by State law to be deposited in general revenue accounts ra ther than dedicated accounts restricted to particular purposes. There is no guarantee that such funds would be made available for implementation of a CCR regulatory program.21 In some cases, the authority that States have to charge fees is limited to fees on hazardous waste generation or disposal. The rule proposed by EPA would regulate CCRs as a “special waste” rather than a hazardous waste, and therefore CCRs may not be subject to a hazardous waste fee. Addressing this situation could require legislati ve changes, which can be a difficult and uncertain proposition.

Even if classified as a “hazardous” as opposed to a “special” waste on the federal level, some
States have Bevill

- like exemptions under State law that currently prohibit CCRs from being
class ified as “hazardous waste”, thus preventing collection of fees on this material as hazardous waste unless and until those State laws are changed.

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 FTE s would be needed just for per mitting. 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 1 , the Subtitle C option could cost twice as much as the Subtit le 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 installat ion 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 nee ds.



### A DDITIONAL 

### I MPEDIMENTS EPA’s proposed rules for disposal of CCRs in hazardous waste landfills represent only one aspect of the process for approving Subtitle C facilities. Permitting hazardous waste facilities may be conditioned upon the applicant me eting additional State or local requirements or may even be prohibited.

Two States have statutory prohibitions 12 against hazardous waste landfills. In another State, permitting hazardous waste landfills is prohibited by a court injunction. In some cases , siting hazardous waste landfills may be prohibited under certain circumstances such as certain geological22 conditions 13 , whether there is another hazardous waste treatment facility in the county 14 or proximity to inhabited areas 15

.

States face a variety of hurdles that preempt conducting certain steps in the permitting process, such as technical review of an application. Requirements that precede issuance of a permit by a State environmental agency may include:

**•** review by legislative oversight committees

**•** le gislative approval

**•** local public hearings

**•** approval by local and/or Sta te siting boards or commissions

**•** environmental and health impact assessments

**•** issuance of a certificate of public necessity

State or local zoning and siting requirements can be prohibitive ly restrictive, so much so that one State noted, “there have been no successful attempts at siting any type of new RCRA C facility since inception of the RCRA program.” Another State concluded that “location standards would impede the permitting of CCR RC RA C facilities given current locations of power generating plants.”

Direct involvement in the decision making process by local governments and citizens may be required. For example, Massachusetts’ law 16

**•** negotiating the detailed ter ms, provisions, and conditions of a siting agreement to protect the public health, the public safety, and the environment of the host community, as well as to promote the fiscal welfare of said community through special benefits and compensation requires the establishment of a Local Assessment

Co mmittee which shall include “four residents ... three of whom shall be residents of the area of the city or town most immediately affected by the proposed facility.” The powers of the
committee on which the citizens sit include:

**•** entering i nto a nonassignable contract binding upon the host community, and enforceable against said host community in any court of competent jurisdiction, by the decision to sign a siting agreement pursuant to section thirteen of this chapter

Connecticut law 17

"Community environmental benefit agreement" means a written agreement entered into by a municipality and an owner or developer of real property whereby the owner or developer agrees to develop real property that is to be used for any new or expanded affecting facility and to provide financial resources for the purpose of th e mitigation, in whole or in part, of impacts prov ides for an environmental j ustice review which must include “meaningful public participation” and “community environmental benefit agreement. " “ Meaningful public participation" means (A) residents of an environmental justice community have an appropriate

o pportunity to participate in decisions about a proposed facility or the expansion of an existing facility that may adversely affect such residents' environment or health; (B) the public's participation may influence the regulatory agency's decision; and (C ) the applicant for a new or expanded permit, certificate or siting approval seeks out and facilitates the participation of those potentially affected during the regulatory process; and23 reasonably related to the facility, including, but not limited to, impacts on the environment, traffic, parking and noise.

While public participation is a vital aspect of the process, including citizens in th e decision making process when they have a valid and vested interest would delay the process and require a significant investment of State and local government resources. There is the added concern that citizens may be unduly alarmed by the prospect of ha ving a CCR hazardous waste facility in their community.24 

## S UBTITLE 

## D

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 pre sent 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 Subti tle 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 t he 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 we re 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, 4 7 out of 47 States responded “yes”.

EPA’s proposal raises concerns regardin g the reliance of RCRA S ubtitle D on citizen suit enforcement authority given that State s 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 enforceab le 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 State s would voluntarily establish compatible State regulations. Specific to a citizen suit under th e CCR proposal, the proposed RCRA S ubtitle 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 pro vide notice to the State environmental agency ensures public access. These requirements establish a substantial basis for
both citizens and those State s without equivalent State requirements to successfully enforce under RCRA citizen suit authority. This is much improved ove r 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 n o t require the owner or operator to documen t compliance, the proposed RCRA Subtitle D rules are actually useful towards developing a citizen

suit.

It is presumed that State programs would not regulate CCR surface impoundments pursuant to the Subtitle D proposal. In many States, the authority to r egulate 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 coo rdinate with the enforcing entities to require that steps are taken to protect
human health and the environment. This high level of involvement by State waste programs is25 good evidence that if national waste management standards for CCR were promulgated, States would adopt those standards just as they have adopted the Part 257 standards.

Despite the concerns expressed in the proposal, the State enforcing entities in 42 out of 42 States have the authority to require remediation. The majority of State age ncies 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:

• imp oundment design and engineering

• leachate collection

• gas collection

• grou ndwater and leachate monitoring

• financial assurance

• post

- closure care and mainte nance

• removal

• replacement of water supply

In essence, EPA should continue t o build upon existing State programs through use of the Subtitle D approach. The Subtitle D approach for solid waste management has existed since 1979 without significant programmatic problems being identified by EPA. State programs meet or exceed the 40 CFR part 257 national standards for solid waste disposal facilities. In many respects, many State programs already meet or exceed much of the EPA proposed CCR national standards. Based upon the history of implementation of the solid waste program, u pon adoption under Subtitle D,
national CCR standards would be established quickly and nationwide

, allowing State s to continue
enforcement under their State regulations with the ability to file citizen suits where State enforcement authority is limited. EPA s hould work directly with those State s with limited State enforcement to support those State s ’ voluntary enactment of authority and adoption of compatible enforceable State requirements.

ASTSWMO urges EPA to work with State programs regarding implementat ion of Subtitle D CCR minimum standards. The following identifies several implementation issues that should be considered as well as responses to some of EPA’s specific requests for comment:

1. As currently proposed, an owner or operator of a CCR disposal f acility 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 self

- implementing national minimum CCR di sposal 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 State s wonder if EPA would establish a mechanism by which EPA acknowledges a
demonstration that a State permit program meets or exceeds th e federal minimum CCR
standards. Such mechanism should accommodate regionally appropriate State standards.26 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 lan dfills. 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 MS W 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.

4. When State regulators were rece ntly asked whether there was a preference for Subtitle D or the Subtitle “D prime” option, 42 State responses showed no overall preference. States were about equally split among the choices: Subtitle D approach, Subtitle “D prime” option, and no preferenc e.

5. EPA broadly solicits comment on the approach of relying o n 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. AS TSWMO notes that many States require certifications by appropriate registered professionals 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. ASTSWMO understands the value of such certifications and support s the proposed requirement.

6. EPA asks whether the Subtitle D option, if promulgated, should allow facilities to use alternative designs for new disposal units, s o long as the owner or operator of a unit could obtain certification from an independent registered professional engineer or hydrologist that the alternative design would ensure that the appropriate concentration values for a set of constituents typical of CCRs would not be exceeded in the uppermost aquifer at the relevant point of compliance (i.e., 150 met ers from the unit boundary down gradient from the unit, or the property boundary if the point of compliance is beyond the property boundary). ASTSWMO wou ld support allowing facilities to use alternative designs. Such flexibility would certainly be warranted if a State required or approved design differs from the federal requirements, yet is demonstrated to provide equivalent or greater performance.

7. EPA asks whether there could be homeland security implications with the requirement to post information on an internet site and whether posting certain information on the internet may duplicate information that is already available to the public through the St ate. ASTSWMO would defer to the expertise of those specializing in homeland security to27 identify specific information with security implications. Many States do post basic permit and facility information on State websites now.

8. EPA asks about the effecti veness of annual surface impoundment assessments in ensuring the structural integrity of CCR surface impoundments over the long term. ASTSWMO supports the requirement that an owner annually assess the structural integrity of CCR surface impoundments. Gen eral experience is that requiring owners to periodically evaluate and document the condition of their facilities (rather than rely solely on regulator inspections) provides some assurance that owners are pro

- actively identifying potential
issues and the ne ed for general maintenance. This allows an owner to take preventive and corrective action when it is most easily and cost

- effectively implemented.

9. EPA asks whether surface impoundment integrity should be addressed under EPA’s National Pollutant Discharg e Elimination System ( NPDES ) permit program, rather than through the development of regulations under RCRA. ASTSWMO notes that t he NPDES permit program appropriately focuses on effluent discharge limits and monitoring. Facility design and structural inte grity would be a significant and unrelated addition to the NPDES permit program. Any surface impoundment integrity should be linked to the facility design requirements under RCRA Subtitle D.

State dam safety authority, dam safety expertise, and associate d regulatory programs are often not housed within State solid waste disposal program or water pollution program s

. Likewise, State dam safety programs are not limited to disposal facilities and broadly regulate dams and levees with the guidance of several federal agencies. ASTSWMO understands that that the Association of State Dam Safety Officials will be sub mitting comments and urges EPA to fully consider their comments

, including incorporation of federal dam safety guidelines rather than MSHA dam safety guidelines.



### F INANCIAL 

### A SSURANCE

EPA broadly solicits comments on whether financial assurance should be a key program element under a subtitle D approach, if the decision is made to promulgate regulations under RCRA subtitle D.

ASTSWMO s upport s financi al assurance as a key program element under the Subtitle D approach.28 

## B ENEFICIAL 

## U SE



## – G UIDANCE 

## , N OT REGULATION

Response to EPA Information Requests

Whether it is necessary to define beneficial use better or develop detailed guidance on the benefici al use of CCRs to ensure protection of human health and the environment, including whether certain unencapsulated beneficial uses should be prohibited.

ASTSWMO objects to EPA developing regulations for the beneficial use of CCRs. EPA appears
undecided wh ether it should use Subtitle C, Subtitle D or TSCA as the regulator y approach for
beneficial use. T he use of any of these regulatory options would be unnecessary and extremely burdensome on State beneficial use programs. Many States already have regulato ry programs in place for reviewing beneficial use proposals and other States are in the process of developing them. Due to the variability in beneficial use proposals, States need flexibility in reviewing them and a federal regulatory program would severe ly hamper t his process. Rather, it would be very helpful to States if EPA focused on developing guidance for the review and approval of beneficial use projects. EPA has resources and technical expertise for research and development that exceed

many State s' capabilities and would be able to provide great assistance if the focus were on the science of beneficial use rather than simply seeking to regulate it. This beneficial use guidance
could address matters such as:

**•** Leaching Tests

- States need more ass istance deciding what leaching test protocols would be appropriate for beneficial use projects. The goal here is to develop reasonable predictors of possible environmental impacts, based o n the likely exposure of CCRs if a parti cular beneficial use projec t is approved. This would help States make these decisions. EPA is already doing much helpful work along this line with the "Decision Support Tool for Materials and Waste Management" by Thorneloe, et al.

**•** Risk Levels

- It would be helpful if EPA develope d acceptable risk

- based concentrations of contaminants in CCRs for various beneficial use scenarios. For example, what concentrations would be acceptable for industrial scenarios but not residential? What concentrations would be acceptable for residentia l use scenarios? What concentrations would be acceptable for land application of CCRs in agricultural applications?

**•** Guidance for Use

- It would be helpful if EPA developed guidance on what uses of CCRs are acceptable and which ones would be a greater pot ential risk to human health and the environment. For example, is a highway ramp constructed with CCRs a greater risk than using CCRs in a highway sub

- base? It may be helpful to have guidance on how to properly monitor field applications to ensure there a re no significant impacts.29 **•** Expand the Use of the Industrial Waste Management Evaluation Model

- EPA has developed a very good stochastic model called the Industrial Waste Management Evaluation Model (IWEM). It is designed primarily to help evaluate the t ype of liner system that would be appropriate to control wastes in land application, landfills, surface impoundments and waste piles. It would be helpful if EPA expanded this model to be more useful to States in evaluating beneficial use proposals. For e xample, could this model be adapted for road sub

- bases or road ramp applications? The model should also be modified to allow the user to set the point of compliance distance to values other than the model
default of 150 meters.

**•** Expand and refine EPA’s ex isting Guide for Industrial Waste Management . According to EPA, that Guide was designed to protect groundwater, surface water and air resources
under an industrial Subtitle D

- like industrial waste program. As technology develops, the guidance can be revi sed. It would be more efficient to revise these guidelines now rather than wait for regulations to be finalized.

If EPA determines that regulations are needed for the beneficial use of CCRs, should EPA consider removing the Bevill exemption for such uses and regulate these uses under RCRA Subtitle C, develop regulations under RCRA Subtitle D or some other statutory authority,
such as under the Toxic Substances Control Act?

ASTSWMO agrees that EPA should develop recommended practices and protocols for be neficial

uses

. However, we strongly recommend against developing regulations for the beneficial use of

CCRs. As stated previously, we believe it would be very helpful to States if EPA focused on developing guidance for the review and approval of benefici al use projects. Since the Bevill amendment, States have fine

- tuned their programs and increased their scrutiny of the beneficial
use of CCRs. These programs evaluate the variability in constituent concentrations, site conditions and operational procedur es and ensure that appropriate regulatory controls are used. A “one

- size fits all” federal regulation would compromise these efforts . It is unclear why EPA is now considering regulating CCR under Subtitle C instead of the current Subtitle D

- like EPA guid elines, considering the physical and chemical characteristics of CCR present very little potential to adversely affect human health and the environment, compared to many other residual wastes.

However, if EPA decides regulations are needed for beneficial use of CCRs, then it should regulate
them under Subtitle D, and not Subtitle C or TSCA. Based upon physical and chemical characteristics, CCRs are no more a threat, and more often less a threat, to human health than
other Subtitle D waste streams. It is illogical (and an inefficient use of limited resources) to specifically regulate waste streams that pose less human health threat as Subtitle C waste. Rather,
proper management c ould be accomplished under Subtitle D authority.

As noted previously, ASTSW MO recommends EPA work on developing guidance to help States with their beneficial use decisions rather than develop regulations to address use.30 Basis Based on the concentration and toxicity of constituents in CCRs from the data submitted with
ASTSWMO’s surveys, the beneficial use of CCRs do not warrant regulation but rather effective guidelines for the following reasons:

1. TCLP results consistently show that CCRs do not leach constituents at levels above
hazardous waste criteria

, therefore

, CCRs should n ot be considered in the realm of
hazardous waste.

2. Other Subtitle D waste streams may pose more threat to human health than CCRs. For example, nonferrous foundry sand typically contains total metals concentrations above action levels acceptable for indus trial use. CCRs do not typically exceed industrial use action levels and often meet action levels for unrestricted use. It is illogical to specifically regulate the beneficial use of a less harmful waste stream.

3. Existing Subtitle D

- like guidances exist today. It would be more efficient to update these than wait for regulations to be finalized.

Whether it is necessary to define beneficial use better or develop detailed guidance on the beneficial use of CCRs to ensure protection of human health and the environment, including whether certain unencapsulated beneficial uses should be prohibited.

ASTSWMO recommends EPA develop guidance for beneficial use rather than try to define it in a
rule. D etailed guidance is preferred to provide States with flexibili ty in decisions and implementation.

However, it should be noted that the 2010 proposed rule documents EPA’s new position against unencapsulated uses of CCRs. Regardless of EPA’s decision to promulgate rules or publish a guidance document pertaining to be neficial use, EPA must clarify its 2010 statement opposing unencapsulated use.

EPA states that the use of large volumes of CCRs in sand and gravel pits or for restructuring the landscape are considered disposal, rather than beneficial use. However, these uses meet the criteria listed in Section IV, D.2, “What constitutes beneficial use?” , d efining legitimate beneficial

uses:
1. The material use must provide a functional benefit;

2. The material substitutes for the use of a virgin material, conserving natural

re sources that would otherwise need to be obtained through practices, such as extraction; and

3. Where relevant product specifications or regulatory standards are available, the materials meet those specifications, and where such specifications or standards
hav e not been established, they are not being used in excess quantities.31 One can argue that the disallowance of unencapsulated uses is in conflict with the above criteria.

1. In the case of sand/gravel pits and landscaping, CCR can be argued to provide a
fun ctional benefit.

2. In the case of sand/gravel pits and landscaping, CCR can be argued to be a substitute for virgin material.

3. In the case of sand/gravel pits and landscaping, CCR constituent levels may be lower than the surrounding soil and/or meet regulat ory criteria. In the case of sand/gravel pits, the issue speaks to the site

- specific conditions of the placement location, rather than the composition of the CCRs.

According to ASTSWMO’s survey results, 49 States frequently use volume of material used a s a determination for beneficial use. T he use of large quantities of CCRs without functional benefit which causes environmental harm or in “flowable fill” mixtures to fill mines or quarries without
environmental benefits should not be viewed as a benefici al use, but rather as land disposal and regulated accordingly.

ASTSWMO recommends that EPA define the parameters used in declaring its categorical opposition to unencapsulated uses. For example, EPA’s determination should, at a minimum, specify individua l constituent concentration limits, leachate limits, and volume used as the basis
for its decision. The States can consider these parameters when evaluating proposed uses on a

case

- by

- case basis.



### C HARACTERIZATION 

### /D ATA 

### S TANDARDS

Information and data on the extent to which States request and evaluate CCR characterization data prior to the beneficial use of unencapsulated CCRs.

Based on the ASTSWMO survey, 47 States either approve beneficial use of CCRs or have pending regulations to do so. State respon ses provide an overview of beneficial use practices. The majority of States include agricultural use, structural fill, blasting grit, road base, waste stabilization, landfill cover and soil amendments as unencapsulated uses. To a lesser extent 23 States co nsider roadbase, 21 consider flowable fill, and 23 consider snow and ice control as unencapsulated uses.

S ome States requir e substantial testing of CCRs before allowing use in unencapsulated applications. This testing includes total and leaching analyti cal tests of the raw material and field tests to gather potential ground water and surface water impact data before approving the use. In these cases CCR is not permitted to be beneficially used unless it meets the protective criteria.

Based on the surve y, at least 29 States have denied beneficial uses based on insufficient data, failing to meet State standards, location standards such as proximity to ground or surface water, and use constituting disposal rather than structural fill.32 The appropriate mean s of characterizing beneficial uses that are both protective of human health and the environment and provide benefits. EPA is also requesting information and data demonstrating where the federal and State programs could improve on being environmentally pro tective and, where States have, or are developing, increasingly effective beneficial use programs.

Pennsylvania (25 PA Code Chapter 290) has recently revamped and Maryland recently proposed beneficial use regulations for CCR and provide modern examples of effective beneficial use

programs

.

Whether the Agency should promulgate standards allowing uses on the land, on a site

specific basis, based on site specific risk assessments, taking into consideration the composition of CCRs, their leaching potential un der the range of conditions under which the CCRs would be managed, and the context in which CCRs would be applied, such as location, volume, rate of application, and proximity to water.

It is essential as part of a good beneficial use program to identify best management practices and recommendations for a variety of beneficial uses. This information could be used to develop guidance documents that would promote the consistent, safe use of CCRs

. Guidance established for this purpose would be very helpful in evaluating beneficial uses

. It is noted that fill projects that include only CCRs should have a more limited range of conditions than projects with mixed
materials or mixed wastes.

Many States currently use risk

- based standards for making decisions f or beneficial use of unencapsulated CCRs . This information should be considered in guidance developed by EPA

.

Examples

State A: The cleanup target levels of Chapter 62

- 777, F.A.C. are health

- based risk lev els and are used to help the Department evaluate the risk to human health for beneficial
use of CCRs. Usually any proposed project that would leach contaminants above the ground water cleanup target levels will not be allowed. Also, if the material is
soil

- like and the contaminants are above the soil cleanup target levels

, uses in residential or commercial applications may not be allowed unless the applicant installs engineering and institutional controls to ensure that the material will not provide a human health risk.

State B and C:
Cancer risk 1x1 0

- 6, background if approved by department, or otherwise based on proposed use33 State D: Those proposed projects that have parameters that exceed the State

- wide standards for soil pursuant to 567

— Chapter 137, would be evaluated by staff using
a Cumulativ e Risk Calculator to assess human health risks related to direct exposure to contaminants in soil and groundwater. In addition, the base of a disposal unit shall be situated so that the base of the waste within the proposed unit is at least 5
feet above t he high water table unless a greater separation is required to ensure that there will be no significant adverse effect on groundwater or surface waters or a lesser separation is unlikely to have a significant adverse effect on groundwater or
surface waters

.

State E: Risk standards are included in the guidance for individual chemical cancer risk of

0.5x10

- 6 and non

- cancer hazard index of 0.1 and total cancer risk of 1x10

- 5 and
hazard index of 0.5.

State specific standards should also be considered base d on the diversity of State geographical and
environmental conditions.

It would also be helpful if EPA were to develop recommendations for land application of CCRs, as it
has for biosolids.

The considerations suggested above can be incorporated into a guidance document, instead of regulations, to provide States with flexibility in final decision

- making. The items listed above are all relevant and each can be discussed in greater detail within a guidance document. The guidance document can also provid e added value if it presents a range of acceptable and reasonable parameters, as well as including a ‘default’ recommendation

.

If materials characterization is required, what type of characterization is most appropriate? If the CCRs exceed the toxicity ch aracteristic at pH levels different from the TCLP, should they be excluded from beneficial use? When are totals levels relevant?

Based on the survey responses from 34 States, it depends on the type of beneficial use as to
whether material characterization should be required. For example, application rates are applicable to agricultural uses or soil amendments but not for structural fill. The majority of States already use a mechanism for materials evaluation that includes one or a combination of TCLP

ana lysis, risk assessment, remediation levels, total analysis, background data, drinking water limits, soil leaching potential, or volume of material

.

Totals data, leachability data, and bioaccessbility data are relevant in determining beneficial use

approva ls

. CCR characterization should include total analyses and leaching tests for the chemicals of concern (metals mostly). It should evaluate both the raw CCR and how it would be used in the field. For example, if CCRs are to be blended with native soils t he impacts to the environment34 could be different from its use alone. The total concentrations are relevant for evaluating the risks of direct human exposure to CCRs. Total metals results can be compared to relevant criteria such as soil cleanup objective s or landspreading constituent limits. Recognizing that pH appears to affect leaching of metals, EPA could develop total analysis criteria which conservatively predict leaching under various scenarios. The leaching tests are needed to evaluate the risks to ground and surface waters in a proposed use.

In concert with leachability results, total metals results are relevan t in determining how much of a particular substance could ultimately leach out of the CCRs. However, none of this should be done
withou t considering the intended beneficial use.

Whether EPA should fully develop a leaching assessment tool in combination with the Draft SW

- 846 leaching test methods described in Section I. F. 2 and other tools (e.g.,
USEPA’s Industrial Waste Management Eva luation Model (IWEM)) to aid prospective beneficial users in calculating potential release rates over a specified period of time for a range of management scenarios.

The current TCLP, SPLP, and ASTM do not cover a wide array of uses and applications

. A better simplified standard is needed. We understand a new testing methodology under the Leaching Environmental Assessment Framework (LEAF) is being developed. It is our understanding that these improved testing methodologies, which can provide more accur ate CCR leaching information under a variety of field conditions, will be incorporated into SW

- 846 very soon.

I t would be helpful if EPA modified the IWEM tool to be more useful in evaluating beneficial uses of CCRs. This stochastic model approach is b etter for evaluating the wide range of variability that is expected in beneficial use proposals.

Information and data relating to the agricultural use of FGD gypsum, including the submission of historical data, taking into account the impact of pH on lea ching potential of metals, the variable and changing nature of CCRs, and variable site conditions.

Based on the survey res ponses, many States rely on the Department of Agriculture to set application rates. Coal fly ash may exhibit liming characteristics , but in general should not be encouraged for use as a liming agent due to trace mercury and other metals.

One of the largest waste streams generated by coal power electric plants is flue gas desulfurization ( FGD )

. There are several methods for removin g sulfur oxide ( S o x ) . One method is a wet scrubber that uses limestone which yields the byproduct called FGD gypsum. The volume of this material is larger than fly and bottom ash combined. EPA should develop guidance for agricultural uses based
on sound soil science.35 

### S PECIAL 

### W ASTE 

### D ESIGNATION Based on the ASTSWMO survey, 89 % (24/27 responses) of the States responding indicated that the term “special w aste” would carry similar negative connotations as does the term “hazardous

waste

. ” The public would not be convinced that the mate rial was any safer if labeled “special waste” than when using the term hazardous w aste. Also, the majority of the States that responded alr eady have the term “special w aste” defined either by statute or regulation in terms
th at may conflict or differ from the proposed CCR definition. Some specific statements:

State comment : Because the "special waste" designation is similar to the RCRA listed hazardous waste regulations, there are likely to be comparisons to CCR being a list ed hazardous waste,
whether it is or is not.

State comment : If EPA regulates CCRs as a "special waste" under Subtitle C, the public would be unable to
make the fine

- line distinction between “hazardous waste" and "special waste" under
Subtitle C.

T he Sub title C approach is inappropriate because it would severely damage, if not eliminate, most beneficial uses of CCRs that are safe and result in saving significant environmental resources.

A ttempting to allow beneficial use of CCRs under Subtitle C as "spec ial wastes" would not resolve the stigma problem. CCRs would then be known as "special hazardous wastes" and States would have increased opposition to approving safe beneficial uses of CCRs, and may actually be forced to prohibit their use except in very limited cases such as Portland cement manufacturing. It is also
not clear if cement manufacturers would even be willing to continue the use of coal fly ash if it has the stigma of a special hazardous waste.

Thus, regulating CCRs under Subtitle C would be a flawed, unnecessary and inappropriate public policy decision by EPA. Should EPA choose to regulate CCRs, ASTSWMO recommends EPA should only regulate the disposal of CCRs under Subtitle D and work with the States on any concerns they have about implem entation of the regulations.



### S TIGMA There is already a "stigma" attached to beneficial use of CCRs. States have already experienced difficulties in approving uses of CCRs in highway sub

- bases

, for example. EPA's proposed rule has increased concerns by t he public that any use of CCRs is dangerous to their health and would damage the environment. T he failure of TVA's coal slurry impoundment was a true environmental disaster needing EPA's attention as well as the States'. But EPA's approach to that proble m is an over reach and is generating unnecessary alarm by the public for any uses of coal ash. It appears to be creating the impression that any beneficial use of coal ash poses the similar risks as the TVA slurry impoundment failure. This, of course, is simply incorrect, and EPA should recognize the problems it would create by pursuing a regulatory course for beneficial use of CCRs.36 State comment : One of the State's largest cement manufacturers has said that that it will not use fly ash in
its cement cl inker production because of the negative implications of listing coal
combustion ash as hazardous

.

If EPA were to regulate CCRs as a “special waste” under Subtitle C of RCRA, and stigma turns out to be an issue, suggestions on methods by which the Agency could reduce any stigmatic impact that might indirectly arise. We are seeking information on actual instances where “stigma” has adversely affected the beneficial use of CCRs and the causes of these adverse effects.

A measure that EPA could take to mitig ate the stigma effect is to drop the provision in the proposed regulation that products made from beneficially

- used CCRs could be subject to Subtitle C when disposed. Consumers are not going to buy products that may need to be disposed as
hazardous waste if there is a similar product without that potential. Ultimately, such consumer
choices would likely cause manufacturers to reduce, rather than increase, their use of CCRs.

The issue of “stigma” and its impact on beneficial uses of CCRs, including more

s pecifics on the potential for procedural difficulties for State programs, and measures that EPA might adopt to try to mitigate these effects.

The “stigma” impact on beneficial uses would be significant. One State offers an example. At present, the State has no established beneficial use for CCRs other than small

- scale fill projects. The State also has no hazardous waste landfills so the Subtitle C option would require CCRs to be shipped approximately 1800 miles by truck, barge, and rail to the nearest s uch landfill at an estimated annual cost of $17 million (2010 dollars). This would create a significant motivation to find beneficial uses for the CCRs. However, even under the current regulatory scheme, the utility operators have not been able to convin ce local concrete plants to use CCRs in their concrete. Convincing them would not be any easier with the “hazardous waste” label attached to the CCRs.

In addition, organizations such as ASTM have publicly stated that they could not support a
hazardous wa ste label on CCR, causing concern for certification and use of CCR.



### A IR 

### Q UALITY

T here would be reductions in GHG emissions from the beneficial uses of some CCRs. With the signific ant concern over climate change, EPA should recognize this benefit when eva luating options for regulating beneficial uses of CCRs. One of the largest byproducts from burning coal is fly ash. This byproduct has been successfully used in making concrete, replacing Portland cement. It is
documented that cement kilns are one of th e largest emitters of greenhouse gases. Use of fly ash as replacement for cement both results in a productive beneficial use for an existing by

- product of energy production in place of producing a separate product

, as well as reducing consumption of

energ y that would be necessary to produce the amount of Portland cement that would be required to off

- set the loss of coal ash which can be used in the concrete industry. Therefore, this37 beneficial use of coal ash can significantly reduce the potential for glo bal warming. Concrete produced by using fly ash is now considered a green product.

1 National Academy of Sciences, Managing Coal Combustion Residues in Mines; The National Academies Press, Washington, DC,

200 6.

2 Congressional Research Report entitled “Regulating Coal Combustion Waste Disposal: Issues for Congress”

3 U.S. EPA (2000) Characterization and evaluation of landfill leachate, Draft Report. 68

– W6

– 0068, Sept 2000.

4 Data were accepted into the databas e if they met the following criteria: represented leachate characteristics on an individual sample basis; included at least some information regarding the type of landfill fr om which the data were collected; were taken from a reliable source; available in an electronic form that could be incorporated into the database without extensive modification or manual data entry.

5 EPRI (2006) Characterization of Field Leachates at Coal Combustion Product Management Sites: Arsenic, Selenium, Chromium, and Mercury Spe ciation, EPRI Report Number 1012578. EPRI, Palo Alto, CA and U.S. Department of Energy, Pittsburgh, PA.
See also EPRI (2005) Speciation and Attenuation of Arsenic and Selenium at Coal Combustion By

- Product Management Facilities,
DOE Award Number: DE

- FC26

- 0 2NT41590

6 National Academy of Sciences, Managing Coal Combustion Residues in Mines; The National Academies Press, Washington, DC,

2006.

7 Based on disposal rates cited in the proposal from an unidentified DOE survey, 70% of CCRs are disposed on

- site and 3 0% of CCR are disposed off

- site.

8 Source of data: Appendix C, Regulatory Impact Analysis for EPA’s Proposed RCRA Regulation of Coal Combustion Residues Generated by the Electric Utility Industry

9 Assumes that beneficial use continues at the current rate of 45% and that off

- site disposal remains 30% which is the rate cited in the proposal from an unidentified DOE survey.

10 See http://www.epa.gov/epawaste/hazard/correctivea ction/pdfs/2020fac.pdf

11 See section 13 of Report on Treatment, Storage & Disposal Facilities (TSDF) for Hazardous, Toxic, and Radioactive Waste, 2006 Update , available at http://www. environmental.usace.army.mil/TSDF/rp0toc.htm

. 12 FL Statutes 403.7222

- Prohibition of hazardous waste landfills. (2) The Legislature declares that, due to the permeability of the soil and high water table in Florida, future hazardous waste landfills are p rohibited. Therefore, the department may not issue a permit pursuant to s. 403.722 for a newly constructed hazardous waste landfill. However, if by executive order the Governor declares a hazardous waste management emergency, the department may issue a per mit for a temporary hazardous waste landfill. Any such landfill shall be used only until such time as an appropriate alternative method of disposal can be derived and implemented. Such a permit may not be issued for a period exceeding 6 months without a fu rther declaration of
the Governor.

KS Statutes 65

- 3458.

- Burial prohibited; exceptions; procedure. (a) The underground burial of hazardous waste produced by persons generating quantities of such waste greater than those specified in K.S.A. 65

- 3451 and a mendments thereto is prohibited except as provided by order of the secretary of health and environment issued pursuant to this act. (b) (1) The secretary shall decide whether or not an exception to the prohibition against underground burial of hazardous waste shall be granted for a particular hazardous waste. No decision to grant an exception shall be rendered unless it is demonstrated to th e secretary that, except for underground burial, no economically reasonable or technologically feasible methodology exists for the disposal of a particular hazardous waste.

13 MO Statutes 260.429

- In non

- karst areas of the state, the department of natural resources shall not issue a hazardous waste facility permit for a proposed commercial hazardous waste landfill, if such landfill would be located directly over a groundwater
divide.

14 AL Statutes 22

- 30

- 5.1(c)

- There shall be no more than one commercial hazardous waste treatment facility or disposal site as defined by subdivisions (4) and (14) of Section 22

- 30

- 3 situa ted within any one county of the state.

15 OK Statutes 27A

- 2

- 7

- 114 A. Except as provided in subsections B and C of this section, no permit shall be issued for the off

- site disposal of hazardous waste or for the off

- site treatment of hazardous waste by incin erator at a new hazardous waste facility proposed to be located within eight (8) miles of the corporate limits of an incorporated city or town.

NV Statutes 444.8456

- 1. A stationary new or expanding facility for the management of hazardous waste must not be
constructed within: (a) One mile of: (1) A dwelling, school, church or community center; (2) An area zoned solely for residential use; etc.

16 MA Statutes Chapter 21D, Section 5

17 CT Statutes Chapter 439 Section 22a

- 20a