UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

 ) 

Hazardous and Solid Waste Management ) 

System; Identification and Listing of ) 

Special Wastes; Disposal of Coal ) 

Combustion Residuals From Electric ) 

Utilities; Proposed Rule ) Docket ID No. 

 ) EPA-HQ-RCRA-2009-0640 

75 Fed. Reg. 35,128 ) 

(June 21, 2010) ) 

_____________________________________ ) 

COMMENTS OF EARTHJUSTICE, ENVIRONMENTAL INTEGRITY PROJECT, 

SIERRA CLUB, NATURAL RESOURCES DEFENSE COUNCIL, SOUTHERN 

ALLIANCE FOR CLEAN ENERGY, SOUTHERN ENVIRONMENTAL LAW CENTER, 

PHYSICIANS FOR SOCIAL RESPONSIBILITY 

ORCR Docket 

Environmental Protection Agency 

Mailcode: 5305T 

1200 Pennsylvania Ave. NW 

Washington, DC 20460 

November 19, 2010 
2 

Executive Summary 

The U.S Environmental Protection Agency (EPA) is on the road to resolving a 30-year 

old question—how to ensure the safe disposal of the second largest industrial waste stream in the 

nation under the Resource Conservation and Recovery Act (RCRA). Past administrations have 

dodged this question through avoidance and delay. The catastrophic collapse of the TVA dam in 

December 2008, however, makes delay and avoidance no longer an option. In the face of one 

the greatest environmental disasters in U.S. history, with houses torn from their foundations and 

20-foot ash-bergs still floating in the river, EPA Administrator Lisa Jackson in January 2009 

rightly committed to regulatory action under RCRA. 

At issue, however, is the precise regulatory approach. Somewhere on the path to 

federally enforceable regulations, EPA lost its way. Now stalled at a fork in that road, the 

Agency has published a “co-proposal,” asking for comment on two extremely different options. 

The first is to regulate ash as a “special waste” under Subtitle C, with federally enforceable 

minimum standards applicable in every state. The second is to recommend standards under 

subtitle D of RCRA, which were designed for nonhazardous waste, which states are under no 

obligation to adopt, and which cannot even be enforced by EPA. 

While this 230-page comment letter will help to complete the record, but the choice is 

clear. The subtitle C alternative clearly is the only option consistent with the best available 

science, and with the law. In these comments we provide EPA with lengthy documentation 

responsive to the statutory factors that EPA must consider under both sections 8002(n) and 

3001(b) of RCRA. We address first the eight study factors of the Bevill Amendment’s section 

8002(n), followed by the listing factors set out in section 3001(b). 

Congress requires that EPA examine the volume, toxicity, damage, current regulation and 

current mismanagement of coal ash. These are described in detail in our comments and the 

accompanying expert appendices, which provide extensive information about the volume and 

nature of the waste, the significant risk to human health and the environment, the gross 

deficiencies of current state regulatory programs and the substantial documented damage that has 

occurred throughout the U.S. from mismanaged ash. We also face squarely the question of 

Schedule C’s impact on recycling, as well as the likely cost of compliance, as these are also 

among the “Bevill” factors that EPA must address. 

While the amount of information we provide to the Agency is extensive, it supports a few 

salient points critical to EPA’s decision making: 

 Damage from Coal Ash is Serious, Pervasive and Mounting

Damage cases (sites with documented groundwater or surface water contamination) have 

increased 10-fold in the last 10 years to 137 sites, even without any real effort by EPA to find 

them. These sites have poisoned drinking water, destroyed entire fish populations, killed scores 

of livestock, created superfund sites, sickened families and destroyed livelihoods. The damage 

includes leaks, major spills, and the pervasive contamination of underground drinking water 
3 

sources. The contamination involves pollutants measured at hundreds of times above safe 

drinking water standards and some of the most toxic chemicals known to man and aquatic life, 

including arsenic, cadmium, chromium, lead mercury and selenium. The damage at most of the 

newly identified sites is largely unmitigated, and it represents present disposal practices, not just 

historical past practices. 

EPA has identified 67 sites that it has defined as either “actual” or “potential” damage 

cases, based largely on review of data brought to the Agency by environmental organizations. 

Our comments incorporate two reports that we have previously shared with the Agency, and 

which identify an additional 70 sites that meet EPA’s damage criteria. Because our analysis was 

limited to selected states and sites with at least some groundwater data, we include evidence to 

show that contamination is highly likely at many other locations. Although evaluating the 

damage is one of EPA’s responsibilities in determining how to regulate coal ash, the Agency has 

done very little to seriously investigate the problem. If that continues to be the case, we hope 

that EPA will at least review the information that we have gathered at our own expense, and 

determine whether these sites are as contaminated as the data suggests. 

 Coal Ash Poses A Substantial Human Health Hazard: 

 

EPA’s own risk assessments demonstrate the extremely high risk to human health from 

coal ash. Through ingestion of toxic metals and inhalation of particulates, coal ash contributes 

to heart disease, cancer, stroke and chronic lower respiratory disease. The extremely high risk of 

cancer from ingestion of arsenic, which is concentrated in the groundwater near many ash 

disposal sites, is a major factor in EPA’s risk assessment. But our comments demonstrate that 

this high cancer risks – 1 in 50 at some coal ash sites for people drinking contaminated water- is 

actually substantially underestimated. The leading arsenic experts in the country observe the risk 

is underestimated by a factor of 17.5, through the use of an outdated cancer slope factor. 

Similarly, our comments show that the EPA’s risk assessment significantly underestimates the 

harm posed by lead by factor of 2-3 times. 

 Coal Ash Poses A Serious Threat to the Environment 

One of coal ash’s most mobile toxins, selenium, is deadly at low concentrations to fish. 

Yet almost every one of the nation’s hundreds of unlined coal ash dumps rests near a river, 

stream or lake. The loading of selenium to these waterways, by spills, seeps, surface discharges 

or groundwater pathways has poisoned dozens of aquatic environment and killed or impaired 

fish, amphibians, and the wildlife that feed on them. Selenium bioaccumulates, so this damage is 

deadly and long-lasting. New data submitted in these comments, in fact, indicate that the 

dredged river at the site of the TVA disaster may have been given the “all clear” sign generations 

too soon. 

 State Regulations are Grossly Deficient in the Majority of States 

Our thorough analysis of the state regulations reveals that most states fail to require 

essential safeguards for landfills and surface impoundments disposing of coal ash, including 

liners, groundwater monitoring, leachate collection, dust controls and financial assurance. The 
4 

majority fail to prohibit the placement of coal ash in water tables, wetlands, unstable areas and 

floodplains. 

 EPA’s own analyses in 2005, 2006 and 2010 reveal that states have not improved their 

regulations to close these gaps over the last decade. EPA even acknowledges that, based on 

severe and entrenched state resistance to regulating ash, the Agency expects only 48 percent of 

the total amount generated in the US to be governed by stricter state regulation, if these 

regulations are not made mandatory under subtitle C. Moreover, we include in our comments a 

thorough, up-dated analysis of state regulations in 37 states, comprising 98 per cent of the coal 

ash generated nationally. Our analysis reveals a far grimmer picture of state regulatory programs 

than is contained in EPA’s analyses. 

These regulatory failure have left the public exposed to pollution that is dangerous and 

illegal. Part 257.3-4 of Subtitle D, which is supposed to guide state programs, defines coal ash 

ponds or landfills that contaminate groundwater outside their perimeter as “open dumps” that 

must be closed or cleaned up, subject to narrow exceptions. Our comments show that dozens of 

ash disposal sites have violated these standards (which are based on drinking water limits) with 

little consequence, and without serious corrective action. 

 Environmental Justice Concerns Are Substantial 

The environmental justice implications of EPA’s decision are extremely significant. By 

EPA’s own admission, coal plants—which are usually accompanied by coal ash ponds and 

landfills—are disproportionately located in low income communities. Almost 70 percent of ash 

ponds in the U.S. are in areas where household income is lower than the national median. Yet 

even more striking and disturbing environmental justice implications are found when the 

predicted impact of EPA’s subtitle D option is considered. 

Using EPA’s own prediction of which states will not adopt the subtitle D guidelines— 

which states will ignore minimum federal guidelines for coal ash disposal facilities — it is 

crystal clear that poor communities and communities of color will be significantly 

disproportionally impacted. 

The contrast between the two options is stark and disturbing. In view of the national 

disparity found by EPA, a federal coal ash rule that applies equally in all parts of the country is 

necessary to alleviate the disparate impacts of ash disposal under the present patchwork of state 

laws. EPA must reject a disparate impact on vulnerable populations and promulgate a subtitle C 

rule, which ensures equal protection under the law for every community in this nation. Failing to 

take this course of action would be a clear violation of the intent of presidential Executive Order 

12898, Federal Actions to Address Environmental Justice in Minority Populations and LowIncome Populations. 

 The Benefits Greatly Outweigh the Costs of the Rule 

 The data show that the electric power industry can easily afford the modest compliance 

costs associated with Schedule C regulation, which will have a negligible effect on operating 
5 

costs, and no effect on the availability of power, according to the National Electricity Reliability 

Council. Even assuming all costs are passed on to consumers, the rule would result in a one-time 

rate increase of between 0.5 and 1% in coal dependent states like Indiana, Pennsylvania, and 

Ohio. 

 Unfortunately, EPA has failed to account for the value of safer standards for coal ash by 

failing to “monetize” them. Our comments itemize benefits that EPA has failed to quantify, and 

therefore effectively ignored in its economic analysis. These include the avoided cost of lawsuits 

and damage claims related to spills and fouled drinking water, bringing municipal water to wells 

that are no longer usable, restoring ecosystems contaminated with heavy metals, and premature 

death and disease from exposure to wind-blown particles from ash dumps. 

 We agree that responsible recycling, especially applications that encapsulate ash in 

products like cement and wallboard, offer both economic and environmental benefits. But EPA 

has made life much harder for itself by greatly inflating the value of recycling, and then 

including a scenario in which those benefits disappear due to the alleged “stigma” of Schedule C 

regulation. EPA’s proposal assigned an annual value of nearly $23 billion to life cycle benefits 

of recycling, based on assumed reductions in fine particle pollution from cement kilns and 

wallboard plants, and to big energy savings in both sectors. Our comments will show that the 

true value is closer to $1 billion, based on the Agency’s own data, and information from other 

federal agencies. Recycling can save money, to be sure, but wildly inflated values distort the 

debate and hide what may be the biggest reason to recycle coal ash: avoiding the cost of disposal. 

 Stigma is Not Properly the Basis for EPA’s Decision 

 Stigma has been the watchword of the opposition to subtitle C, but it has no place in the 

center of this debate. No evidence has been offered to support dire industry predictions, and 

historical market evidence proves the falseness of their assumptions. Our comments discuss in 

detail the nature and history of the hazardous waste recycling market and why recycling will 

increase under more stringent subtitle C regulations. It would be contrary to law to base a 

decision on the unproved, unfounded and irrational fears proffered as fact by those who wish not 

to be regulated. Once EPA opens this door, it will never be able to close it; the Agency will be 

overwhelmed by hypothetical scenarios untethered to reality every time it even thinks about 

setting a health or safety standard. 

The data flow in one direction only. Considering the factors mandated by Congress, it is 

unlawful and unreasonable for EPA to choose an option will apply to less than half of this 

immense and highly dangerous waste stream. In light of the best scientific data and the 

applicable law, EPA cannot ignore the continued mismanagement of over 70 million tons of 

toxic coal ash each year. In light of the deadly dangers it poses to the nation’s health, and 

particularly to our most vulnerable communities, regulation under Subtitle C is required. 
6 

I. INTRODUCTION 

 On October 16, 2009, a few months shy of the one-year anniversary of the monumental 

disaster at Tennessee Valley Authority’s Kingston Fossil Plant, the U.S. Environmental 

Protection Agency (EPA) made a wise decision. EPA determined that it must reverse its prior 

determinations that regulation of coal ash, or coal combustion residues (CCRs), under subtitle C 

of the Resource Conservation and Recovery Act (RCRA)1

 was not warranted. While residents of 

Harriman, Tennessee were still struggling with the billion-gallon coal ash spill that devastated 

their once-beautiful riverside hamlet, EPA decided that the management and disposal of coal ash 

should be regulated under the hazardous waste provisions of RCRA. In the wake of a disaster 

that at any other time or season would have taken many lives, the Agency was resolute, and it 

concluded that “continuing to regulate such CCRs under the non-hazardous waste provisions of 

RCRA, even with the promulgation of a national subtitle D rule, would not be protective.”2

 EPA clearly set forth the rationale for this decision, citing: 

 “the growing record of proven damage cases to groundwater and surface water, as well 

as a large number of potential damage cases all of which demonstrates that CCRs have 

not been properly managed under the current scheme;” 

 “a new type of damage case coming to light (i.e., breaches of surface impoundments) 

that was not considered previously, but has shown to have catastrophic impacts on 

human health and the environment if not properly controlled;” and 

 “the results of the Agency’s 2009 risk assessment which indicates that certain 

management practices – particularly units lacking liners and the prevalence of wet 

handling, can pose significant risks to human health and the environment.”3

EPA was further persuaded that subtitle C regulation was essential on grounds that “recent 

research indicates that traditional leach procedures . . . may underestimate the actual leach rates 

of toxic constituents under different field conditions,” that “state regulatory programs for the 

management of CCRs, including requirements for liners and groundwater monitoring are still 

lacking,” and that “EPA continues to see cases of inappropriate management or absence of key 

protections.”4

 Thus, EPA concluded that “without strong federal oversight, which subtitle D of 

RCRA does not provide, the disposal of CCRs will continue to present risks to human health and 

the environment.”5

                                                       

1

 Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901–6992k (2006) (amending Solid Waste 

Disposal Act, Pub. L. No. 89-272, 79 Stat. 992) 

2 U.S. Envtl. Protection Agency (EPA). Draft: Disposal of Coal Combustion Residuals From Electric Utilities and 

CERCLA Hazardous Substance Designation 72 (Docket ID: EPA‐HQ‐RCRA‐2009‐0640‐0013) (provided to the 

Office of Mgmt. & Budget (OBM)) (draft proposed Oct. 16, 2009) [hereinafter 2009 Draft Proposed Rule]. 3 Id. at 75. 4 Id. 5 Id. (emphasis added). 
7 

 When EPA published its regulatory proposal in the Federal Register on June 21, 2010,6

subtitle D regulation was presented as an alternative to the subtitle C regulation EPA had 

determined was essential. After the Office of Management and Budget (OMB) spent nearly nine 

months reshaping EPA’s initial proposal, EPA’s decisive charge was spun into a retreat. The 

clarity and resolve reflected in EPA’s original commitment to regulate had vanished, and the 

proposed rule presented subtitle C and subtitle D regulations as equally viable options. Thus, the 

proposed rule presents the public with two very different alternatives—regulation of coal ash 

under the hazardous waste provisions of subtitle C or regulation of coal ash as a non-hazardous 

waste under subtitle D of RCRA—with no stated preference for either one. The ambivalence 

evidenced in the present proposal, however, does nothing to change the pressing need for subtitle 

C regulation, which EPA was compelled to recognize in October, 2009. 

 In sum, based on a full consideration of the statutory factors Congress mandated EPA to 

consider under Section 8002 of RCRA, as well as the factors laid out in EPA’s May 2000 

Regulatory Determination and the regulatory criteria governing the listing of hazardous waste, 

EPA unequivocally must regulate coal ash under subtitle C of RCRA in order to protect human 

health and the environment. 

II. BACKGROUND 

More than 30 years have passed since the Bevill Amendment7

 was enacted in 1980. 

Despite a clear Congressional mandate to provide regulation within two and half years, to date, 

there has still not been a determination about how to dispose of the Bevill wastes. Yet since 

1980, EPA has studied coal combustion waste with mounting evidence that coal ash poses severe 

risks to human health and the environment. 

A. RCRA’s Passage and the Development of the “Special Waste” Terminology 

 for Coal Combustion Waste 

In 1976, Congress passed the Resource Conservation and Recovery Act (RCRA)8 to 

regulate treatment and disposal of hazardous wastes in order to protect human health and the 

environment. Subtitle C of RCRA regulated hazardous wastes and contained directives to EPA 

to identify and list hazardous wastes under this title. 

After RCRA’s passage and pursuant to congressional directive, EPA published 

regulations in 1978 entitled “Proposed Guidelines and Regulations and Proposal on 

Identification and Listing.”9

 In these regulations, EPA proposed deferring “applicability of most 

of the treatment, storage, and disposal standards for selected high-volume, relatively low risk 

waste categories until information is gathered and assessed to determine how they can best be 

                                                       

6

 EPA, Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of 

Coal Combustion Residuals From Electric Utilities; Proposed Rule, 75 Fed. Reg. 35,128, 35,182 (proposed June 21, 

2010) (to be codified at 40 CFR Parts 257, 261, 264 et al.) (hereinafter 2010 Proposed Rule). 

7 See Bevill Amendment, 42 U.S.C. § 6982(n) (1980). 8

 Pub. L. No. 94-580, 90 Stat. 2795 (1976) (codified as amended at 42 U.S.C. §§ 6901 to 6992k). 

9

 “Proposed Guidelines and Regulations and Proposal on Identification and Listing” for RCRA Subtitle C hazardous 

waste, 43 Fed. Reg. 58,946 (Dec. 18, 1978). 
8 

handled.”10 Thus, EPA stated that it would address so-called high volume, low risk wastes 

(mining waste, utility waste, gas and oil drilling muds, gypsum piles, and cement kiln dust)—

which it termed “special wastes”—in later regulations, and it solicited information and 

comments that would assist the agency in developing substantive standards.11 

On May 19, 1980, these proposed regulations were promulgated as final regulations that 

listed specific types of hazardous wastes subject to subtitle C regulation under RCRA. EPA 

determined that the “special wastes” should be subject to the RCRA part 264 and 265 regulations 

(implementing subtitle C) without exemption.12

Just before these regulations were scheduled to take effect, Congress enacted the “Bevill 

Exclusion” on October 21, 1980, as part of the Solid Waste Disposal Act Amendments of 1980.13 

The Bevill Exclusion, found in Section 3001(b)(3)(A)(i)14 exempted large volume wastes 

generated by coal and other fossil fuel combustion from regulation under subtitle C temporarily 

while further studies were undertaken.15 Namely, as Section 8002(n)16 required, the EPA was 

directed to conduct studies and submit a Report to Congress on the adverse effects to human 

health and the environment regarding ash disposal on a specified timeline.17 Section 

3001(b)(3)(c)18 specified that the EPA was required to promulgate regulations for these wastes or 

determine that no such regulations were needed in the six months following the study, hearings 

and public comment.19

While the Bevill Exclusion was the result of a successful industry lobbying effort to 

avoid regulation, its stated intent was to provide EPA with additional information about the 

composition, characteristics and hazards posed by these wastes, as expressed in the 1978 

proposed “special waste” regulations. Thus, Congress required EPA to undertake a study of the 

                                                       

10 Id. at 58,948. 11 Id. at 58,992 (“A proposed rulemaking will be published at a later date regarding the treatment, storage and 

disposal of special waste. The Agency will be developing additional information in order to write substantive 

standards for special waste and hereby solicits information and comment from the public which may assist the 

agency in developing its proposals.”)

12 45 Fed. Reg. 33,154, 33,174–75 (May 19, 1980) 

13 Pub. L. No. 96-482, 94 Stat. 2334, Solid Waste Disposal Act, Section 3001(b)(3)(A)(i) (codified at 42 U.S.C. § 

6921(b)(3)(A)(i)) (SWDA) (“Notwithstanding the provisions of paragraph (1) of this subsection, each waste listed 

below shall, except as provided in subparagraph (B) of this paragraph, be subject only to regulation under other 

applicable provisions of Federal or State law in lieu of this subtitle until at least six months after the date of 

submission of the applicable study required to be conducted under subsection (f), (n), (o), or (p) of section 8002 of 

this Act and after promulgation of regulations in accordance with subparagraph (C) of this paragraph:(i) Fly ash 

waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily from the combustion 

of coal or other fossil fuels.”).

14 42 U.S.C. § 6921(b)(3)(A)(i). 

15 Id. SWDA, Section 3001(b)(3)(A)(i) codified at 42 U.S.C. §§ 6921(b)(3)(A)(i). 16 42 U.S.C. § 6982(n). 

17 Id. at § 8002(n), 42 U.S.C. § 6982(n). The eight factors listed in SWDA Section 8002(n)(1)-(8) for study include: 

source and volumes of such waste, present disposal and utilization practices, potential danger to human health and 

the environment from disposal and reuse of the meterials, documented cases where danger to human health or the 

environment from surface runoff or leachate has been proven, alternatives to current disposal methods, costs of such 

alternatives, impact of those alternatives on the use of coal and other natural resources, and the current and potential 

utilization of such materials. 

18 42 U.S.C. § 6921(b)(3)(C). 

19 Id. § 3001(b)(3)(C); 42 U.S.C. § 6921(b)(3)(C). 
9 

coal combustion waste issue on a two-year time frame.20 Two years after the Bevill amendment 

passed, EPA missed its October 31, 1982 deadline to complete the required report on fossil fuel 

combustion waste for Congress, and then missed its subsequent deadline to make a final 

regulatory determination on these wastes.21 

Six years after EPA missed its deadline, in February of 1988, EPA finally published and 

submitted a Report to Congress on Wastes from the Combustion of Coal by Electric Utility 

Power Plants.22 The report only addressed wastes generated from the electric utility power plant 

coal combustion, and failed to address co-managed utility coal combustion wastes, other fossil 

fuel combustion wastes, and non-utility boiler wastes.23 EPA also failed to complete its 

Regulatory Determination on coal combustion wastes at that time.24

In 1991, due to EPA’s continued failure to complete a Regulatory Determination on coal 

combustion wastes, a citizen group filed suit against the EPA.25 On June 30, 1992, EPA settled 

the case, entering into a Consent Decree that established a schedule for EPA to complete the 

Regulatory Determinations for all coal combustion wastes. The Consent Decree divided coal 

combustion wastes into two categories: (1) Fly ash, bottom ash, boiler slag, and flue gas 

emission control waste from the combustion of coal by electric utilities and independent 

commercial power producers; and (2) all other waste governed by RCRA Sections 

3001(b)(3)(A)(i) and 8002(n).26 The Decree provided a specific timeline for development of the 

regulatory framework applicable to coal combustion waste. 

On August 9, 1993, pursuant to this Consent Decree, EPA published its Regulatory 

Determination for the first category of wastes and concluded that regulation under subtitle C of 

RCRA for these wastes was not yet warranted.27 For the second category of wastes, EPA 

decided that additional study was necessary. EPA prepared a report to Congress—again 

following court-ordered deadlines—that was submitted in March 1999.28 

Finally, on May 22, 2000, EPA published a regulatory determination for this second 

category of coal combustion wastes.29 In this determination, EPA made the following findings: 

                                                       

20 SWDA, § 8002(n). 

21 EPA, Fossil Fuel Combustion Waste Legislative and Regulatory Timeline, 

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/regs.htm; SWDA § 3001(b)(3)(C). 22 EPA, Report to Congress: Wastes from the Combustion of Coal by Electric Utility Power Plants (EPA 530-SW88-002) (Feb., 1988). 

23 EPA, Fossil Fuel Combustion Waste Legislative and Regulatory Timeline, 

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/regs.htm. 

24 2010 Proposed Rule, 75 Fed. Reg. 35,136-37. 

25 Gearhart v. Reilly (Civil No. 91–2345 (D.D.C.)). 26 EPA, Report to Congress: Wastes from the Combustion of Fossil Fuels vol. 1 (EPA 530-R-99-010) (Mar. 1999) 

[hereinafter 1999 Report to Congress v.1], available at 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/volume_1.pdf. 27 58 Fed. Reg. 42,466 (Aug. 16, 1993), http://www.epa.gov/epawaste/nonhaz/industrial/special/mineral/080993.pdf. 28 See 1999 Report to Congress v.1, ; EPA, Report to Congress: Wastes from the Combustion of Fossil Fuels, vol. 2 

(EPA 530-R-99-010) (Mar. 1999) [hereinafter 1999 Report to Congress, v.2], available at

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/volume_2.pdf. 

29 65 Fed. Reg. 32,214, (May 22, 2000). http://www.epa.gov/fedrgstr/EPA-WASTE/2000/May/Day-22/f11138.htm 
10 

• The wastes in this second category analyzed in the 2000 regulatory determination 

were nearly identical to the wastes analyzed in the first 1993 determination 

because the high volume wastes dominated the waste characteristics, even when 

co-managed with other waste. The wastes from the 1993 determination remained 

exempt though they were similar to the wastes currently being analyzed.30 Thus, 

the “May 2000 Regulatory Determination addressed not only the remaining 

wastes, but effectively reopened the decision on CCRs that went to monofills,” 

which were addressed in the 1993 determination.31

• “Public comments and other analyses... have convinced us that these wastes 

could pose risks to human health and the environment if not properly managed, 

and there is sufficient evidence that adequate controls may not be in place.”32

Information on damage cases indicated a potential risk to human health and the 

environment. 

• A more complete groundwater assessment was needed to determine the risk from 

arsenic.33

• Improvements were being made in waste management practices due to increasing 

state oversight, although gaps remained in the current regulatory regime, which 

led it to retain the Bevill exemption.34

 On the basis of these findings, EPA stated its intent to regulate under subtitle D, but 

cautioned repeatedly that the “waste might present sufficient potential threat to human health and 

the environment to justify subtitle C regulation.”35 Essentially, the finding reflected deep 

uncertainty. Numerous times, EPA stated that, if circumstances change, EPA would “revisit” its 

determination. EPA stressed the temporal and contingent nature of its determination by 

qualifying its rationales adding “at this time” at least a dozen times.36

 EPA further outlined the factors that would be persuasive in regulating under subtitle C 

instead of subtitle D. In summary, EPA found that subtitle C regulation would be necessary: if a 

trend in protective CCR management did not continue; if available information indicated actual 

or potential damage to human health or the environment, adverse environmental effects, or 

inadequate state or federal regulation; if the report of the National Academy of Sciences 

regarding mercury—a major component of coal combustion waste—showed adverse health 

effects; or in the event of increased ‘‘risk[s] posed by managing coal combustion solid wastes if 

levels of mercury or other hazardous constituents change due to any future Clean Air Act air 

pollution control requirements for coal burning utilities.’’37 

                                                       

30 Id. at 32,217. 31 75 Fed. Reg. 35,128, 35,137 (June 21, 2010). 

32 65 Fed. Reg. at 32,216. 

33 Id. at 32,216. 34 Id. at 32,215. 35 Id. at 32,218. 36 Id. at 32,221, 32,222, 32,227,32,228, 32,230, 32,231, 32,232, 32,234, 32235. 37 Id. at 32,214, 32,218, 32,221. 
11 

Between 2000 and 2009, EPA made little progress toward regulation of coal ash. A 

report from EPA’s Office of the Inspector General investigating the agency’s inaction on coal 

ash regulation underscored that: “EPA has not published a proposed rule on CCW landfill and 

surface impoundments in the approximately 9 years since its regulatory determination on CCW 

disposal in landfills and surface impoundments.”38 However, over the past nine years, EPA has 

gathered additional data, held public meetings, updated the damage cases and the quantitative 

risk impact assessment.39

EPA acknowledges in the present rulemaking that many of the concerns highlighted in its 

2000 Regulatory Determination have been triggered over the past ten years: 

Review of the information developed over the past ten years has confirmed EPA’s 

original risk concerns, and has raised significant questions regarding the accuracy 

of the Agency’s predictions [in the 2000 Regulatory Determination] regarding 

anticipated improvements in management and state regulatory oversight of these 

wastes.40 

The original Bevill Amendment suggested that EPA should regulate coal combustion 

wastes if further study yielded evidence proving that it was a threat to human health and the 

environment. In the 30 years since that Amendment was passed, EPA’s studies and research 

have produced a growing body of evidence that overwhelmingly support a subtitle C regulation. 

III. RECONSIDERATION OF THE STUDY FACTORS OF SECTION 8002(N) OF 

RCRA, 42 U.S.C. § 6982(n) 

 In undertaking the “detailed and comprehensive study” required by the Bevill Amendment, 

EPA was required to consider adverse effects on human health and the environment from the 

disposal and utilization of CCRs taking into account eight specific factors.41 In the preamble to 

the proposed rule, EPA reiterates the factors that the Agency promised in 2000 to continue to 

review: 

“[T]he extent to which [the wastes] have caused damage to human health or the 

environment”; (2) the adequacy of existing regulation of the wastes; (3) the results 

of an NAS report regarding the adverse human health effects of mercury; and (4) 

“risk posed by managing coal combustion solid wastes if levels of mercury or 

other hazardous constituents change due to any future Clean Air Act air pollution 

control requirements for coal burning utilities.”42

EPA also specifically points to the need to consider new information on risk that was not 

available in 2000 and EPA states that its review could result in a subsequent revision to its 

                                                       

38 EPA, Office of the Inspector General, Response to EPA Administrator’s Request for Investigation into 

Allegations of a Cover-up in the Risk Assessment for the Coal Ash Rulemaking 6 (Rept. 10-N-0019) (Nov. 2, 2009), 

available at http://www.epa.gov/oig/reports/2010/20091102-10-N-0019.pdf. 

39 Id. at 3. 40 75 Fed. Reg. at 35,149. 

41 42 U.S.C. § 6982(n). 

42 75 Fed. Reg. at 35,137. 
12 

determination. 

 Thus, in the preamble to EPA’s proposed rule, the Agency reexamines the eight study 

factors set forth in section 8002(n) in light of “the most recent data . . . available.”43 Such 

reexamination is essential because considerable evidence has come to light since the 1988 and 

1999 Reports to Congress. Evidence concerning volume, toxicity, state program gaps, and 

damage reveal substantially heightened risk and documented adverse impacts on health and the 

environment from the disposal and utilization of CCRs. 

 As discussed infra, the applicability of the eight study factors to the agency’s ultimate 

listing decision is an important legal issue. Clearly, however, EPA considers evaluation of the 

eight factors of section 8002(n) central to the choice among the regulatory presented in the 

proposed rule: 

The final course of action will [ . . . ]result in the selection of a regulatory 

structure that best addresses the eight study factors identified in section 8002(n) of 

RCRA, and ensures protection of human health and the environment.44

In this section of our comments, each factor of section 8002(n) is evaluated in light of the 

considerable evidence and recent data that have come to light since EPA’s 2000 Final 

Determination. In section 8002(n), Congress instructed EPA to examine a wide range of factors: 

volume of coal ash; current disposal and use; potential danger from mismanagement, 

documented cases of proven threats to health and the environment, alternatives to current 

disposal, the cost of such alternatives, the impact of regulation on the use of coal and other 

resources, and current and potential reuse of coal ash. Reexamination of all eight study factors 

reveals that regulation of CCRs under RCRA subtitle C of RCRA is clearly warranted. 

A. Analysis of “The Source and Volumes of Coal Ash Generated Per Year” 

Underscored the Need for Subtitle C Regulation 

 EPA’s analysis of “the source and volumes of coal ash generated per year” must consider 

heightened risks from the substantial increase in volume of CCRs. As EPA points out in the 

preamble, the volume of CCR has increased substantially over the last two decades.45 The total 

estimated generation of CCR in the 1999 Report to Congress is about 25 percent smaller than the 

total tonnage of CCR estimated in EPA’s 2009 Regulatory Impact Analysis, reflecting an 

increase of over 35 million tons of annual waste generation. As EPA acknowledges, the 1988 

and 1999 Reports to Congress were based on a much smaller volume of CCRs.46 In fact, when 

Congress passed the Bevill Amendment in 1980, the total amount of coal ash generated 

(65,933,000 tons) comprised a volume 47 percent smaller than current generation (141,000,000 

tons).47 With the much larger volume of CCR comes a commensurate increase in the risk of 

harm posed by mismanagement. Larger volumes and higher total disposal costs have led some 

                                                       

43 Id. at 35,151. 44 Id. at 35,133. 45 Id. at 35,151. 46 Id. 47 ICF Resource, Inc., Coal Combustion Waste Management Study, (Docket ID No.: EPA-HQ-2006-0796 7 

(prepared for U.S. Dep’t of Energy) (Feb. 1993). 
13 

generators to dump their waste in increasingly risky ways, including in sham reuse projects,48 in 

aging, leaking, and unstable impoundments and landfills, and in active and abandoned mines. 

1. EPA Predicts Future Increases in Coal Ash Generation. 

 According to EPA, increasing coal use for electricity generation at existing plants and 

construction of a few new coal-fired plants will lead to modest annual production increases that 

average 1.1 percent per year from 2005 to 2015.49 As more coal is burned in coal-fired power 

plants, there is a commensurate increase in CCRs at the rate of 10–20% of the total amount of 

coal burned. The Energy Information Adminsistration (EIA) forecasts a 1.8% growth in coal 

production from 2015 to 2030. While this forecast is likely overstated, given that it assumes 

additions of coal-fired generating capacity and several coal-to-liquids (CTL) plants, EPA must 

assume that coal-fired power plants will continue to generate high volumes of waste for the 

foreseeable future.50 

There will also be an increase in future CCR generation from the increase in Clean Air 

Act-mandated emission controls. In response to current and proposed requirements, additional 

NOx control and flue gas desulfurization (FGD) systems for SO2 control will be more widely 

used. The installation of scrubbers will result in significant increases in the production of FGD 

sludge. Some estimates project a doubling or tripling of the number of wet scrubbers as a result 

of implementation of the Clean Air Interstate Rule (CAIR).51 According to EPA, over half of the 

U.S. coal-fired capacity is projected to be equipped with SCR and/or FGD technology by 2020.52

In fact, many coal plants across the country are in the process of installing new scrubber systems, 

and EPA predicts a 16% increase in scrubbed units between 2009 and 2015 alone.53 The 

increase in scrubber sludge and increased coal burning is estimated to raise the total CCR 

generated to 175 million tons by 2015.54

2. The Steep Rise in the Volume of CCR Increases Risks from CCR 

Mismanagement. 

 Larger volumes of coal combustion wastes translates into increased risks associated with 

disposal, including increased numbers of dangerous hazardous waste dumps, increased volume 

of toxics released to the environment, and increasingly widespread disposal in states where there 

is no effective regulation. 

                                                       

48 75 Fed. Reg. at 35,147 (citing the BBBS Sand and Gravel Quarries in Gambrills, Maryland). 

49 EPA, Materials Characterization Paper In Support of the Proposed Rulemaking – Identification of 

Nonhazardous Secondary Materials That Are Solid Waste Coal Refuse 3 (Mar. 18, 2010). 50 U.S. Dep’t of Energy, Energy Information Administration (EIA), Annual Energy Outlook 2007 with Projections 

to 2030 (Publication DOE/EIA-0383) (Feb. 2007). 

51 EPA, Characterization of Coal Combustion Residues from 

Electric Utilities – Leaching and Characterization Data (EPA-600/R-09/151), at 7 (Dec. 2009). 52 Id. 53 EPA, Steam Electric Power Generating Point Source Category: Final Detailed Study Report 4-1-4-6 (2009). 54 Memorandum from EPA, Clean Air Markets Division, to the Docket, entitled “Economic and Energy Analysis for 

the Proposed Interstate Air Quality Rulemaking” (Jan. 28, 2004). 
14 

a. New EPA Data on CCR Surface Impoundments Reveal a 

Far Greater Number of Units than Previously Known. 

 According to the 1999 Report to Congress, EPA estimated that there were approximately 

600 active CCR disposal units in total, including about 300 landfills and 300 surface 

impoundments.55 Following the catastrophic collapse of the coal ash dam at TVA’s Kingston 

Fossil Plant in December 2008, EPA realized that it had to obtain much more information on the 

universe of operating coal ash ponds. In response to that need, EPA sent industry-wide 

Information Collection Requests (ICRs) in March, April and December of 2009. Based on the 

ICR responses, EPA now has much more detailed and accurate information regarding the 

inventory of surface impoundments operated by the nation’s electric utilities. The Agency, in 

fact, received data on 629 surface impoundments. 

 The doubling of the estimated number of impoundments is not inconsequential. While the 

1999 Report to Congress assumed a 40-year operating life for CCR management units, it is clear 

from the new surface impoundment data that utilities are routinely employing disposal units for 

far longer than four decades.56 Sixty-four percent of the operating CCR surface impoundments 

(over 400 ponds) were built in the 1970s or earlier.57 The total surface area occupied by these 

waste ponds exceeds 31,000 acres—an area over twice the size of Manhattan. These ponds have 

the capacity to store more than 37.6 billion cubic feet of coal ash, enough ash to flow over 

Niagara Falls for more than four days straight. 

 Unfortunately, EPA did not send ICRs to utilities for information on landfills. 

Consequently, EPA is unable to estimate with accuracy the number of currently operating on-site 

and off-site CCR landfills. The Regulatory Impact Analysis contains an estimate similar to 

EPA’s 1999 figure, of slightly over 300 units. However, in view of EPA’s gross underestimate 

of the number of surface impoundments, one can expect that this figure similarly undercounts the 

total number of landfills operating today. 

b. According to the Toxic Release Inventory (TRI), the Volume 

of Hazardous Chemicals in Coal Ash Is Presently Enormous 

and Accumulating Rapidly in CCR Surface Impoundments 

and Landfills. 

According to EPA’s Toxic Release Inventory (TRI), the volume of hazardous chemicals 

in coal ash is presently enormous and accumulating rapidly in CCR surface impoundments and 

landfills. The disastrous spill of toxic coal ash from TVA’s Kingston plant dramatized how 

unsafe disposal practices can damage the environment and threaten the health of residents 

downstream. According to data reported by the industry to the TRI, power plants dump millions 

of pounds of toxic metals that are contained in coal ash into wet surface impoundments like the 

TVA pond that breached every year. Based on EPA’s analysis, approximately 74 percent of 

                                                       

55 1999 Report to Congress v. 2, at 3-21. 56 Id. at 3-66. 57 EPA, Information Request Responses from Electric Utilities, Database of Survey Responses, available at

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm. 
15 

these impoundments are unlined and over 400 are over 30 years old, increasing the risk that toxic 

pollutants such as arsenic and lead will leach into groundwater or nearby rivers and streams.58

Among many other metals, arsenic, chromium, lead, nickel, selenium, and thallium are 

present in coal ash. These metals are prone to leaching from ash into the environment and can be 

highly toxic at minute levels to either humans or aquatic life, or both.59 Between 2000 and 2009, 

the power industry reported disposal of coal ash containing more than 164 million pounds of 

these six toxic pollutants into surface impoundments.60 Each year, the power industry reports 

disposing well over 10,000 pounds of these metals into surface impoundments.61

In addition to disposal in wet ponds such as the Kingston impoundment, the power 

industry reported dumping approximately 215 million pounds of arsenic, chromium, lead, nickel, 

selenium, and thallium into landfills and other land disposal systems between 2000 and 2009.62 

Although not as dramatic as the Kingston spill, slow motion leaks from so-called “dry” landfills 

have contaminated groundwater and surface water across the United States.63 In total, the power 

industry was responsible for dumping over 379 million pounds of these six toxic pollutants into 

surface impoundments, landfills, and other land disposal systems between 2000 and 2009 

alone.64 Due to the lack of federal regulations establishing minimum safeguards, much of this 

pollution eventually makes its way into our drinking water sources, rivers, lakes, and streams. 

These numbers are just the tip of the iceberg. Although disposal of these six pollutants 

has gradually decreased over the past ten years, coal-fired generation has also declined from 

1,966,265 megawatt hours in 2000 to 1,764,486 megawatt hours in 2009.65 When coal-fired 

generation increases, the amount of coal combustion waste, and the toxic pollutants contained in 

                                                       

58 65 Fed. Reg. at 32,214, 32216 (reporting that 26% of all surface impoundments have liners). 

59 See Nat’l Research Council, Nat’l Academies, Managing Coal Combustion Residues in Mines 81–104 (2006), 

available at http://books.nap.edu/catalog.php?record_id=11592#toc. 60 See Attachment 1, Electric Utility Industry Disposal of Arsenic, Chromium, Lead, Nickel, Selenium, and 

Thallium in Surface Impoundments and Landfills. 61 Id. 62 See Nat’l Research Council, Nat’l Academies, Managing Coal Combustion Residues in Mines 81–104 (2006), 

available at http://books.nap.edu/catalog.php?record_id=11592#toc. 63 See EPA, Coal Combustion Waste Damage Case Assessments (July 9, 2007) [hereinafter 2007 EPA Damage Case 

Assessment]; Env. Integrity Project & Earthjustice, Out of Control: Mounting Damages From Coal Ash Waste Sites 

(Feb. 24, 2010) (Jeff Stant, ed.) [hereinafter Out of Control], available at

http://www.environmentalintegrity.org/news_reports/documents/OutofControlMountingDamagesFromCoal9AshWasteSites.pdf; Env. Integrity Project, Earthjustice, & Sierra Club, In Harm’s 

Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment 132–143 (Aug. 26, 2010) 

(Jeff Stant, ed.) [hereinafter In Harm’s Way], available at

http://www.environmentalintegrity.org/news_reports/documents/INHARMSWAY_FINAL3.pdf (documenting 

numerous coal combustion waste landfills that have contaminated ground and surface waters via direct discharges 

and leaks in disposal units). 

64 See Attachment 1, Electric Utility Industry Disposal of Arsenic, Chromium, Lead, Nickel, Selenium, and 

Thallium in Surface Impoundments and Landfills. During this same time period, the power industry reported 

recycling just 6,584,989 pounds of metals and metal compounds—significantly less than many other industries. 

Attachment 2, U.S. Envtl. Prot. Agency, TRI Transfers Off-Site for Further Waste Management (in pounds), for 

Metal and Metal Compounds, By Industry (2009), available at http://www.epa.gov/triexplorer/industry.htm. 65 Energy Info. Admin., Dep’t of Energy, Electric Power Monthly, tbl. 1.1 (Oct. 14, 2010), available at

http://www.eia.doe.gov/cneaf/electricity/epm/epm_sum.html. 
16 

this waste, will also increase. Furthermore, our analysis includes just ten years of data and only 

six of the twenty-seven metals commonly found in coal combustion waste. 

Attachment 3 identifies those plants that report disposing of the largest volumes of each 

pollutant between 2000 and 2009 to surface impoundments. At many plants, the amounts 

dumped into surface impoundments significantly exceed the disposal volumes at the Kingston 

facility. The data suggest that many communities are at risk, whether from sudden spills or the 

slow leaching of toxic pollutants from coal ash into the surrounding environment. Consider, for 

example: 

 Arsenic. EPA samples measured arsenic levels far above drinking water standards in 

nearby waterways after the spill from Kingston’s surface impoundment.66 According to 

TRI data, at least 18 facilities reported depositing more arsenic in coal ash impoundments 

than Kingston. Between 2000 and 2009, for example, the Gorgas steam plant in Parrish, 

AL reported depositing nearly four times the amount of arsenic placed in the TVA 

Kingston impoundment over the same period. 

 Chromium. The Kingston plant reported disposing of 724,000 pounds of chromium in 

surface impoundments between 2000 and 2009. But according to TRI data, the JM Stuart 

plant in Manchester, Ohio, tops the list for chromium disposal in impoundments, 

reporting 2,048,632 pounds between 2000 and 2009. A total of 16 facilities reported 

disposing of more chromium in surface impoundments than Kingston. 

 Lead. Duke’s Gibson station in Owensville, Indiana disposed of 1,483,276 pounds of 

lead in surface impoundments between 2000 and 2009, or about three times the amount 

reported in Kingston for the same period. Sixteen plants reported releasing more lead to 

surface impoundments than Kingston. 

 Nickel. The Gibson, JM Stuart, Ghent (Kentucky), Cayuga (New York), and Gaston 

(Alabama) plants reported the largest releases of nickel to surface impoundments 

between 2000 and 2009. Another fifteen plants disposed of nickel in amounts greater 

than Kingston between 2000 and 2009. 

 Selenium. The JM Stuart plant in Ohio disposed of more than 162,000 pounds of 

selenium in impoundments between 2000 and 2009, or over 3 times the amount reported 

by Kingston. A total of 14 facilities report releases of selenium between 2000 and 2009 

that exceed amounts disposed of in the Kingston impoundment. 

                                                       

66 Appalachian Voices, Results of ICP-OES Analyses of the TVA Ash Spill Samples Collected 12-27-08 

from the Emory River, 1, available at

http://www.appvoices.org/resources/Preliminary_TVA_Ash_Spill_Sample_Data_AppVoices_December% 

202008.pdf; and Shaila Dewan, Metal Levels Found High in Tributary After Spill, N.Y. Times, Jan. 2, 2009, at A12. 
17 

c. The Sources Generating the Greatest Volumes of CCRs Are 

Located in States that Have the Most Lax Disposal and 

Reuse Safeguards. 

 The sources of greatest coal ash generation tend to be where regulatory controls are the 

weakest. With the exception of Pennsylvania,67 state programs in the ten largest coal ashproducing are grossly deficient and lack many basic requirements for ensuring safe coal ash 

disposal. The top ten generating states, Pennsylvania, Texas, Ohio, West Virginia, Kentucky, 

Indiana, Florida, Georgia, North Carolina and New Mexico, together generate over fifty percent 

of the CCR produced in the United States annually. Section III.B.1 of these comments details 

the deficiencies of these and 27 other CCR-generating states. 

 

B. Consideration of the “Present Disposal and Utilization Practices” Reveals the 

Need for Subtitle C Regulation. 

Consideration of the “present disposal and utilization practices” reveals serious and 

widespread deficiencies in current state regulatory programs for disposal and reuse of CCRs, 

which has resulted in the construction and operation of unsafe storage and disposal units and 

dangerous reuse applications. 

1. The Failure of States to Regulate Adequately the Disposal of Coal 

Combustion Waste Supports the Need for Federal Standards under 

Subtitle C of RCRA. 

 EPA has identified the adequacy of state regulation of the management of coal 

combustion residuals (CCRs) as a “central issue” in its determination of whether to regulate 

CCRs under Subtitle C of RCRA.68 As discussed below, the glaring inadequacies of state 

regulatory authority make mandatory federal standards imperative for the protection of human 

health and the environment. Indeed, EPA’s own reports have documented extensive deficiencies 

in state regulation of coal ash landfills and surface impoundments. Following EPA’s request for 

comments, we conducted a comprehensive evaluation of the current landscape of state regulation 

of CCR disposal. Our analyses identify additional significant gaps in state programs, buttress 

EPA’s data that indicate state programs are inadequate to protect health and the environment, 

and further demonstrate why regulation under subtitle C is necessary to guarantee the safe 

disposal of CCR nationwide. 

a. EPA’s Own Reports Document the Substantial Gaps 

Persisting in State Regulatory Programs. 

 In its May 2000 Regulatory Determination, EPA expressed significant concern about the 

lack of adequate state regulation of CCR disposal.69 A decade later, many of the identified 

                                                       

67 Pennsylvania Department of Environmental Protection recently passed new regulations governing the disposal of 

CCR in coal mines. While Pennsylvania regulations remain inadequate in several areas, it cannot be said that the 

state regulations are among the worst in the nation, considering the protection recently afforded to dumping in 

mines. 

68 75 Fed. Reg. at 35,133. 

69 65 Fed. Reg. at 32,218. 
18 

regulatory gaps persist. Two EPA reports completed after the 2000 Regulatory Determination 

detail such continuing substantial deficiencies, finding that state regulations routinely lack 

requirements for essential safeguards for the disposal of CCR in landfills and surface 

impoundments.70 In April of this year, EPA updated its state regulatory analysis in the 

“Regulatory Impact Analysis.”71 The findings of these reports, as well as our recent analyses of 

state regulatory deficiencies, provide a solid basis for regulation of coal ash under Subtitle C of 

RCRA. 

 The 2010 RIA, prepared by the EPA’s Office of Resource Conservation & Recovery, 

illustrates a shocking absence of CCR disposal requirements across the nation. The report 

updated the 2005 DPRA Report’s examination of the regulatory programs of 34 states; both 

reports found basic safeguards for CCR disposal seriously lacking. Among the key findings of 

the 2010 RIA:

72

 85 percent of the states surveyed do not require groundwater monitoring and leachate 

collection at all surface impoundments (both new and existing). 

 45 percent of the states surveyed do not require post-closure groundwater monitoring at 

coal ash surface impoundments. 

 Over 50 percent of the states surveyed do not require liners for surface impoundments. 

 Over 50 percent of the states surveyed have no requirement for financial assurance for 

surface impoundments. 

 38 percent of the states surveyed do not require groundwater monitoring at all landfills 

(both new and existing). 

 26 percent of the states surveyed do not require fugitive dust controls at coal ash landfills. 

 15 percent of the states surveyed do not require liners, leachate collection systems, or 

financial assurance for coal ash landfills. 

 The 2006 DOE/EPA Report, which reviewed in detail the regulatory frameworks of 11 

states, also documented continuing substantial deficiencies in state regulation of CCR 

management. The report found that between 1999 and 2005 none of the states surveyed 

tightened regulatory controls on CCR landfill disposal; that is, no state added specific 

requirements governing liners, groundwater monitoring, leachate collection, closure and postclosure, siting, and financial assurance since the 2000 Regulatory Determination.73 In addition, 

the report identified four states (Alabama, Florida, Illinois, and Texas) that had relaxed certain 

                                                       

70 See DPRA Inc., Estimation of Costs for Regulating Fossil Fuel Combustion Ash Management at Large Electric 

Utilities Under Part 258 (Nov. 30, 2005), available at www.regulations.gov (Document ID No. EPA-HQ-RCRA2006-0796-0469) [hereinafter 2005 DPRA Report]; Dep’t of Energy and EPA, Coal Combustion Waste 

Management at Landfills and Surface Impoundments, 1994-2004 (Aug. 2006), available at www.regulations.gov 

(Document ID No. EPA-HQ-RCRA-2006-0796-0002) [hereinafter 2006 DOE/EPA Report]. 71 Office of Res. Conservation & Recovery, U.S. EPA, Regulatory Impact Analysis for EPA’s Proposed RCRA 

Regulation of Coal Combustion Residues (CCR) Generated by the Electric Utility Industry (Doc. No. EPA-HQRCRA-2009-0640-0003) (Apr. 2010), available at www.regulations.gov [hereinafter 2010 RIA]. 72 2010 RIA, at Appendix E, Baseline State Government Regulatory Requirements for CCR Disposal Units in Top34 Coal Utility States. 

73 2006 DOE/EPA Report, Table 22. 
19 

CCR disposal controls since 1988.74 According to the EPA,75 these four states collectively were 

responsible for generating 26.4 million tons of CCR, approximately 19% of total CCR 

generation in 2005.76 

 The report found that a substantial percentage of the large coal ash-producing states 

evaluated failed to mandate one of the most basic mechanisms for regulating waste disposal, 

namely the authority to permit CCR landfills and surface impoundments. Of the 11 states 

evaluated, five exempted CCR landfills from solid waste permitting requirements. Alabama 

excludes all CCR from its definition of solid waste; thus, solid waste permits are not required for 

CCR disposal. Similarly, Ohio exempts the large majority of its CCR by classifying it as 

“nontoxic,” and landfills at which nontoxic CCR is disposed do not require solid waste permits. 

Florida, Illinois, and Texas all exempt on-site disposal of CCR from solid waste permitting 

requirements. Because EPA estimates that 70 percent of CCR disposal involves company on-site 

disposal, the exemption of on-site units from permitting creates a significant gap.77 These five 

states generated 36.8 million tons of CCR in 2005—over 26 percent of the total CCW generated 

in the United States that year. The report identifies an additional three states (Colorado, 

Maryland, and Utah) that exempt on-site CCR landfills from state solid waste permitting 

requirements.78 In addition, the report only identified one state (Pennsylvania) that required 

solid waste permits for all surface impoundments receiving CCR.79 Based on these exemptions 

and exclusions, the report concluded that approximately 30 percent of all disposable coal ash 

generated in the United States is potentially totally exempt from solid waste permitting 

requirements.80 While the 2006 DOE/EPA Report points to other types of permits that may be 

issued for CCR management units (e.g., construction permits, NPDES permits, storm water 

permits),81 these are no substitute for a solid waste operating permit, without which the dangers 

posed by the mismanagement of coal ash are likely to have a significant negative impact on 

human health and the environment. 

 In addition to these wholly unacceptable gaps in the regulation of coal ash disposal that 

leave approximately 30% of the waste stream unregulated, many of the states in which solid 

waste permits are required for CCR management units do not make mandatory those regulatory 

controls that are needed to ensure adequate environmental protection. For landfills, the 2006 

DOE/EPA Report found that: 

 No state surveyed requires a composite liner for all coal ash landfills.82

                                                       

74 Id. The 2006 DOE/EPA Report also identifies nine states that reportedly tightened certain regulatory controls 

since 1988. However, the majority of such tightenings appear to have taken place before the 2000 Regulatory 

Determination. 

75 2010 RIA, Ex. 3D. 76 All references to percentage of total CCR in the U.S. are based on 2005 CCR generation data presented in Exhibit 

3D of the 2010 RIA. In 2005, a total of 141.2 million tons of CCR was generated in the U.S. The top ten generators 

of CCR in 2005 were Pennsylvania, Texas, Ohio, West Virginia, Kentucky, Indiana, Florida, Georgia, North 

Carolina, and New Mexico. 

77 75 Fed. Reg. 35,128, 35,158 

78 2006 DOE/EPA Report, tbl. 20. 79 Id. at A-18. 80 Id. at 46. EPA acknowledges this significant regulatory gap as part of the discussion of existing state regulatory 

oversight in the preamble to its proposed rules. 75 Fed. Reg. at 35,151. 

81 Id. tbl. 9. 82 Id. tbl. A.6. 
20 

 5 of the 11 states surveyed have no liner requirement for coal ash monofills.83

 5 of the 11 states surveyed do not require groundwater monitoring at coal ash landfills.84

 No state surveyed requires quarterly groundwater monitoring for the active life of a coal 

ash landfill.85

 5 of the 11 states surveyed do not require leachate collection systems at coal ash 

landfills.86

 The findings pertaining to surface impoundments, which pose even greater risks than 

landfills,87 revealed even more significant gaps in state regulatory authority: 

 Only one of the states surveyed requires solid waste permits for all coal ash surface 

impoundments.88

 Only one of the states surveyed requires groundwater monitoring at coal ash surface 

impoundments.89

 Only one of the states surveyed requires a leachate collection system at coal ash surface 

impoundments.90

 Only one of the states surveyed requires corrective action for coal ash surface 

impoundments.91

 Only one of the states surveyed requires financial assurance for coal ash surface 

impoundments.92

 Only three of the states surveyed require liners at coal ash surface impoundments.93

 Only two of the states surveyed have siting restrictions for coal ash surface 

impoundments restricting their distance from public water supply wells, other potable 

water supplies, inhabited dwellings, floodways, wetlands, and the groundwater table.94

 Even the most recent data submitted to EPA by the states themselves indicate that basic 

safeguards are simply not required by the majority of states. According to a survey by the 

Association of State and Territorial Solid Waste Management Officials (ASTSWMO), only 33 

percent of the states responding to the survey impose a requirement that coal ash surface 

impoundments have a liner, only 14 percent of the states require leachate collection at coal ash 

ponds, and only 31 percent of the states require financial assurance for coal ash ponds.95 It is not 

                                                       

83 Id. 84 Id. tbl. A.13. 85 Id. 86 Id. tbl. A.15. 87 See Office of Solid Waste & Emergency Response, EPA, Human and Ecological Risk Assessment of Coal 

Combustion Wastes 2-4 (draft) (Apr. 2010) [hereinafter 2010 Risk Assessment]. 

88 2006 DOE/EPA Report, tbl. A.4. 

89 Id. tbl. A.13. 

90 Id. tbl. A.15. 

91 Id. tbl. A.19. (only the five pilot states were surveyed for corrective action requirements). 

92 Id. tbl. A.22. (only the five pilot states were surveyed for financial assurance requirements). 

93 Id. tbl. A.6. 

94 Id. tbl. A.20 (only the five pilot states were surveyed for siting restrictions.) 

95 Association of State and Territorial Solid Waste Management Officials (ASTSWMO) Survey (Feb.–Mar. 2009), 

(Docket ID No. EPA-HQ-RCRA-2009-0640-0025), available at www.regulations.gov. 
21 

clear from the ASTSWMO survey how many states responded, so these percentages may, in fact, 

overestimate the number of states that have regulatory safeguards. 

b. EPA’s Reports Provide an Incomplete Picture of State 

Regulatory Deficiencies. 

As troubling as the regulatory deficiencies in EPA’s reports are, a more comprehensive 

analysis of state regulations reveal that the situation is much worse than previously understood. 

Both of EPA’s reports make clear that gross deficiencies in state regulatory authority persist, but 

even these reports fail to paint a complete picture of the abysmal state of current CCR 

management. For example, the 2006 DOE/EPA Report’s conclusion that “improved disposal 

unit management practices and State application of environmental regulations appear to be 

occurring”96 is based largely on self-survey data from a narrow sample of permitted new or 

expanded units in 11 states. As EPA has noted, new management units only represent about 10 

percent of all disposal units; it will take decades to replace the large collection of older units.97 

In addition, even if it can be assumed that the new permitted units described in the 2006 

DOE/EPA Report are an indication of future disposal practices—which is questionable—it is 

clear that the problem of CCR mismanagement is far from solved. According to the report, at 

least 40 percent of the landfills and 50 percent of the surface impoundments permitted between 

1994 and 2004 were not required to install composite liners.98 

The 2006 DOE/EPA Report contains the following pie charts to illustrate the distribution 

of liners installed in the new waste units.99

2006 DOE/EPA Report, Figure 3. Liner Types Reported for Landfills. 

                                                       

96 Id. at 67. 97 75 Fed. Reg. 35,128, 35,151. 

98 2006 DOE/EPA Report at 33. 99 Id. at 33–34. 
22 

2006 DOE/EPA Report, Figure 4. Liner Types Reported for Surface Impoundments. 

Furthermore, the 2006 DOE/EPA Report’s slightly improved incidence of liner use in 56 

new units lacks significance when one considers the universe of coal ash disposal units that 

RCRA regulations must cover. Focusing on new units and expansions ignores the vast majority 

of units at which coal ash continues to be disposed, thus grossly underestimating the scope of 

concern. The findings of the 2006 DOE/EPA Report are further limited by the survey’s 

exclusion of non-permitted units, vertical expansions of existing disposal units, and units that are 

not owned by electric utilities. 

 As discussed above, the 2006 DOE/EPA Report concluded that approximately 30 percent 

of the net disposable CCR generated in the United States is potentially totally exempt from 

regulation under state solid waste programs. While alarming in itself, this figure is actually an 

underestimation of the amount of potentially exempt CCR because it excludes the percentage of 

CCR that is totally exempt from regulation based on future beneficial reuse. According to EPA, 

approximately 50.1 million tons of CCR were beneficially reused and 10.5 million tons were 

dumped into mines in 2008, representing 45 percent of the total CCR generated that year.100 

Thus, well over half of all CCR generated in the United States is potentially exempt from solid 

waste regulation, either excluded completely from regulation (as in Alabama) or excluded by 

virtue of its future beneficial reuse. 

 The 2010 RIA likewise fails to express fully the deficiencies that plague the current 

landscape of state CCR disposal regulation. Of particular significance, the report drastically 

underestimates the inadequacy of state regulations by ignoring exemptions from and 

opportunities for variance of state regulatory requirements and by failing to distinguish between 

the mandatory requirement of essential safeguards and state standards that are merely 

discretionary. For example, the 2010 RIA’s survey of “Baseline State Governmental Regulatory 

Requirements for CCR Disposal Units in Top-34 Coal Utility States”101 ignores the fact that 

Alabama and Utah exempt CCR landfills from groundwater monitoring and engineering control 

requirements (despite the fact that such exemptions were documented in the 2006 DOE/EPA 

Report), that Ohio exempts its “nontoxic” CCR from such requirements, that Indiana exempts 

from certain requirements CCR that is disposed of at certain classes of landfill, and that five 

                                                       

100 75 Fed. Reg. at 35,151. 101 2010 RIA, Appendix E. 
23 

states exempt on-site CCR disposal from all requirements. In addition, our review of state 

regulations found that at least 13 states allow state regulators to grant variances from or waivers 

of regulations governing CCR disposal, and an additional five states leave the question of 

whether groundwater monitoring at CCR landfills is necessary up to the discretion of state 

regulators. Indeed, even the 2006 DOE/EPA Report documented 52 requests for variances from 

CCR disposal requirements, of which 47 were granted by state regulators.102 Nevertheless, the 

2010 RIA ignores this distinction, thereby allowing for gross exaggerations of the scope and 

effectiveness of state programs. 

 As EPA’s own reports have revealed, the discretion given to state regulators and the 

variances that they subsequently grant may significantly compromise the safety of a waste 

disposal unit. For example, West Virginia regulators waived the liner requirement for a leachate 

collection pond at two facilities,103 cover requirements at two structural fill sites, and allowed the 

construction of a landfill over an underground mine.104 Indiana regulators allowed the use of ash 

as a liner and cover at three facilities and waived the cover requirement at a second landfill.105

Georgia regulators waived entirely the leachate collection and treatment during the post-closure 

care period and daily cover;106 and Ohio regulators waived the cover requirements on two FGD 

sludge ponds.107 These variances reveal that when state law gives regulators discretion to waive 

basic safeguards such as liners and cover, the states use that discretion liberally. 

c. State Programs Are Incapable of Adequately Regulating the 

Disposal of Coal Ash. 

 As part of its June 2010 proposal for rulemaking, EPA requested comments on the 

current management practices of state programs, including the specific requirements that states 

have in place to regulate CCRs and the extent to which such requirements apply to older, 

existing units. We have reviewed the regulatory programs of 37 states, looking specifically at 

whether states have imposed requirements to address: (1) groundwater monitoring; (2) unit 

liners; (3) leachate collection systems; (4) financial assurance; (5) post-closure monitoring and 

maintenance; and (6) extent of permitting requirements—issues EPA has identified as having 

particular relevance to its decision-making process.108 Our analyses of these issues provide an 

up-to-date and more comprehensive understanding of the significant regulatory gaps that 

currently exist in state programs. (The full analysis is set forth in Attachment 4 to our 

comments.) Our conclusion is that these programs do not and cannot adequately protect health 

and the environment from the dangers posed by CCR disposal. Such gaps illustrate the necessity 

for EPA to promulgate expeditiously mandatory minimum federal standards under subtitle C of 

RCRA for the safe disposal of CCR. 

                                                       

102 2006 DOE/EPA Report, tbl. 23. 103 Id. at 57. 104 Id. at 66. 105 Id. at 58. 106 Id. 107 Id. at 59. 108 75 Fed. Reg. at 35,157. 
24 

Table 1. Overview of Mandatory State Requirements for CCR Disposal 

STATE REGULATORY 

REQUIREMENT

ALL (NEW AND

EXISTING)

LANDFILLS

ALL (NEW AND 

EXISTING) SURFACE 

IMPOUNDMENTS

NEW LANDFILLS NEW SURFACE 

IMPOUNDMENTS

Groundwater 

Monitoring 

(during operation) 

4 states/3.66%* 6 states/19.12% 7 states/13.24% 6 states/19.12% 

Composite Liner No states have 

retroactive liner 

requirements 

No states have 

retroactive liner 

requirements 

5 states/7.19% 4 states/19.61% 

Leachate Collection 

System 

No states have 

retroactive leachate 

collection 

requirements 

No states have 

retroactive leachate 

collection 

requirements 

12 states/30.21% 7 states/23.14% 

Daily Cover 7 states/25.99% N/Aa 7 states/25.99% N/A 

Dust Controls 13 states/39.37% 1 state/10.88% 13 states/39.37% 1 state/10.88% 

Run-off Controls 17 states/42.81% 3 states/13.7% 17 states/42.81% 3 states/13.7% 

Separation from Water 

Table 

No states have 

retroactive siting 

requirements 

No states have 

retroactive siting 

requirements 

21 states/56.64% 7 states/25.64% 

Financial Assurance 16 states/41.78% 4 states/15.85% 14 states/38.2% 3 states/14.17% 

Composite Final Cover 1 state/1.14% 1 state/1.14% 1 state/1.14% 1 state/1.14% 

Groundwater 

Monitoring 

(30 years after closure) 

5 states/25.64% 1 state/1.14% 5 states/25.64% 1 state/1.14% 

* Number of states out of 37 surveyed with requirement/percentage total CCR generated in U.S. in 2005 by states. 

a: We did not review daily cover requirements for surface impoundments. 

 The above table is a damning indictment of current state of regulatory programs, 

revealing a widespread absence of mandatory basic safeguards. For example: 

 Only 4 states (comprising less than 4 percent of the CCR generated in the U.S) require 

groundwater monitoring at all new and existing landfills in their states; 

 Only 6 states (comprising 19 percent of the CCR generated in the U.S.) require 

groundwater monitoring at all new and existing surface impoundments; 

 Only 5 states (comprising 7 percent of the CCR generated in the U.S.) require composite 

liners for all new landfills; and 

 Only 4 states (comprising 19 percent of the CCR generated in the U.S.) require composite 

liners for all new surface impoundments. 

Not only is the national picture dismal, but some of the largest coal ash-generating states 

in the country have no or nearly no coal ash regulatory programs. As described above, three 
25 

states—Alabama, New Mexico, and Utah109—exempt coal ash completely from regulation as a 

solid waste, leaving the disposal of CCR virtually unregulated. In addition, Ohio excludes 

virtually all CCR from regulation by classifying it as “nontoxic” and, therefore, exempt.110 

Texas excludes all coal ash that is disposed of on-site (defined as anywhere within 50 miles of 

the place of generation) or destined for beneficial reuse (the vast majority the state’s CCR) from 

regulation.111 In these states, which together generate approximately 33.4 million tons of CCR 

each year (almost a quarter of total CCR generated in the U.S.), none of the basic safeguards 

such as groundwater monitoring that EPA recognizes as necessary are required. 

i. States Fail to Require Groundwater Monitoring. 

 Despite the critical need to monitor for potential contamination of water resources at 

CCR disposal units, a majority of the states examined do not require groundwater monitoring for 

both existing and new CCR landfills. Commenters reviewed whether states required all of their 

operating landfills (and surface impoundments) to conduct groundwater monitoring, not just 

those built after a certain date. For the protection of public health, it is absolutely essential that 

all units be monitored. In fact, it is arguably more important for older units to be monitored 

because older units are more likely to be constructed without liners and leachate collection 

systems. When states “grandfather” older waste units, they likely are exempting a large 

proportion of the state’s waste disposal units, because both landfills and surface impoundments 

are used for many decades. 

The resulting analysis reveals that the majority of coal ash in the U.S. is not subject to 

mandatory groundwater monitoring when disposed in landfills. In addition to the states 

identified above that completely exempt all or most of coal ash disposal from regulation, at least 

seven other states provide for wholesale exemption from regulation of CCR that is disposed in 

on-site or in monofills, and another seventeen states leave the decision of whether to require such 

monitoring at landfills up to the discretion of state agency staff. Thus, at least 30 states (which 

as a whole generated 85 percent of the total CCR in the United States in 2005) lack mandatory 

groundwater monitoring requirements for both new and existing CCR landfills. Of the states in 

which groundwater monitoring of CCR landfills is mandatory, only semi-annual sampling is 

required. 

                                                       

109 Ala. Admin. Code r. 335-13-1-.03(12) (2010); N.M. Code § 20.9.2.7(S)(9) (2010); Utah Admin. Code r. § 19-6-

102(18)(b)(iii). 

110 Ohio Admin. Code 3745:27-01(S)(23) (2010). 111 30 Tex. Admin. Code §§ 335.2(d); 335.1(138)(H) (2010). 
26 

Table 2. Is Groundwater Monitoring Mandatory at CCR Landfills? 

Yes 

7 out of 37 states surveyed 

13.24% of total CCR 

7 states require groundwater monitoring at CCR landfills: IL, NH, NJ, NV, LA*, 

MO*, WV*; 4 of these states (IL, NH, NJ, NV) require monitoring at new and 

existing units (representing 3.66% of total CCR) 

No 

30 out of 37 states surveyed 

84.92% of total CCR 

3 states exclude CCR from the definition of solid waste: AL, NM, UT 

5 states leave question of whether to require monitoring to discretion of state 

regulators: AZ, KS, MD*, NC*, WI* 

12 states provide for variance of monitoring requirements: IA, KY*, MN*, NY, 

ND, OK*, SD, TN, VA, WA, WY, GA 

7 states exempt on-site or monofill disposal: CO, FL*, MS, MT, PA, TX* 

4 states exempt CCR that meets certain toxicity criteria: IN, OH, MI, SC 

*grandfathering of existing sites 

 Even fewer states require groundwater monitoring for all existing and new CCR surface 

impoundments. Of the 37 states examined, only six required any level of groundwater 

monitoring under state solid waste programs. Of those six, two states require monitoring of 

groundwater only after the closure of a disposal unit and one requires monitoring for surface 

impoundments located in specific areas associated with the water supply. Thus, at least 31 states 

(which as a whole generated 79% of the total CCR in the United States in 2005) lack mandatory 

groundwater monitoring requirements for all CCR surface impoundments. As discussed below, 

the fact that groundwater monitoring is not mandatory at the majority of CCR surface 

impoundments takes on particular significance in light of EPA’s assumption that states without 

groundwater monitoring requirements for surface impoundments are unlikely to implement 

Subtitle D criteria on their own accord. 

Table 3. Is Groundwater Monitoring Mandatory at CCR Surface Impoundments? 

Yes 

6 out of 37 states surveyed 

19.12% of total CCR 

6 states require groundwater monitoring at both new and existing CCR surface 

impoundments: LA, PA, WA, IL (only in recharge areas); MI (only after unit 

closure); VA (only after unit closure) 

No 

31 out of 37 states surveyed 

79.07 of total CCR 

2 states provide for variance of monitoring requirements: ND, NY 

5 leave question of whether to require monitoring to discretion of state regulators: 

KY, NJ, OK, WI, WV 

7 states specifically exclude or exempt CCR impoundments from monitoring 

requirements: AL, FL, IN, MT, NH, NM, CO* 

17 states have no groundwater monitoring requirements for CCR impoundments: 

AZ, GA, IA, KS, MD, MN, MO, MS, NC, NV, OH, SC, SD, TN, TX, UT, WY 

*grandfathering of existing units 

 Even in states where groundwater monitoring is mandatory or where regulators have 

exercised their discretion to require such monitoring, the specific requirements in place are not 

necessarily protective of health and the environment. For example, all of the states that require 

groundwater monitoring at CCR landfills require only that monitoring wells be sampled twice a 

year; yet semi-annual sampling is insufficiently protective. In order to ensure protection of 
27 

groundwater and early detection of any contamination as well as understand seasonal variations 

in sampling results, quarterly sampling must be required. 

Table 4. Is Quarterly Monitoring Required at CCR Landfills? 

Yes 

0 out of 37 states surveyed 

0% of total CCR 

None of the 7 states that require groundwater monitoring at CCR landfills require 

quarterly monitoring for active life of the unit. 

No 

37 out of 37 states surveyed 

98.19% of total CCR 

Illinois requires quarterly monitoring for first five years of operation, but then 

allows for less frequent monitoring. 

4 of the states with qualified groundwater monitoring requirements (e.g., variance 

available, on-site/monofill exemptions) require quarterly groundwater monitoring at 

CCR landfills: MI, NY, PA, WA (14.61% of total CCR) 

19 states call for semi-annual monitoring, in event groundwater monitoring is 

required at a particular unit: CO, FL, GA, IN, KY, LA, MS, MO, MT, NV, NJ, 

ND, SC, SD, TN, TX, VA, WV, WY 

3 states call for annual monitoring, in event groundwater monitoring is required at a 

particular unit: IA, OH, OK 

3 states leave monitoring frequency to the discretion of state regulators: MN, NH, 

IL (quarterly for first five years) 

8 states have no groundwater monitoring requirements whatsoever: AL, AZ, SK, 

MD, NC, NM, UT, WI 

Table 5. Is Quarterly Monitoring Required at CCR Surface Impoundments? 

Yes 

2 out of 37 states surveyed 

11.88% of total CCR 

2 states require quarterly groundwater monitoring at both new and existing CCR 

surface impoundments: PA, WA 

No 

35 out of 37 states surveyed 

86.31% of total CCR 

1 state requires semi-annual sampling: LA 

4 of the states with qualified groundwater monitoring requirements at CCR landfills 

(e.g., variance available, on-site/monofill exemptions) call for quarterly sampling 

when groundwater monitoring is conducted: CO, IL, MI, NY (14.61% of total 

CCR) 

6 leave question of whether to require monitoring to discretion of state regulators: 

KY, NJ, ND (semi-annual), OK, WI, WV (semi-annual) 

7 states specifically exclude or exempt CCR impoundments from monitoring 

requirements: AL, FL, IN, MT, NH, NM, VA (after unit closure) 

17 states have no groundwater monitoring requirements for CCR impoundments: 

AZ, GA, IA, KS, MD, MN, MO, MS, NC, NV, OH, SC, SD, TN, TX, UT, WY 

Similarly, few states require the adequate minimum number of downgradient monitoring 

wells. A minimum of three wells is necessary to determine the direction of groundwater flow 

and, thus, the existence and extent of contamination originating at a CCR disposal unit. 

However, only a handful of states require the installation and sampling of three downgradient 
28 

wells.112 Without the ability to properly define groundwater movement and the presence and 

location of contaminants, a groundwater monitoring program cannot be effective. 

Table 6. Are a Minimum of Three Downgradient Wells and One Upgradient Well 

Required at CCR Landfills? 

Yes 

4 out of 37 states surveyed 

9.09% of total CCR 

4 states require a minimum of three downgradient wells and one upgradient well at 

CCR landfills: NH, NJ, MO*, WV*; 2 of these states (NH, NJ) require monitoring 

at new and existing units (representing 0.65% of total CCR) 

No 

33 out of 37 states surveyed 

89.1% of total CCR 

7 of the states with qualified groundwater monitoring requirements (e.g., variance 

available, on-site/monofill exemptions) require a minimum of three downgradient 

wells and one upgradient well at CCR landfills: IN, NY, OK, PA, SD, VA, WA 

26 states do not require a minimum of three downgradient wells and one upgradient 

well at CCR landfills: AL, AZ, CO, FL, GA, IA, IL, KS, KY, LA, MS, MT, MN, 

MD, MI, NM, NC, ND, NV, OH, SC, TN, TX, UT, WI, WY 

*grandfathering of existing sites 

Table 7. Are a Minimum of Three Downgradient Wells and One Upgradient Well 

Required at CCR Surface Impoundments? 

Yes 

2 out of 37 states surveyed 

11.88% of total CCR 

2 states require a minimum of three downgradient wells and one upgradient well at 

CCR surface impoundments: PA, WA 

No 

35 out of 37 states surveyed 

86.31% of total CCR 

3 of the states with qualified groundwater monitoring requirements (e.g., variance 

available, on-site/monofill exemptions) require a minimum of three downgradient 

wells and one upgradient well at CCR surface impoundments: NJ, VA, WV 

32 states do not require a minimum of three downgradient wells and one upgradient 

well at CCR surface impoundments: AL, AZ, CO, FL, GA, IA, IL, IN, KS, KY, 

LA, MD, MI, MN, MO, MS, MT, NC, ND, NH, NM, NY, NV, OH, OK, SC, SD, 

TN, TX, UT, WI, WY 

ii. States Fail to Require Adequate Liners for CCR 

Landfills and Surface Impoundments. 

 The risks stemming from the lack of adequate groundwater monitoring requirements are 

exacerbated by the often parallel deficiencies in state regulation of landfill and surface 

impoundment design requirements. While EPA has stated that only composite liners are 

sufficient to protect human health and the environment,113 only 5 of 37 states mandate the 

installation of composite liners at all new CCR landfills and only 4 of 37 states require composite 

liners at all new CCR surface impoundments. Seven states lack any liner requirement for CCR 

landfills, composite or otherwise, and another 19 states exempt certain landfills from liner 

requirements or allow variance of such requirements by state regulators. 

                                                       

112 Indeed, EPA identifies only three states that require a minimum of four monitoring wells (one upgradient and 

three downgradient) at CCR landfills. 2010 RIA, at Exhibit E1. 113 A composite liner system that consists of two components: the upper component must consist of a minimum 30-

mil flexible membrane liner (FML), and the lower component must consist of at least a two-foot layer of compacted 

soil with a hydraulic conductivity of no more than 1×10(-7) cm/sec. 75 Fed. Reg. at 35,174. 
29 

Table 8. Type of Liner Required for New CCR Landfills 

Composite 

7.19% of total CCR 

5 states require a composite liner at CCR landfills: LA, MS, NC, NV, WI 

Clay 

10.33% of total CCR 

4 states require a clay liner at CCR landfills: MD, MO, NJ, WV 

Soil 

21.65% of total CCR 

5 states require a soil liner at CCR landfills: IL, IN, MI, NH, PA 

Variance available 

16.27% of total CCR 

10 states provide for variance of liner requirements at CCR landfills: 

GA, MN, NY, ND, OK, SD, TN, VA, WA, WY 

Exemption 

25.1% of total CCR 

6 states exempt certain CCR landfills from liner requirements: 

SC, FL, MT, CO, OH, TX 

No Requirement 

17.65% of total CCR 

7 states do not require liners at CCR landfills: 

AL, AZ, IA, KS, KY, NM, UT 

 The deficiencies in the regulation of surface impoundments are even more severe. 

Twenty-seven of the states that were reviewed have no liner requirement whatsoever for CCR 

surface impoundments. Indeed, some of the largest CCR-generating states (e.g., Texas, Ohio, 

Kentucky, and Indiana) lack this basic safeguard. The lack of adequate liners at CCR surface 

impoundments underscores the importance of mandatory groundwater monitoring. Without 

sufficient barriers separating the millions of gallons of wet coal ash that are stored in surface 

impoundments from the groundwater below, seepage of hazardous constituents into the 

groundwater is bound to occur. 

Table 9. Type of Liner Required for New CCR Surface Impoundments* 

Composite 

19.61% of total CCR 

4 states require a composite liner at CCR surface impoundments: 

LA, NY, PA, WV 

Clay 

3.79% of total CCR 

2 states require a clay liner at CCR surface impoundments: 

IL (only in setback/recharge zones), OK 

Soil 

5.36% of total CCR 

4 states require a soil liner at CCR surface impoundments: 

CO, ND, WA, WI

No Requirement 

69.43% of total CCR 

27 states do not require liners at CCR surface impoundments: 

AL, AZ, FL, GA, IN, IA, KS, KY, MD, MI, MN, MS, MO, MT, NJ, NV, NH, 

NM, NC, OH, SC, SD, TN, TX, UT, VA, WY 

iii. States Fail to Require Leachate Collection Systems for 

CCR Landfills. 

 Fewer than half of the 37 state programs we reviewed require leachate collection systems 

for CCR landfills, and only seven states require such systems for CCR surface impoundments. 
30 

Without leachate collection systems,114 liquids that collect at a landfill can compromise even the 

best liner system. The pooling of water above a liner causes the liner to become saturated, 

thereby exhausting its permeability and eliminating its effectiveness at leakage prevention. 

Table 10. Is a Leachate Collection System Mandatory for CCR Landfills?*

Yes 

12 out of 37 states surveyed 

30.21% of total CCR 

12 states require a leachate collection system at CCR landfills: 

LA, MI, MS, MO, MD, NH, NJ, NC, NV, PA, WV, WI

No 

25 out of 37 states surveyed 

67.98% of total CCR 

7 states do not require a leachate collection system at CCR landfills: AL, AZ, 

NM, IA, KS, KY, UT (17.65% of total CCR) 

8 states exempt certain CCR landfills from leachate collection requirements: CO 

(on-site), FL (on-site), IN (required only in karst), IL (monofill), MT (on-site), 

OH (nontoxic), SC (TCLP), TX (on-site) (34.06% of total CCR) 

10 states provide for variance of leachate collection requirements: GA (at 

monofills), OK, MN, NY, ND, SD, TN, VA, WA, WY (16.27% of total CCR) 

Table 11. Is a Leachate Collection System Mandatory for CCR Surface Impoundments?*

Yes 

7 out of 37 states surveyed 

23.14% of total CCR 

7 states require a leachate collection system at CCR surface impoundments: 

NJ, NY, ND, PA, WA, WV, WI

No 

30 out of 37 states surveyed 

75.05% of total CCR 

30 states do not require a leachate collection system at CCR surface 

impoundments: AL, AZ, CO, FL, GA, IN, IA, IL (requirement only applies on 

setback/recharge areas), KS, KY, LA, MD, MI, MN, MS, MO, MT, NV, NH, 

NM, NC, OH, OK, SC, SD, TN, TX, UT, VA, WY 

iv. States Fail to Control Fugitive Dust at CCR Landfills 

and Surface Impoundments. 

 Operational safeguards at CCR disposal sites are also severely lacking under current state 

regulatory programs. Only 7 of the 37 states evaluated require daily cover at CCR landfills. 

Seven additional states require cover, but not on a daily basis. Five states allow for variance or 

waiver of cover requirements, and 18 states had no cover requirement of any kind. Fewer than 

half of the states examined require fugitive dust controls at CCR landfills, , and only one state 

(Pennsylvania) has mandatory dust controls for CCR surface impoundments. Of the states that 

require dust controls, none requires specific measures for the control of dust on a daily basis; 

significant discretion is left in the hands of state permitting authorities and facility operators. 

EPA found, however, that daily cover was necessary to protect the health of residents near CCR 

landfills in its 2010 report, Inhalation of Fugitive Dust: A Screening Assessment of the Risks 

Posed by Coal Combustion Waste Landfills. The screening assessment found that daily cover 

was necessary to prevent NAAQS violations. 

                                                       

114 Leachate collection systems capture pollutants that may have escaped through the flexible membrane layer 

located above it. Pumps are employed to move the leachate out of the landfill where it can be treated to safe levels. 
31 

Table 12. Is Daily Cover Mandatory at CCR Landfills?* 

Yes 

7 out of 37 states surveyed 

25.99% of total CCR 

7 states require daily cover at CCR landfills: IL, LA, NV, NJ, NC, PA, WV 

No 

30 out of 37 states surveyed 

72. 2% of total CCR 

18 states do not require daily cover at CCR landfills: AL, AZ, FL (on-site), IN 

(required only at Type I), IA, KS, KY, MD, MI, MT (required only for Class 

II/on-site exempt), NH, NM, OH (nontoxic), SC (required only at Class III), TX, 

UT, VA, WA (53.64% of total CCR) 

7 states require some cover at CCR landfills, but not daily: MS, MO, ND, OK, 

TN, WI, WY (10.85% of total CCR) 

5 states provide for variance of daily cover requirements: CO (on-site), GA 

(monofill), MN, NY, SD (7.71% of total CCR) 

 Similarly, dust controls are necessary at CCR landfills to prevent exposure to airborne 

ash during landfill operations. Dumping, truck traffic on the surface of the landfill, and 

spreading can generate significant fugitive dust, sufficient to endanger the health of nearby 

residents. Our study found, however, that less than half of the states examined mandated dust 

controls at CCR landfills, and only a single state required dust controls at CCR surface 

impoundments. 

Table 13. Are Dust Controls Mandatory at CCR Landfills?* 

Yes 

13 out of 37 states surveyed 

39.37% of total CCR 

13 states require dust controls at CCR landfills: 

IL, IN, IA, MD, MI, MO, NV, NJ, NC, PA, SC, WV, WI 

No 

24 out of 37 states surveyed 

58.82% of total CCR 

15 states do not require dust controls at CCR landfills: AL, AZ, CO (on-site), FL 

(on-site), GA, KS, KY, LA, MS, MT, NH, NM, OH (nontoxic), TX, UT (46.85% 

of total CCR) 

9 states allow for variance of dust control requirements: MN, NY, ND, OK, SD, 

TN, VA, WA, WY (11.97% of total CCR) 

Table 14. Are Dust Controls Mandatory at CCR Surface Impoundments?* 

Yes 

1 out of 37 states surveyed 

10.88% of total CCR 

Only 1 state requires dust controls at CCR surface impoundments: PA 

No 

36 out of 37 states surveyed 

87.31% of total CCR 

36 states do not require dust controls at CCR surface impoundments: AL, AZ, 

CO, FL, GA, IL, IN, IA, KS, KY, LA, MD, MI, MN, MO, MS, MT, ND, NY, 

NH, NM, NC, NV, NJ, OH, OK, SC, SD, TN, TX, UT, VA, WA, WI, WV, WY 

v. States Fail to Require Run-on and Run-off Controls. 

 Good CCR landfill design includes run-on and run-off controls. Run-on must be diverted 

to prevent erosion to the landfill. Run-off of precipitation must be collected and managed to 

reduce the potential for off-site migration of contaminants. Less than half of the states examined 
32 

required such controls for CCR landfills and only three states required such controls for CCR 

surface impoundments. 

Table 15. Are Run-off Controls Mandatory at CCR Landfills? 

Yes 

17 out of 37 states surveyed 

42.81% of total CCR 

17 states require run-off controls at CCR landfills: IL, IN, IA, LA, MD, MI, MS, 

MO, MT, NV, NH, NJ, NC, PA, SC, WV, WI 

No 

20 out of 37 states surveyed 

55.38% of total CCR 

10 states do not require run-off controls at CCR landfills: AL, AZ, CO (on-site), 

FL (on-site), KS, KY, NM, TX, UT, VA (33.41% of total CCR) 

10 states allow for variance of run-off controls at CCR landfills: GA (monofills), 

MN, NY, ND, OH, OK, SD, TN, WA, WY (21.97% of total CCR)

Table 16. Are Run-off Controls Mandatory at CCR Surface Impoundments? 

Yes 

3 out of 37 states surveyed 

13.7% of total CCR 

3 states require run-off controls at CCR surface impoundments: LA, MI, PA 

No 

34 out of 37 states surveyed 

84.49% of total CCR 

31 states do not require run-off controls at CCR surface impoundments: AL, AZ, 

CO, FL, GA, IL, IN, IA, KS, KY, MD, MN, MS, MO, MT, NV, NH, NJ, NM, 

NY, NC, OH, SC, SD, TN, TX, UT, VA, WI, WV, WY 

3 states allow variance of run-off controls at CCR surface impoundments: ND, 

OK, WA

vi. States Fail to Require Isolation of CCR from 

Groundwater when Placed in Landfills and Surface 

Impoundments. 

Coal ash must be isolated from contact with groundwater to prevent the migration of 

toxic contaminants from the waste into the underlying water table. This is the purpose of an 

impermeable composite liner. When coal ash is placed in contact with water, or when the 

separation from the water table is insufficient, soluble metals in the ash will migrate to the 

underlying groundwater. Although mandating separation from the water table is one of the most 

basic tenets of proper waste management, 16 of 37 states place no restriction on the location of 

ash landfills with respect to the water table and 30 of 37 states place no restrictions with regard 

to the location of coal ash surface impoundments. 
33 

Table 17. Can CCR Landfills to be Constructed in the Water Table? 

Yes 

21 out of 37 states surveyed 

56.64% of total CCR 

21 states prohibit the location of CCR landfills within a certain distance of the 

water table: 

CO, IA, IL, MD, MI, MN, MS, NC, NH, NJ, NV, NY, OH, OK, PA, SC, TN, TX, 

WA, WI, WV 

No 

16 out of 37 states surveyed 

41.55% of total CCR 

16 states place no restriction on the location of CCR landfills with respect to the 

water table: 

AL, AZ, GA, FL, IN, KS, KY, LA, MO, MT, ND, NM, SD, UT, VA, WY 

Table 18. Can CCR Surface Impoundments to be Constructed in the Water Table? 

Yes 

7 out of 37 states surveyed 

25.64% of total CCR 

7 states prohibit the location of CCR surface impoundments within a certain 

distance of the water table: 

CO, NC, NY, OK, PA, WI, WV 

No 

30 out of 37 states surveyed 

72.55% of total CCR 

30 states place no restriction on the location of CCR surface impoundments with 

respect to the water table: 

AL, AZ, GA, FL, IA, IL, IN, KS, KY, LA, MD, MI, MN, MO, MT, MS, ND, NH, 

NJ, NM, NV, OH, SC, SD, TN, TX, UT, VA, WA, WY 

vii. States Fail to Place Other Location Restrictions on CCR 

Landfills and Surface Impoundments. 

 While Commenters did not conduct an independent assessment of state regulation of 

disposal unit location, EPA’s 2010 RIA includes a synopsis of state government restrictions on 

locating CCR landfills and surface impoundments for the top 25 coal usage states.115 The 2010 

RIA’s summary of six categories of location restrictions—water table, wetlands, floodplains, 

faulty areas, seismic zones, unstable karst terrain—highlights the inadequacy of state regulation 

of disposal unit siting. Only 5of the 25 states reviewed restricted the siting of CCR surface 

impoundments below the natural water table; only eight states placed such restrictions on CCR 

landfill siting. Only 5 of 25 states restricted the siting of CCR surface impoundments in wetland 

areas; 17 states restricted such siting for CCR landfills. Eight of the 25 states reviewed restricted 

locating CCR surface impoundments in floodplains; 20 of 25 states placed such restrictions on 

CCR landfills. A mere two states had restrictions on the siting of CCR surface impoundments in 

fault areas or seismic zones; seven states restricted locating CCR landfills in fault areas, and 

eight restricted such siting in seismic zones. Five states restricted the siting of CCR surface 

impoundments in areas of unstable (karst) terrain, and 12 states restricted the location of CCR 

landfills in such areas. 

                                                       

115 2010 RIA at 46–47. 
34 

viii. States Fail to Require Financial Assurances for CCR 

Landfills and Surface Impoundments. 

Financial assurance for landfills and surface impoundments is a critical safeguard and an 

important tool for ensuring safe waste disposal operations. Fewer than half of the states 

surveyed, however, require financial assurances for all CCR landfills, and only four states 

mandate financial assurances for all CCR surface impoundments. 

Table 19. Are Financial Assurances Mandatory for CCR Landfills? 

Yes 

16 out of 37 states surveyed 

41.78% of total CCR 

16 states require financial assurances for CCR landfills: GA, IN, IA, LA, MI*, 

MS, MO*, NV, NH, NJ, NC, PA, SC, SD, WV, WI 

No 

21 out of 37 states surveyed 

56.41% of total CCR 

6 states have no financial assurance requirement: AL, AZ, KS, MD, NM, UT 

(11.71% of total CCR) 

6 states exempt certain CCR landfills from financial assurances requirements: 

CO, IL, FL, MT, OH, TX (26.29% of total CCR) 

9 states allow for variance of financial assurance requirement: KY, MN, NY, ND, 

OK, TN, VA, WA, WY (18.41% of total CCR) 

* grandfathering of existing units 

Table 20. Are Financial Assurances Mandatory for CCR Surface Impoundments? 

Yes 

4 out of 37 states surveyed 

15.85% of total CCR 

4 states require financial assurances for CCR surface impoundments: 

LA, MI*, PA, ND 

No 

33 out of 37 states surveyed 

82.34% of total CCR 

33 states have no financial assurance requirement for CCR surface impoundments: 

AL, AZ, CO, FL, GA, IN, IA, IL, KS, KY, MD, MN, MS, MO, MT, NH, NJ, NY, 

NV, NM, NC, OH, OK,SC, SD, TN, TX, UT, VA, WA, WI, WV, WY 

* grandfathering of existing units 

ix. States Fail to Require Safe Closure of CCR Landfills or 

Surface Impoundments. 

 Our analyses revealed significant deficiencies in the states’ regulation of the closure of 

CCR disposal units at the end of their active lives. Only one of the state programs reviewed 

includes a mandatory requirement that final cover for all CCR landfills and surface 

impoundments include a composite element. Fourteen states require less protective materials 

such as clay or soil, and 22 state programs lack any mandatory requirements for final cover 

materials. Impermeable covers are essential for coal ash landfills and surface impoundments to 

prevent precipitation from infiltrating the closed unit. Impermeable covers are especially 

essential for coal ash landfills and ponds, because so many of these units are unlined. Water 
35 

percolating through a closed, unlined landfill will facilitate the migration of contaminants from 

the ash into the underlying groundwater. 

Table 21. Type of Final Cover Required for CCR Landfills 

Composite 

1.14% of total CCR 

1 state requires a composite final cover for CCR landfills: LA 

Clay 

21.69% of total CCR 

5 states require clay final cover for CCR landfills: 

MO, MD, PA, WV, WI

Soil 

17.14% of total CCR 

9 states require soil final cover for CCR landfills: 

IA, IL, IN, MI, MS, NJ, NH, NC, NV

Variance available 

16.27% of total CCR 

10 states allow for variance of final cover requirements for CCR landfills: GA, 

SD, VA, NY, ND, OK, TN, WA, WY, MN 

Exemption 

25.1% of total CCR 

6 states exempt certain CCR landfills from final cover requirements: 

CO, FL, MT, OH, SC, TX 

No Requirement 

16.85% of total CCR 

6 states have no final cover requirement for CCR landfills: 

AL, AZ, KS, KY, NM, UT

Table 22. Type of Final Cover Required for CCR Surface Impoundments 

Composite 

1.14% of total CCR 

1 state requires a composite final cover for CCR surface impoundments: LA 

Clay 

11.94% of total CCR 

2 states require clay final cover for CCR surface impoundments: OK, PA 

Soil 

2.68% of total CCR 

2 states require soil final cover for CCR surface impoundments: MI, WA

Removal upon closure 

3.72% of total CCR 

3 states require that CCR surface impoundments be removed upon closure: 

ND, NJ, NY

No requirement 

78.71% of total CCR 

29 states have no final cover requirement for CCR surface impoundments: AL, 

AZ, CO, FL, GA, IN, IA, IL, KS, KY, MD, MN, MS, MO, MT, NV, NH, NM, 

NC, OH, SC, SD, TN, TX, UT, VA, WI, WV, WY

Long-term post-closure monitoring of coal ash landfills and surface impoundments is 

critical to ensure that contaminants are not migrating from the disposal units. Early detection of 

contaminated groundwater is necessary to protect the health of nearby communities. Such 

monitoring is essential, once again, because of the hundreds of unlined landfills and ponds that 

are currently in operation or that have already retired. All units, both those that will close and 

those already retired, must be monitored so that leaks are detected before substantial migration 

can occur. Lastly, it is necessary that post-closure monitoring be at least 30 years because coal 

ash is not a stable material, and its condition changes over time. Especially if exposed to the 

water table or precipitation, coal ash will evolve slowly and release its harmful contaminants 

over the course of decades. A dump that is not releasing contamination five years after closure 

says absolutely nothing about its potential to poison groundwater 10, 20, 30 or 50 years later. 

According to EPA’s 2010 Risk Assessment, peak contaminant releases from CCR surface 

impoundments will not occur until over 70 years after waste placement, and the peak release 
36 

period for CCR landfills is thousands of years.116 A post-closure monitoring period of at least 50 

years is indeed reasonable and necessary. Almost no states, however, require a mandatory 

monitoring period of at least 30 years, as shown in the table below. 

Table 23. Is 30 Years of Post-Closure Groundwater Monitoring Required for CCR 

Landfills? 

Yes 

5 out of 37 states surveyed 

25.64% of total CCR 

5 states require post-closure groundwater monitoring for 30 years at all CCR 

landfills: 

LA, MI, MO, NV, WV 

No 

32 out of 37 states surveyed 

72.55% of total CCR 

32 states do not require post-closure groundwater monitoring for 30 years at all 

CCR landfills: 

AL, AZ, CO (on-site), FL (on-site), GA (variance for monofills), IL, IN (Type III 

exempt), IA, KS, KY, MD, MN, MS, MT (on-site), NH, NJ, NM, NY, NC (onsite), ND, OH, OK, PA, SC, SD, TN, TX (on-site), UT, VA, WA, WI, WY 

Table 24. Is 30 Years Post-Closure Groundwater Monitoring Required for CCR Surface 

Impoundments? 

Yes 

1 out of 37 states surveyed 

1.14% of total CCR 

1 state requires post-closure groundwater monitoring for 30 years at all CCR 

surface impoundments: 

LA 

No 

36 out of 37 states surveyed 

97.05% of total CCR 

36 states do not require post-closure groundwater monitoring for 30 years at all 

CCR surface impoundments: 

AL, AZ, CO, FL, GA, IL, IN, IA, KS, KY, MD, MI, MN, MS, MO, MT, NV, NH, 

NJ, NM, NY, NC, ND, OH, OK, PA, SC, SD, TN, TX, UT, VA, WA, WV, WI, 

WY 

x. Grandfathering of Existing Units Encourages 

Prolonging Life of Aging Ponds and Landfills. 

States routinely allow the continued operation of existing landfills and surface 

impoundments, without requiring the older units to comply with newly-imposed safeguards. 

This widespread practice encourages the use of existing units for as long as possible. In the 1999 

Report to Congress, EPA estimated that the average age of surface impoundments and landfills 

was about 40 years. Yet many ponds and landfills are operating for decades longer.117 Section 

III.B.1.d.i.2., infra, discusses in detail the aging of the nation’s fleet of surface impoundments. 

The continued operation and expansion of hundreds of ponds and landfills without liners, 

leachate collection systems, monitoring and other basic safeguards is another critical reason why 

regulation under subtitle C is essential. 

                                                       

116 2010 Risk Assessment, at 4-11. 117 See EPA, Coal Combustion Residuals Impoundment Assessment Reports, 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm. 
37 

d. The Results of EPA’s Analyses of State Regulations Differ 

from New Findings Presented by Commenters. 

EPA’s 2010 RIA purports to summarize the baseline state requirements for CCR landfills 

and surface impoundments.118 However, because the requirements outlined for certain states do 

not apply to all CCR disposal units in said states, such requirements fail to represent a baseline. 

Where a state requires groundwater monitoring at landfills, but exempts from such requirements 

those units that are located on-site at a power plant, it would be inaccurate to characterize 

groundwater monitoring at landfills as a minimum requirement. A regulatory baseline exists 

only where all units must meet certain minimum requirements. Thus, the “minimums” listed in 

Appendix E to the 2010 RIA are more properly characterized as potential requirements—

standards that might or might not apply to any particular disposal unit. 

The yes/no dichotomy utilized in Appendix E both overstates and oversimplifies 

regulatory requirements for the 34 state programs it attempts to summarize. For example, 

Exhibit E1 answers “Yes” for whether groundwater monitoring of CCR landfills is required in 

Colorado. While some landfills in Colorado may in fact require such monitoring, where CCR is 

disposed of on-site, Colorado’s waste management regulations do not require groundwater 

monitoring.119 In addition, and as discussed infra in section III.B.1.e., EPA’s yes/no assignments 

in Appendix E do not take into account the many states that allow for variance of regulatory 

requirements. Such oversimplifications are made with respect to the majority of states programs 

assessed in the 2010 RIA. Thus, EPA vastly overestimates the adequacy of current state 

regulation of CCR disposal. 

Our independent review of state regulatory authority reveals that the actual “baseline” of 

state regulation of CCR disposal is woefully inadequate. The following discussion and side-byside comparison of the discrepancies between EPA’s characterization of baseline state regulatory 

requirements and our analysis of such requirements demonstrates the shortcomings of the 2010 

RIA’s assessments as well as the lack of the minimum requirements necessary for the safe 

disposal of CCR. 

i. Groundwater Monitoring 

 1. CCR Landfills 

 In its review of groundwater monitoring requirements at CCR landfills, the 2010 RIA

indicates that 31 of 34 states surveyed require groundwater monitoring.120 However, this count 

is over-inclusive to the point of rendering the regulatory review meaningless. Our review of 

state regulations, on the other hand, revealed that mandatory groundwater monitoring of all CCR 

landfills is the exception rather than the norm (only 7 out of 37 states require groundwater 

                                                       

118 2010 RIA, Appendix E. 

119 6 CO ADC 1007-2:1-1.4(1). 120 2010 RIA, Exhibit E1. 
38 

monitoring at all CCR landfills) and that 2010 RIA significantly overstates the current level of 

state regulation.121 Table 25 presents a side-by-side comparison of the 2010 RIA’s 

characterization of state groundwater monitoring requirements at landfills with our review of the 

states’ requirements. The difference is dramatic. Based on the 2010 RIA’s count, one could 

assume that the majority of CCR disposal in the United States requires groundwater monitoring; 

this is not the case. Our analysis reveals the many exemptions and loopholes that allow CCR 

disposal to take place without any groundwater monitoring. 

                                                       

121 A detailed state-by-state regulatory analysis is set forth in Attachment 4 to these comments. 
39 

Table 25. Is Groundwater Monitoring Mandatory at CCR Landfills?

STATE 2010 RIA EX. E1 

(34-STATE REVIEW) 

EARTHJUSTICE 2010 37-STATE REVIEW

AL Yes No – CCR excluded from definition of solid waste 

AZ No No 

CO Yes No – on-site disposal exempta 

FL Yes No – on-site disposal exempta 

GA Yes No – variance available for monofillsb 

IA Yes No – variance available 

IL Yes Yes 

IN Yes No – Type III and IV landfills exemptc 

KS Yes No – left to discretion of regulators 

KY Yes No – variance available 

LA Yes Yes (but existing units grandfathered) 

MD No No – left to discretion of regulators 

MI Yes No – Type III and industrial waste landfills exempt 

MN Yes No – variance available 

MS Yes No – on-site exempta 

MO Yes Yes (but existing units grandfathered) 

MT Yes No – on-site exempta 

NC Yes No – left to discretion of regulators 

ND Yes No – variance available 

NH N/A Yes (but only limited requirements) 

NJ N/A Yes 

NM No No 

NV Yes Yes 

NY Yes No – variance available 

OH Yes No – nontoxic CCR exempt

OK Yes No – variance available 

PA Yes No – monofills exemptb 

SC Yes No – certain CCR exempt per TCLPd 

SD N/A No – variance available 

TN Yes No – variance available 

TX Yes No – on-site exempta and most CCR beneficially reused 

UT Yes No – CCR excluded from definition of solid waste 

VA Yes No – variance available 

WA Yes No – variance available 

WI Yes No – left to discretion of regulators 

WV Yes Yes (but existing units grandfathered) 

WY Yes No – variance available 

31 Yes/3 No 7 Yes/30 No 

(3 of 7 states requiring monitoring exempt existing landfills; 8 states had no 

requirement; 12 allowed for variance of requirements on the books; 10 

exempted significant sections of CCR) 

a: Most CCR disposal is onsite (approximately 70 percent). 

b: CCR is usually disposed in a “monofill” in which only CCR is placed. 

c: Indiana commonly classifies CCR as a type III waste. 

d: Since CCR rarely fails the TCLP test, see section III.C.1.b, infra, CCR will usually be exempt. 

 2. Surface Impoundments 

 The assessment of which states require groundwater monitoring at CCR surface 

impoundments that is presented in the 2010 RIA is of particular significance given EPA’s 
40 

assumption that “states with groundwater monitoring requirements at new units, or with some 

coverage of the units in question, would upgrade their existing programs to provide fuller 

coverage” following adoption of EPA’s Subtitle D option.122 (This is discussed in detail, infra, 

in section III.B.1.f.) After examining state regulations in 37 states, we determined that EPA has 

again greatly overestimated the extent of state regulatory requirements.123 The table below 

compares our findings with EPA’s findings in the 2010 RIA regarding groundwater monitoring at 

CCR surface impoundments. 

                                                       

122 2010 RIA at 124. 123 A detailed state-by-state regulatory analysis is set forth in Attachment 4 to these comments. 
41 

Table 26. Is Groundwater Monitoring Mandatory at CCR Surface Impoundments?

STATE 2010 RIA EX. E2 

(34-STATE REVIEW) 

EARTHJUSTICE 2010 37-STATE REVIEW

AL No No 

AZ No No 

CO Yes No – on-site disposal exempta 

FL Yes No – on-site disposal exempta 

GA No No

IA No No 

IL No Yesb

IN No No

KS No No 

KY Yes No 

LA Yes Yes 

MD No No 

MI Yes Yes – post-closure monitoring; only for nits closed in place as landfills 

MN Yes No 

MS No No

MO Yes No 

MT No No

NC Yes No 

ND Yes No – variance available 

NH N/A No 

NJ N/A No 

NM No No 

NV Yes No 

NY Yes No – variance available 

OH No No

OK Yes No – left to discretion of regulators 

PA Yes Yes

SC Yes No

SD N/A No 

TN No No 

TX No No 

UT Yes No 

VA No Yes – post-closure monitoring only 

WA N/A Yes – groundwater monitoring OR leachate detection system 

WI Yes No – left to discretion of regulators 

WV Yes No – left to discretion of regulators 

WY No No 

17 Yes/16 No 6 Yes/31 No 

a: Most CCR disposal is onsite (approximately 70 percent). 

b: While EPA’s summary indicates that Illinois does not require groundwater monitoring at CCR surface 

impoundments, we included Illinois in our count because groundwater monitoring is required for all surface 

impoundments located in specific areas, i.e., recharge areas and setback zones. 35 Illinois Admin. Code § 616.441. 

ii. Liner Requirements for CCR Landfills
42 

 The 2010 RIA’s review of engineering control requirements indicates that 23 of 34 states 

surveyed require composite liners at CCR landfills.124 As in the 2010 RIA’s assessment of states’ 

groundwater monitoring requirements, this count is dramatically over-inclusive. Our review of 

the relevant state programs found that only 3 states mandate composite liners at all new CCR 

landfills. The 2010 RIA again overstates the current level of state regulation by (apparently) 

including in its count states that may require composite liners at some units, but not without 

exception. The table below compares EPA’s characterization of liner requirements for CCR 

landfills with our review of the states’ requirements.125

                                                       

124 2010 RIA, Exhibit E3. 125 A detailed state-by-state regulatory analysis is set forth in Attachment 4 to these comments. 
43 

Table 27. What Type of Liners Are Required for CCR Landfills?

STATE 2010 RIA EX. E3 

(34-STATE REVIEW) 

EARTHJUSTICE 2010 37-STATE REVIEW

AL Composite No liner requirement 

AZ No No liner requirement 

CO Clay or synthetic No – on-site disposal exempta 

FL Composite or double No – on-site disposal exempta 

GA Composite No – variance available

IA No No liner requirement 

IL Clay or composite Soil 

IN Clay Soil for Type III/No liner requirement for Type IVb 

KS Composite No liner requirement 

KY No No 

LA Composite Composite 

MD No Clay 

MI Composite Soil 

MN Clay No – variance available 

MS Composite Composite

MO Composite Clay 

MT Composite No – on-site disposal exempta 

NC Composite Composite 

ND Clay or synthetic No – variance available 

NH N/A Soil 

NJ N/A Clay 

NM No No liner requirement 

NV Composite Composite 

NY Composite No – variance available 

OH Composite No – “nontoxic” CCR exempt

OK Composite No – variance available 

PA Composite Soil

SC Composite or clay No – certain CCR exempt per TCLPc 

SD N/A No – variance available 

TN Composite No – variance available 

TX Composite No – on-site exempt 

UT Composite No liner requirement 

VA Composite No – variance available 

WA Composite No – variance available 

WI Composite Composite 

WV Composite Clay 

WY Composite No – variance available 

23 composite 

6 clay 

5 no requirement 

5 composite 

4 clay 

4 soil 

10 allow for variance of liner requirements 

6 exempt certain units from liner requirements 

7 have no liner requirements 

a: Most CCR disposal is onsite (approximately 70 percent). 

b: Indiana commonly classifies CCR as a Type III waste. 

c: Since CCR rarely fails the TCLP test, see section III.C.1.b, infra, CCR will usually be exempt. 
44 

iii. Liner Requirements for CCR Surface Impoundments 

 The baseline for liner requirements at CCR surface impoundments is overstated by the 

2010 RIA.

126 The report identifies 12 states that require composite liners at all new CCR surface 

impoundments, whereas our review of state programs indicates that only four states require 

composite liners at such units. Again, EPA mischaracterizes the baseline and inappropriately 

attributes minimum requirements to states that do not actually require a particular liner type at 

every disposal unit. The 2010 RIA’s assessment would suggest that approximately half of the 

states subject to review have minimum liner requirements. However, as indicated in the table 

below, our analysis revealed that 27 of the 34 states reviewed have no minimum liner 

requirements for CCR surface impoundments.127

                                                       

126 2010 RIA, Exhibit E4. 127 A detailed state-by-state regulatory analysis is set forth in Attachment 4 to these comments. 
45 

Table 27. What Type of Liners Are Required for CCR Surface Impoundments? 

STATE 2010 RIA EX. E4 

(34-STATE REVIEW) 

EARTHJUSTICE 2010 37-STATE REVIEW

AL No No liner requirement 

AZ No No liner requirement 

CO Clay or soil Soil

FL Composite No liner requirement

GA No No liner requirement

IA No No liner requirement 

IL No Clay – only in setback/recharge areas 

IN No No liner requirement

KS Composite No liner requirement 

KY Composite No liner requirement 

LA Composite Composite 

MD No No liner requirement 

MI Clay or composite No liner requirement 

MN No No liner requirement 

MS No No liner requirement

MO Composite No liner requirement 

MT No No liner requirement

NC Composite No liner requirement 

ND Clay or synthetic Soil 

NH N/A No liner requirement 

NJ N/A No liner requirement 

NM No No liner requirement 

NV Composite No liner requirement 

NY Composite Composite 

OH No No liner requirement

OK Composite Clay 

PA Composite Composite

SC No No liner requirement

SD N/A No liner requirement 

TN No No liner requirement 

TX No No liner requirement 

UT No No liner requirement 

VA No No liner requirement 

WA No Soil 

WI Composite, synthetic, or 

clay 

Soil 

WV Composite Composite 

WY Composite No liner requirement 

12 composite 

3 clay 

1 soil 

18 no requirement 

4 composite 

2 clay 

4 soil 

27 have no liner requirements 
46 

e. The Disparity Between EPA’s Analysis of State Regulations 

and New Analysis by Commenters is Vast. 

There are profound implications to the significant disparity between EPA’s assessment of 

state regulatory requirements in the 2010 RIA and Commenters’ analysis, which is summarized 

above and set forth in further detail in Attachment 4. In the 2010 RIA,

128 the Agency relies 

primarily on its analysis of state laws to create its lists of engineering controls for surface 

impoundments and landfills found in Appendices F and K of the 2010 RIA. In these appendices, 

EPA lists hundreds of ponds and landfills (purportedly representing all 495 plants) and assigns 

levels of safeguards (e.g., types of liners, monitoring, leachate collection) on a plant-by-plant 

basis depending primarily on the Agency’s understanding of state law. In other words, EPA did 

not base these Appendices on specific knowledge of the actual facilities, but rather based on 

presumptive compliance with requirements that EPA assumed were applicable.129 Because EPA 

greatly overestimated the regulatory requirements of many states, this overestimation is reflected 

in the safeguards assigned to particular units. For example, for all coal ash ponds in Kentucky 

listed in Appendix F at Exhibit F3, EPA indicates that each pond has a composite liner, because 

EPA mistakenly interpreted Kentucky state law to require a composite liner (see Table 27, 

above). However, Kentucky does not require ponds to be lined, and thus the attribution of 

composite liners to all of these ponds is likely in error. It is more probable that all the coal ash 

ponds in Kentucky are unlined. 

What difference does this make? First it provides EPA with a false picture of the 

safeguards in place at existing units on a national scale. Because the evaluation of present 

disposal practices is a critical factor in EPA’s decision-making for this rule, it is absolutely 

critical that EPA have a much more accurate assessment of the systemic deficiencies in the 

regulations that apply (or not) to the enormous universe of operating landfills and surface 

impoundments. EPA must recalculate its assessment in Appendices F and K to more accurately 

assess the level of safeguards that really apply across the country. It defeats the fundamental 

purposes of RCRA to proceed on the false premise that coal ash is being managed more safely 

than it really is. 

Second, the overestimation of state regulatory requirements also has significant impact on 

the Agency’s calculation of costs and benefits in the 2010 RIA. EPA’s method of determining 

which states will adopt subtitle D regulations relies on the agency’s interpretation of state law. 

As described in detail below, by misinterpreting state regulatory requirements, EPA estimates 

that far more states will improve their state programs under a subtitle D rule. Because EPA 

proceeds to assign costs and benefits based on this over-optimistic calculation, the Agency 

assigns considerably more health and environmental benefits to state regulation pursuant to a 

subtitle D option than is appropriate. This phenomenon is described more fully in the section 

below and in Appendix A (Comments of Frank Ackerman). 

                                                       

128 See Appendix E of the 2010 RIA.

129 EPA may have added some data from a voluntary survey circa 1995, but if so, this information applies to a 

minority of units in the Appendices and is dated information. 
47 

f. The Predicted Failure of States to Adopt Subtitle D Criteria 

The gross deficiencies in many state programs discussed above will not be cured 

by EPA’s promulgation of federal criteria under subtitle D. Under subtitle D, states are 

not required to adopt the federal criteria, and, in fact, EPA predicts that a great many 

states will not do so. EPA projects what the post-D world will look like in some detail in 

the 2010 RIA by actually estimating the number and identity of states that will not adopt 

the subtitle D regulations. EPA performs this analysis in the context of determining the 

difference in cost and benefits between the subtitle C and D options. Since the 

engineering controls (the costs of the rule) are very similar under both options, EPA finds 

substantially lower costs to industry under subtitle D only by estimating a much lower 

compliance rate with the subtitle D regulations. EPA states in the preamble that “[t]he 

main differences in cost are based on the assumption that there will be less compliance or 

slower compliance under a RCRA subtitle D option.130 In turn, to calculate benefits, 

EPA assumes that some states will adopt and enforce the proposed subtitle D standards 

and that health and environmental benefits will accrue accordingly. Thus, assumptions 

about which states will adopt the subtitle D standards are central to the ultimate 

cost/benefit results for the subtitle D option in the RIA. 

 

 As discussed above, EPA assumes that a state will adopt a subtitle D program based on one 

factor: whether the state requires any groundwater monitoring at surface impoundments. (This 

goal of monitoring is to ensure early warning of poisons in drinking water long before harmful 

chemicals can reach the tap. Groundwater monitoring is relatively inexpensive and very 

effective, if done properly.) EPA examined 37 states to determine whether the states required 

any groundwater monitoring at all at coal ash ponds. Even if a state required monitoring at only 

new ponds, or only at ponds over a valuable aquifer, or only at ponds once a year for a very few 

parameters, this monitoring met the Agency’s low benchmark for assuming the state would 

incorporate additional, more stringent standards into its subtitle D program. EPA explains: 

To model the Subtitle D option, EPA assumed that states with groundwater 

monitoring requirements at new units, or with some coverage of the units in 

question, would upgrade their existing programs to provide fuller coverage – 

because they already have a regulatory infrastructure – but other states with no 

program would not.131

EPA further emphasizes that “states that do not currently regulate units would not change their 

practices simply because EPA issued national rules.”132 Thus, if a state has any regulations 

requiring groundwater monitoring, EPA predicts that those states will “upgrade their existing 

programs” and that industry in those states will be forced to comply with the subtitle D 

regulations. 

                                                       

130 75 Fed. Reg. at 35,139. EPA states, “The main differences in cost are based on the assumption that there will be 

less compliance or slower compliance under a RCRA subtitle D option. 

131 2010 RIA at 124. 132 Id. 
48 

 But based on EPA’s own analysis of 37 coal ash-generating states, the Agency concludes 

that 30 states would not upgrade their existing programs. EPA then calculated the amount of 

coal ash generated in those 17 states where EPA expected the subtitle D program to be adopted 

and where compliance with the regulations was expected. According to EPA, 48 percent of the 

coal ash generated in the United Stats is generated in those 17 states; Table 27, below, lists the 

30 states not expected to implement the subtitle D requirements and the 17 that are expected to 

do so. 

Table 28. Distribution of States According to 2010 RIA Analysis133 

Subset A 

States Expected to Implement Subtitle-D 

Requirements 

(17 states) 

(48% of disposed tonnage) 

Subset B 

States Not Expected to Implement 

Subtitle-D Requirements 

(30 states) 

(52% of disposed tonnage) 

Colorado 

Florida 

Kentucky 

Louisiana 

Michigan 

Minnesota 

Missouri 

North Carolina 

North Dakota 

Nevada 

New York 

Oklahoma 

Pennsylvania 

South Carolina 

Utah 

Wisconsin 

West Virginia 

Alabama 

Alaska 

Arkansas 

Arizona 

California 

Connecticut 

Delaware 

Georgia 

Hawaii 

Iowa 

Illinois 

Indiana 

Kansas 

Massachusetts 

Maryland 

Maine 

Mississippi 

Montana 

Nebraska 

New Hampshire 

New Jersey 

New Mexico 

Ohio 

Oregon 

South Dakota 

Tennessee 

Texas 

Virginia 

Washington 

Wyoming 

Note: Because there are no coal-fired electric utility plants in Idaho, Rhode Island, 

Vermont, and Washington, D.C., these areas are not listed in either subset above. 

 EPA explains how this benchmark relates to determining the costs and benefits of the rule 

as follows: “[g]iven these factors, the percentage of waste disposed of in states with some level 

                                                       

133 Rena Steinzor & Michael Patoka, Ctr. for Progressive Reform, Comments - Hazardous and Solid Waste 

Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from 

Electric Utilities, at 58 tbl.4 (Nov. 19, 2010) available at http://www.progressivereform.org. 
49 

of groundwater monitoring programs is a reasonable estimate of benefits for the subtitle D 

approach.”134 Thus, in the many comparative calculations of the costs and benefits of the C and 

D options that follow in the 2010 RIA, the Agency estimates that subtitle D will impose only 48 

percent of the cost of the subtitle C option, but in turn it will reap 48 percent of the benefits of 

the stronger option. For example, EPA finds under subtitle D that only 48 percent of 

groundwater contamination will be detected before extensive damage has occurred, and therefore 

only 48 percent of cancers will be prevented, as compared with 100 percent of cancers prevented 

under subtitle C.135 

All of these estimates hinge on EPA’s baseline assumptions about the current status of 

state regulation, and as explained above, EPA’s analysis of state law contains errors and 

attributes greater regulatory authority to many states than they actually have. Based on our own 

analysis of existing state regulations, we conclude that EPA has dramatically overestimated the 

percentage of benefits (and compliance) under subtitle D. We found, using the same criteria that 

EPA employed, that only six states had any mandatory requirements for groundwater monitoring 

at surface impoundments.136 Taking into account only these six states, the amount of coal ash 

generated in the states predicted to adopt comprehensive subtitle D regulations drops 

dramatically to only 19 percent of U.S. coal ash generated.137 Thus, our analysis reveals that 79 

percent, not 52 percent, of the coal ash generated in the United States would not be subject to 

mandatory monitoring requirements when disposed in an ash pond and would not be subject to 

more stringent regulation in a post-D world. 

 EPA’s predictions regarding the magnitude and location of noncompliance under subtitle 

D has tremendous implications for measuring the effectiveness of the subtitle D option to 

achieve EPA’s stated goal of “address[ing] the risks from CCRs”138 Simply by the numbers, it is 

apparent that subtitle D can only be marginally effective because it will bring less than half of 

the nation’s waste under control. Further, when looking at the states where EPA anticipates 

noncompliance and where the state regulatory programs will not improve, it becomes apparent 

that the risks of harm remain substantial under the proposed subtitle D scheme. The list of states 

that will not adopt federal guidelines includes five of the top ten coal ash-generating states. It 

includes states that collectively have 350 waste ponds and generate over 73 million tons a year of 

coal ash. The states are home to 48 of the 49 high hazard dams, 55 of the nation’s 71 significant 

hazard dams, and 69 damage cases. Included on this list are states such as Alabama that have no 

regulations whatsoever that apply to coal ash. 

 Again, this damning survey based on EPA’s analysis does not capture the full extent of 

the regulatory gap in the states. Based on our analysis, nine of the nation’s top ten CCR 

generating states will refuse to adopt the federal program. Accordingly, the coal ash waste 

stream that would continue to evade regulation in these states would balloon to 111 million tons 

annually. The states where programs will not improve are home to 107 of the country’s 137 

damage cases. Forty-eight of the nation’s 49 high hazard dams are in these states, as are 65 of 

                                                       

134 2010 RIA, at 124. 135 Id. 136 These six states are Illinois, Louisiana, Michigan, Pennsylvania, Virginia, and Washington. 137 See Table 3, supra. 138 75 Fed. Reg. at 35,128. 
50 

the nation’s 71 significantly rated dams, and 542 ponds in total. Attempting to address the threat 

to the nation from coal ash without addressing ash in these states is like trying to put out a fire 

with a squirt gun. 

 According to both EPA’s and our own analyses, Tennessee is one of the states that will 

not improve its program.139 Yet any rule intending to reduce the risks posed by coal ash should, 

at a minimum, ensure that another catastrophic spill of deadly magnitude like the one in 

Kingston will be avoided. This rule will do nothing of the sort for the majority of the waste 

generated in the United States—not in Tennessee nor in any of the other states where high hazard 

dams are found, save one. Lastly, the uneven geological distribution of benefits bestowed by a 

subtitle D rule has very significant environmental justice implications, which are discussed in 

section VII, infra. Given what EPA now knows about coal ash mismanagement in these 30 

states, it cannot assume that benefits will flow from allowing state regulation to continue under 

subtitle D, much less knowingly allow the mismanagement to continue under a “D” regime. 

2. The States’ Failure to Enforce Existing Subtitle D “Open Dumping” 

Guidelines has Resulted in the Proliferation of Illegal Open Dumps. 

The RCRA subtitle D guidelines that apply currently to the disposal of coal ash are found 

in 40 C.F.R. Part 257.140 The extent to which states are currently enforcing these guidelines 

offers a measure that EPA must use to predict the future effectiveness of subtitle D. In fact, the 

failure of any state to adopt these guidelines and the continuing failure of states to enforce the 

guidelines has resulted in the operation of numerous illegal “open dumps.” In short, given the 

lack of current subtitle D adoption and enforcement by states, the prognosis for new D guidelines 

is exceedingly grim. Today’s straightforward open dumping standards are routinely violated, yet 

these blatant violations appear to be wholly ignored by state regulators. 

Under RCRA, states must prohibit any solid waste management practice or disposal that 

constitutes the open dumping of solid waste.141 RCRA distinguishes between two kinds of solid 

waste disposal facilities—sanitary landfills and open dumps.142 Sanitary landfills have “no 

reasonable probability of adverse effects on health or the environment;” while open dumps are 

the solid waste disposal facilities that do present a risk of adverse effects.143 While RCRA 

clearly prohibits open dumps and the open dumping of solid waste,144 many CCR units have 

fallen through the regulatory cracks and are currently operating in violation of this federal 

prohibition. 

                                                       

139 Southern Alliance for Clean Energy, et al., The State of Coal Ash Regulation In Tennessee (Oct. 26, 2010), 

available at http://www.cleanenergy.org/index.php?/Reports-and-Publications.html. 140 Criteria for Classification of Solid Waste Disposal Facilities and Practices, 40 C.F.R. §§ 257.1–57.4. 141 42 U.S.C. §§ 6944(b), 6943(a)(2). 142 42 U.S.C. § 6944. 143 Id. 144 42 U.S.C. §§ 6941–49; 42 USC § 6945(a) (“Upon promulgation of criteria under section 6907(a)(3) of this title, 

any solid waste management practice or disposal of solid waste or hazardous waste which constitutes the open 

dumping of solid waste or hazardous waste is prohibited...”). 
51 

Rules promulgated pursuant to RCRA’s statutory prohibition describe the criteria used to 

define open dumps.145 The criteria pertaining to protection of surface water and groundwater are 

particularly relevant to coal ash disposal. In sum, a solid waste disposal facility or site will be 

deemed an open dump if (1) it contaminates an underground drinking water source beyond the 

solid waste disposal boundary,146 or (2) if it causes a discharge of pollutants in violation of the 

Clean Water Act.147 Many CCR disposal sites are in violation of the criteria, and examples of 

these violations are described below. 

a. Open Dumping Established by Groundwater Contamination 

The subtitle D guidelines define open dumps as solid waste management facilities that 

contaminate groundwater: “A facility or practice shall not contaminate an underground drinking 

water source beyond the solid waste boundary or beyond an alternative boundary. . . .”148 The 

regulation provides the following definitions to determine whether a facility meets this standard 

for constituting an “open dump.” To “contaminate” means to actively cause the exceedance of a 

maximum contaminant level (MCL) listed in Appendix I to 40 CFR 257.149 “Underground 

drinking water source” means either an active drinking water supply or a potential drinking water 

supply, defined as any groundwater with less than 10,000 mg/L total dissolved solids.150 “Solid 

waste boundary” means the perimeter of the disposal area, which in most cases is an area smaller 

than the property of the facility housing the dump.151 An “alternative boundary” might be used 

instead of the solid waste boundary to monitor compliance with the open dumping prohibition. 

An alternative boundary can be established by a state or by a court, but only if the state or court 

“finds that such a change would not result in contamination of groundwater which may be 

needed or used for human consumption.”152 All of the above can be summarized by saying that 

any coal ash disposal or storage causing an exceedance of a listed MCL in groundwater that 

might be used for drinking water is prohibited. Like all subtitle D regulations, responsibility for 

the enforcement of this prohibition rests with the states and citizens.153

States have not been able to meet this enforcement responsibility, as seen by the large 

number of apparent violations of the open dumping prohibition. These include the following coal 

ash dumps: 

                                                       

145 “Facilities failing to satisfy either the criteria in §§ 257.1 through 257.4 or §§ 257.5 though 257.30 are considered 

open dumps, which are prohibited under [42 USC § 6945].” 40 C.F.R. § 257.3. 

146 40 C.F.R. § 257.3-4. 147 Id. § 257.3-3. 148 Id.§ 257.3-4(a). 

149 Id.§ 257.3-4(c)(2). 150 Id.§ 257.3-4(c)(4). 151 Id.§ 257.3-4(c)(5). 152 Id.§ 257.3-4(b). 153 “The Congress finds with respect to solid waste...that...the collection and disposal of solid wastes should 

continue to be primarily the function of State, regional, and local agencies...” 42 USC § 6901(a). “Within one year 

of October 21, 1976, and from time to time thereafter, the Administrator shall...develop and publish suggested 

guidelines for solid waste management. Such suggested guidelines shall...provide minimum criteria to be used by 

the States to define those solid waste management practices which constitute the open dumping of solid waste or 

hazardous waste and are to be prohibited...” 42 U.S.C. § 6907(a). 
52 

 Duke Energy’s Gibson Generating Station, Princeton, Indiana: Wells downgradient of 

the CCR landfill have shown levels of arsenic exceeding the Appendix I limit of 50 

ug/L.154 The Indiana Department of Environmental Management has not taken official 

action.155

 Mirant’s Brandywine Coal Ash Landfill, Brandywine, Maryland: Levels of cadmium as 

high as 500 ug/L in onsite groundwater significantly exceed the Appendix I MCL of 10 

ug/L.156

 Consumer Energy’s Karn and Weadock Generating Facilities,Essexville, Michigan: 

Arsenic over 400 ug/L was detected in groundwater near the landfill and beyond property 

line.157

 Progress Energy’s Lee Plant,Goldsboro, North Carolina: Arsenic has been measured at 

up to 440 ug/L in groundwater migrating toward homes less than half a mile away.158

 Duke Energy’s Belews Creek Steam Station, Belews Creek, North Carolina: Groundwater 

monitoring since 2005 has shown arsenic exceeding Appendix I levels.159

 UGI’s Hunlock Power Station,Hunlock Creek, Pennsylvania: Multiple downgradient 

wells have shown arsenic concentrations exceeding Appendix I levels, as high as 119 

ug/L.160

 SCE&G’s Wateree Station in Eastover, South Carolina: On-site groundwater at over 100 

ug/L contains arsenic exceeding Appendix I standards.161

 Eastern Kentucky Power Cooperative’s Spurlock Station, Maysville, Kentucky: 

Groundwater has been documented beyond the landfill boundary with arsenic 

concentrations as high as 160 ug/L, exceeding Appendix I standards by over 3 times.162

                                                       

154 Appendix I retains an MCL for arsenic that is outdated. It is important to note that the Appendix I standard is 5 

times the current MCL of 10 ug/L. Despite the significantly higher arsenic standard, open dumping violations are 

still rampant at CCR disposal sites. 

155 Envtl. Integrity Project & Earthjustice, Out of Control: Mounting Damages from Coal Ash Waste Sites (Feb. 24, 

2010) at 19. 

156 Id. at 25. 157 Id. at 28. 158 Id. at 40. 

159 Id. at 50. 160 Id. at 81. 161 Id. at 89. 162 Env. Integrity Project, Earthjustice, & Sierra Club, In Harm’s Way: Lack of Federal Coal Ash Regulations 

Endangers Americans and Their Environment 69 (Aug. 26, 2010) (Jeff Stant, ed.) [hereinafter In Harm’s Way], 

available at http://www.environmentalintegrity.org/news_reports/documents/INHARMSWAY_FINAL3.pdf. 
53 

 First Energy’s Bruce Mansfield Power Plant, Little Blue Run Surface Impoundment, 

Greene Township, Pennsylvania:

163 Onsite groundwater wells show exceedances of 

Appendix I MCLs for fluoride and lead.164 Off-site residential wells have exceeded 

Appendix I MCLs for barium, cadmium, and lead.165

 Allegheny Energy’s Hatfield’s Ferry Power Station, Masontown Pennsylvania:

166

Groundwater exceeds Appendix I levels for arsenic, with concentrations as high as 3.4 

mg/L. Although Pennsylvania has been involved in enforcing surface water laws, it has 

taken no action on the groundwater issue. 

 AES’Cayuga Coal ash Disposal Landfill, Lansing, New York:

167 Groundwater wells have 

exceeded the Appendix I MCL for selenium. 

This is by no means a complete list. Table 29 shows the results of damage reports 

compiled by Environmental Integrity Project, Earthjustice, and Sierra Club.168 Forty sites fit the 

current definition of open dumping—these landfills and impoundments have caused on-site 

groundwater to exceed Appendix I MCLs. Fifty-four sites have caused groundwater to exceed 

current EPA MCLs—these sites would therefore be subject to the remediation requirements of 

the proposed changes to the subtitle D open dumping criteria. It is important to remember that 

groundwater monitoring requirements are often absent or inadequate. This list is limited to those 

sites for which data are available, but we expect that many more sites have been contaminating 

groundwater in violation of the RCRA regulations. Although this list is incomplete, it vividly 

demonstrates that faith in state enforcement of subtitle D regulations is misplaced. The current 

criteria, contrary to their statutory purpose, have failed to ensure that there is “no reasonable 

probability of adverse effects on health or the environment.”169 The proposed changes to the 

subtitle D criteria will not do anything to improve compliance, and if anything will make the 

situation worse (see Section VI.C infra).

                                                       

163 Id. at 161. 164 The Appendix I MCL for fluoride is 4 mg/L; groundwater concentrations have been as high as 6.4 mg/L. The 

lead concentrations have been as high as 2,700 ug/L, over 50 times higher than the Appendix I MCL of 50 ug/L. 

165 The Appendix I MCLs for barium, cadmium and lead are 1 mg/L, 0.01 mg/L, and 0.05 mg/L, respectively. 

Groundwater concentrations for these three metals have been as high as 6 mg/L, 0.85 mg/L, and 1.8 mg/L, 

respectively. 

166 In Harm’s Way, at 174. 167 Id. at 112. 168 Id. at 174; Out of Control. 169 42 U.S.C. § 6944(a). 
State Facility County Pollutant Maximum Result Federal Primary MCL Dates Exceeded Exceedance well(s) Appendix I MCL Date

AR Flint Creek Power

Plant

Benton Barium 2.4 mg/L 2 mg/L 1996 B‐02 1.0 mg/L 

Cadmium 0.01 mg/L 0.005 mg/L 1995 B‐01, B‐04, B‐05 0.01 mg/L 

Chromium 0.128 mg/L 0.1 mg/L 10/28/2009 NE‐01 N/A 

Lead 0.5 mg/L 0.015 mg/L 1996 B‐02 0.05 mg/L 

Selenium 0.152 mg/L 0.05 mg/L

5/2008 ‐ 1/2009 &

1/2010 (B‐02);

8/2009 (NE‐3)

B‐02; NE‐3 0.01 mg/L

5/200

1/2

8/2

Silver 0.2 mg/L N/A N/A N/A 0.01 mg/L 

AR Independence Steam

Station Independence Arsenic 0.016 mg/L 0.01 mg/L 1990‐1995 C‐409, C‐410 0.05 mg/L 

Cadmium 0.006 mg/L 0.005 mg/L 1990‐1995 C‐410 0.01 mg/L 

Lead 0.023 mg/L 0.015 mg/L 1990‐1995 C‐410 0.05 mg/L 

CT Montville

Generating Station

New London Arsenic 0.262 mg/L 0.01 mg/L 2007‐2009 MW‐1, MW‐6 0.05 mg/L 20

Beryllium 0.0138 mg/L 0.004 mg/L 2007‐2009 MW‐6 N/A 

DE NRG/Indian River Sussex Arsenic 1.45 mg/L 0.01 mg/L 0.05 mg/L

Chromium 0.211 mg/L 0.1 mg/L N/A 

Thallium 0.0084 mg/L 0.002 mg/L N/A 

FL C.D. McIntosh, Jr.

Power Plant

Polk Arsenic 0.0165 mg/L 0.01 mg/L 2010 29‐S, 19‐S, 21‐D, W‐ 9, 17‐S 0.05 mg/L 

FL

OUC/ Curtis Stanton

Energy Center Power

Plant

Orange Alpha radiation 65.4 pCi/L 15 pCi/L 2003 N/A 

FL Seminole Generating

Station

Putnam Arsenic 0.19 mg/L 0.01 mg/L 0.05 mg/L

Lead 0.15 mg/L 0.015 mg/L 0.05 mg/L

FL Big Bend Station Hillsborough Arsenic 0.110 mg/L 0.01 mg/L 2003 0.05 mg/L 

Thallium 0.016 mg/L 0.002 mg/L 2003 N/A 

Table 29. On-site groundwater data exceeding Federal Primary Maximum Contaminant Levels (MCLs) or RCRA MCLs.170 (Table adapted from “In Harm’s Way” and “Out of Control” damage reports.171) Shaded cells indicate exceedances; blank cells indicate unavailable data 170 40 C.F.R. § 257, Appendix I. 171 In Harm’s Way, at 124–31; Out of Control, at 19. 
55 

State Facility County Pollutant Maximum Result Federal Primary MCL Dates Exceeded Exceedance well(s) Appendix I MCL Dat

IA George Neal Station

North Woodbury Arsenic 0.218 mg/L 0.01 mg/L 2001‐2008 MW1R, MW3R, MW5R, MW19, 0.05 mg/L 

IA George Neal Station

South Woodbury Arsenic 0.0839 mg/L 0.01 mg/L 2000‐2008 MW2, MW10 0.05 mg/L 

IA Lansing Power

Station Lansing Arsenic 0.023 mg/L 0.01 mg/L 2002‐2010 MW11 0.05 mg/L 

IA Marion Plant Williamson Cadmium 0.088 mg/L 0.005 mg/L 2004‐2009 S1, S2, C1, S3, S5, 0.01 mg/L 

IL Venice Power

Station

St. Clair and

Madison

Arsenic 0.215 mg/L 0.01 mg/L 1996‐2009 MW5, MW6, MW7, MW1, MW4, MW3 0.05 mg/L 

Cadmium 0.006 mg/L 0.005 mg/L 1999 MW1 0.01 mg/L 

IL Rocky Acres CCB Vermillion Arsenic Exceedance* 0.01 mg/L 0.05 mg/L 

Barium Exceedance* 2 mg/L 1 mg/L

Chromium Exceedance* 0.1 mg/L N/A 

Lead Exceedance* 0.015 mg/L 0.05 mg/L 

IN Duke Energy/ Gibson

Power Plant

Gibson Arsenic 0.071 mg/L 0.01 mg/L 0.05 mg/L

KY Mill Creek Station Jefferson Arsenic 0.015 mg/L 0.01 mg/L 1994‐1995 MW‐2, PW‐1, PW‐ 0.05 mg/L 

KY Shawnee Fossil

Plant

McCracken Arsenic 0.012 mg/L 0.01 mg/L 2008 D‐77*** 0.05 mg/L 

Selenium 0.087 mg/L 0.05 mg/L 2008 D‐74A, D‐74B 0.01 mg/L 

LA Big Cajun 2 Power

Plant

Pointe Coupee

Parish

Selenium 1.32 mg/L 0.05 mg/L 1994‐1999 MW‐85B, MW‐85C, MW‐85D, MW‐85E 0.01 mg/L 

LA Dolet Hills Power

Station

De Soto Parish Arsenic 0.0156 mg/L 0.01 mg/L 12/2009 OW‐33 0.05 mg/L 

Lead 0.023 mg/L 0.015 mg/L 8/2009, 12/2009 OW‐36 0.05 mg/L 

Selenium 0.173 mg/L 0.05 mg/L 2008 MW‐2A 0.01 mg/L 

LA Rodemacher Power

Station Rapides Parish Arsenic 0.0575 mg/L 0.01 mg/L 2009 W‐4, W‐15, W‐17, W‐18, W‐21, W‐1 0.05 mg/L 

Lead 0.0209 mg/L 0.015 mg/L 2009 W‐9, W‐10 0.05 mg/L 

Table 29 (cont.) On-site groundwater data exceeding Federal Primary Maximum Contaminant Levels (MCLs) o

dumping MCLs. 

Shaded cells indicate exceedances; blank cells indicate unavailable data * Exceedances reported without numerical values ** Data read from graph *** Well reported as upgradient appears to be downgradient 
56 

State Facility County Pollutant Maximum Result Federal Primary MCL Dates Exceeded Exceedance well(s) Appendix I MCL Date

MD Mirant/Brandywine

Coal Ash Landfill Prince George's Cadmium 0.5 mg/L 0.005 mg/L B10 0.01 mg/L 

MI Karn/Weadock

Generating Facility Bay Arsenic 0.997 mg/L 0.01 mg/L 0.05 mg/L

NC Dan River Steam

Station Rockingham Lead 0.0392 mg/L 0.015 mg/L 1998‐2008 0.05 mg/L 

NC Duke/Belews Creek Stokes Arsenic 0.073 mg/L 0.01 mg/L 2007 OB‐4 0.05 mg/L 

Nitrate 158 mg/L 10 mg/L 10 mg/L

Selenium 0.02 mg/L 0.05 mg/L N/A N/A 0.01 mg/L

NC Full Circle/Swi ft Nash Arsenic 0.068 mg/L 0.01 mg/L 2004 0.05 mg/L 

Lead 0.093 mg/L 0.015 mg/L 2004 0.05 mg/L 

NC Progress/Cape Fear

Steam Plant

Chatham Chromium 0.1 m/L 0.1 mg/L N/A 

Lead 0.0533 mg/L 0.015 mg/L 0.05 mg/L

NC Progress/Lee Steam

Plant Wayne Arsenic 0.440 mg/L 0.01 mg/L 0.05 mg/L

Lead 0.047 mg/L 0.015 mg/L 0.05 mg/L 

NC Progress/Sutton

Steam Plant

New Hanover Arsenic 0.29 mg/L 0.01 mg/L 0.05 mg/L

ND Antelope Valley

Station

Mercer Arsenic 0.035 mg/L** 0.01 mg/L 1984‐2010 MP‐12A, MP‐13B, MP‐22 0.05 mg/L 

ND Leland Olds Station Mercer Arsenic 0.0789 mg/L 0.01 mg/L 1982‐2009 22‐ADB, 22‐ABC, 22‐ 0.05 mg/L 1

Lead 0.0716 mg/L 0.015 mg/L 2006 22‐DCC 0.05 mg/L 

NE Sheldon Station Lancaster Selenium 0.0728 mg/L 0.05 mg/L 2002‐2009 MW‐3 0.01 mg/L 2

NV

NV Energy/Reid

Gardener

Generating Station

Clark Arsenic 0.73 mg/L 0.01 mg/L 2007 14 wells 0.05 mg/L 

Chromium 0.11 mg/L 0.1 mg/L 2007 1 well N/A 

Nitrate 13 mg/L 10 mg/L 2007 1 well 10 mg/L 

Selenium 0.15 mg/L 0.05 mg/L 2007 12 wells 0.01 mg/L 

Table 29 (cont.) Onsite groundwater data exceeding Federal Primary Maximum Contaminant Levels (MCLs) or RCRA oShaded cells indicate exceedances; blank cells indicate unavailable data * Exceedances reported without numerical values ** Data read from graph *** Well reported as upgradient appears to be downgradient 
57 

State Facility County Pollutant Maximum Result Federal Primary MCL Dates Exceeded Exceedance well(s) Appendix I MCL Da

NY Cayuga Generation

Plant Tompkins Arsenic 0.019 mg/L 0.01 mg/L 2007‐2008 17 wells 0.05 mg/L 

Selenium 0.76 mg/L 0.05 mg/L 2007‐2008 MAGDXX‐8106 0.01 mg/L 

OH Cardinal Plant Jefferson Arsenic 0.1 mg/L 0.01 mg/L 2004 S‐2*** 0.05 mg/L OH Gavin Power Plant Gallia Alpha

Particles 1,497 pCi/L 15 pCi/L 2007 9801 N/A 

Arsenic 0.057 mg/L 0.01 mg/L 1994‐2008 7 wells including 94128 0.05 mg/L 

Barium 13.8 mg/L 2 mg/L 2008 94126*** 1.0 mg/L 

Cadmium 0.007 mg/L 0.005 mg/L 2008 9801 0.01 mg/L 

Lead 0.051 mg/L 0.015 mg/L 2008 9801 0.05 mg/L 

OH Muskingum River

Plant Washignton Alpha Particles 128 pCi/L 15 pCi/L 2005‐2008 M‐9612, OB‐2 N/A 

OK Northeastern

Station Oologah Arsenic 0.094 mg/L 0.01 mg/L 2008‐2009 MW2S,MW2D,MW 8S,MW8D 0.05 mg/L 

Barium 8.69 mg/L 2 mg/L 2008‐2009 MW7D 1 mg/L 

Chromium 0.225 mg/L 0.1 mg/L 2008‐2009 MW2S,MW2D,MW 8S,MW7D N/A 

Lead 0.208 mg/L 0.015 mg/L 2008‐2009 MW1D,MW2S,MW 2D,MW3S,MW6D, 0.05 mg/L 

Thallium 0.003 mg/L 0.002 mg/L 2008‐2009 MW1S, MW2S N/A 

OR Boardman Plant Morrow Selenium 0.019 mg/L 0.01mg/L 1987‐1989 053, 120 0.05 mg/L 

PA Bruce Mansfield

Power Station

Beaver Arsenic 0.036 mg/L 0.01 mg/L 2006‐2010 14 wells 0.05 mg/L 

Fluoride 6.4 mg/L 4 mg/L 1994‐2006 1 well 4.0 mg/L 

Lead 2.69 mg/L 0.015 mg/L 1996 2 wells 0.05 mg/L 

PA Hatfield's Ferry

Power Station

Greene Arsenic 3.419 mg/L (total ) 0.01 mg/L 2005‐2010 MW‐213A, MW‐ 217A, MW‐218A 0.05 mg/L 

Chromium 0.104 mg/L 0.1 mg/L 2009 MW‐217A N/A 

Table 29 (cont.) Onsite groundwater data exceeding Federal Primary Maximum Contaminant Levels (MCLs) or 

dumping MCLs.

Shaded cells indicate exceedances; blank cells indicate unavailable data * Exceedances reported without numerical values ** Data read from graph *** Well reported as upgradient appears to be downgradient 
58 

State Facility County Pollutant Maximum Result Federal Primary MCL Dates Exceeded Exceedance well(s) Appendix I MCL Date

PA Allegheny/Mitchell

Power Station Washington Arsenic 0.02 mg/L 0.01 mg/L 2007 GW‐4, GW‐5 0.05 mg/L 

PA Orion/Fern Valley

Landfill Allegheny Arsenic 0.363 mg/L 0.01 mg/L 1995‐2002 N/A 0.05 mg/L 1

PA RRI/Seward Indiana Antimony 0.1 mg/L 0.006 mg/L 2007‐2008 MW‐7 N/A 

Arsenic 0.02 mg/L 0.01 mg/L 2007‐2008 MW‐6R 0.05 mg/L 

Cadmium 0.041 mg/L 0.005 mg/L 2007‐2008 MW‐5R, MW‐6R, 0.01 mg/L 2

Chromium 0.33 mg/L 0.1 mg/L 2007‐2008 MW‐8R N/A 

Lead 0.05 mg/L 0.015 mg/L 2007‐2008 MW‐8R 0.05 mg/L 2

Selenium Exceedance* 0.05 mg/L 2007‐2008 MW‐6R, MW‐7R, 0.01 mg/L 2

PA UGI/Hunlock Power

Station

Luzerne Arsenic 0.119 mg/L 0.01 mg/L 1999‐2009 MW‐5, MW‐7, MW‐ 6 0.05 mg/L 1

SC Grainger Generating

Station Horry Arsenic 0.917 mg/L 0.01 mg/L 2000 4R, 3 0.05 mg/L 

SC SCE&G/Urquhart

Station

Aiken Arsenic Exceedance* 0.01 mg/L 0.05 mg/L 

SC SCE&G/Wateree

Station

Richland Arsenic 0.18 mg/L 0.01 mg/L 0.05 mg/L

SD Big Stone Power

Plant

Grant Arsenic 0.1322 mg/L 0.01 mg/L 2007‐2009 11 total wells 0.05 mg/L 2

Lead 0.1086 mg/L 0.015 mg/L 2007‐2008 BC‐1, BC‐101, BC‐5, 0.05 mg/L 

TN Cumberland Steam

Plant

Stewart Arsenic 0.022 mg/L 0.01 mg/L 2008‐2009 93‐2, 93‐1, 93‐2R, 93‐4 0.05 mg/L 

Selenium 0.15 mg/L 0.05 mg/L 2008‐2009 93‐2 0.01 mg/L 2

TN Gallatin Fossil Plant Sumner Beryllium 0.023 mg/L 0.004 mg/L 2008‐2009 GAF‐19R N/A 

Cadmium 0.0064 mg/L 0.005 mg/L 2008‐2009 GAF‐19R 0.01 mg/L 

Table 29 (cont.) Onsite groundwater data exceeding Federal Primary Maximum Contaminant Levels (MCLs) or 

dumping MCLs. Shaded cells indicate exceedances; blank cells indicate unavailable data * Exceedances reported without numerical values 

** Data read from graph *** Well reported as upgradient appears to be downgradient 
59 

State Facility County Pollutant Maximum Result Federal Primary MCL Dates Exceeded Exceedance well(s) Appendix I MCL Dates 

TN

Johnsonville Fossil

Plant Humphreys Arsenic 0.570 mg/L 0.01 mg/L 1986, 1988, 1991‐ 1994 C6, C1, (Area A); SS16, SS13 (Areas

2 & 3)

0.05 mg/L 1986, 1

1

Cadmium 0.260 mg/L 0.005 mg/L 1986, 1988, 1991‐ 1994 C5, C1, (Area A); SS16, SS13 (Areas

2 & 3)

0.01 mg/L 1986, 1

1

Chromium 0.16 mg/L 0.1 mg/L 1986, 1988, 1991‐ 1994 Active Ash Disposal Island N/A 

Lead 0.39 mg/L 0.015 mg/L 1986, 1988, 1991‐ 1994 C5, C1, (Area A); SS16, SS13 (Areas

2 & 3)

0.05 mg/L 1986, 1

1

TN Trans‐Ash CCW Landfill Benton Arsenic 0.27 mg/L 0.01 mg/L 0.05 mg/L

TN Chromium Exceedance* 0.1 mg/L N/A 

TN Lead Exceedance* 0.015 mg/L 0.05 mg/L TN Mercury Exceedance* 0.002 mg/L 2009 MW‐5, Gibson Wells 0.002 mg/L 2

TN John Sevier Fossil

Plant Hawkins Cadmium 0.0068 mg/L 0.005 mg/L 2008‐2009 0.01 mg/L 

TX

Fayette Power

Project (Sam

Seymour)

Fayette Arsenic 0.023 mg/L 0.01 mg/L 2009 C2L‐412 0.05 mg/L 

Selenium 0.0746 mg/L 0.05 mg/L 2009 RP‐67 0.01 mg/L 2

WV AEP/Mitchell

Generating Station Marshall Antimony Exceedance* 0.006 mg/L 2008 N/A 

Arsenic Exceedance* 0.01 mg/L 2005‐2006 0.05 mg/L 

Table 29 (cont.) On-site groundwater data exceeding Federal Primary Maximum Contaminant Levels (MCLs) or RCRA Shaded cells indicate exceedances; blank cells indicate unavailable data * Exceedances reported without numerical values ** Data read from graph *** Well reported as upgradient appears to be downgradient
b. Open Dump By Violating the Clean Water Act 

A second criterion defines open open dumps as facilities that discharge pollutants “in 

violation of the requirements of the National Pollutant Discharge Elimination System (NPDES) 

under Section 402 of the Clean Water Act.”172 Many coal plants are in violation of the Clean 

Water Act, either by discharging without a NPDES permit or by discharging in violation of a 

NPDES permit. These include the following: 

 Duke Energy’s Gibson Generating Station, Princeton, Indiana: Discharges of wastewater 

with selenium concentrations as high as 14 ug/L occur without a permit.173

 Mirant’s Brandywine Coal Ash Landfill, Brandywine, Maryland: A citizen suit alleges 

that this landfill has discharged arsenic, mercury, and other pollutants without a NPDES 

permit.174

 Reliant Energy’s Seward Generating Station,New Florence, Pennsylvania: For years an 

ash pile outfall has been discharging in violation of NPDES permit limits for iron, 

aluminum, manganese, and pH.175

 Reliant Energy’s Fern Valley Coal Combustion Waste Landfill, Elrama, Pennsylvania: It 

appears that over 90% of the water discharging from this site does not pass through 

permitted outfalls. The NPDES permit for the controlled outfall through which the small 

remainder flows does not include limits for arsenic, selenium or lead.176

 Portland Generating Station’s Bangor Quarry Ash Disposal Site, Bangor, Pennsylvania: 

Known discharges of boron, selenium, and cadmium are apparently unauthorized by the 

site’s NPDES permit.177

 American Electric Power’s John Amos Power Plant, Winfield, West Virginia: Discharges 

violate NPDES permit limits for selenium, contributing to selenium concentrations in the 

receiving waters that exceed state standards and concentrations in fish that exceed 

proposed EPA criteria.178

                                                       

172 40 C.F.R. § 257.3-3(a). 173 Out of Control, at 19. 174 Id. at 26. 175 Id. at 72. 176 Id. at 78. 177 Id. at 85–86. 178 Id. at 105–06. 
61 

 American Electric Power’s James M. Gavin Power Plant,Cheshire, Ohio: Discharges 

have exceeded NPDES permit limits for boron and Allowable Effluent Toxicity on 

multiple occasions.179

In addition to the NPDES violations noted above, some high and significant hazard dams 

have unpermitted seeps that discharge into surface water in violation of the Clean Water Act. 

Such violations would also constitute illegal open dumping under section 257.3-3. 

The documentation of seeps is found in the impoundment assessment reports generated as 

part of EPA’s national effort to assess the management of coal ash in surface impoundments 

following the collapse of the TVA dam. In 2009—2010, EPA assessed all of the known units 

with a dam hazard potential rating of “high” or “significant.” Inspection reports assessing the 

structural integrity of the impoundments were generated for each dam, and EPA subsequently 

posted the inspections on its website.180 An examination of these inspection reports reveals likely 

unpermitted seeps that discharge to surface water at the following two facilities: 

 Alabama Power Company’s William Crawford Gorgas Electric Generating Plant, 

Walker County, Alabama: The Rattlesnake Dam exhibits seepage of five gallons per 

minute. The seepage area is located just north of Riverbend Lane – only 500 feet from the 

Black Warrior River.181

 American Electric Power’s Big Sandy Power Plant, Louisa, Kentucky: Likely 

unpermitted overflow to the Big Sandy River.182

In sum, the regulation of coal ash disposal practices under subtitle D is intended to 

prevent the risk of adverse health and environmental impacts. The mechanisms built into the law 

include state-enforced prohibitions of unpermitted surface water discharges and groundwater 

contamination. Yet the risk is not diminished if states consistently fail to enforce the basic 

requirements of Subtitle D. The lists above show that many landfills and surface impoundments 

are discharging selenium and other pollutants in violation of NPDES permits and that seeps from 

surface impoundments and landfills discharge without abatement. Many more sites are leaching 

arsenic, fluoride, lead, and other contaminants into aquifers that are potentially or actively 

supplying drinking water. These prohibited “open dumps” illustrate that states are not enforcing 

current federal guidelines. The present guidelines are few and straightforward. It is 

unreasonable to believe that states will do a much better job with the much more complex 

guidelines proposed under EPA’s subtitle D option. 

                                                       

179 In Harm’s Way, at 124–31. 180 EPA, Coal Combustion Residuals Impoundment Assessment Reports, 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm. 181 PCR Eng’rs & Consultants, Final Report: CCR Impoundments Inspection Report, Gorgas Steam Plant, Walker 

County, Alabama (Sept. 2009), available at

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm. 182 CHA, Final Report: Assessment of Dam Safety, Coal Combustion Surface Impoundment (Task 3), American 

Electric Power, Big Sandy Generating Station, Louisa, Kentucky (Feb. 17, 2010), available at

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm. 
62 

3. Proliferation of Disposal Units Constructed and Operated without the 

Basic Safeguards Necessary to Prevent and Detect the Release of 

Contaminants. 

The failure of states to require basic safeguards has resulted in the proliferation of 

disposal units constructed and operated without the basic safeguards necessary to prevent and 

detect the release of contaminants. 

a. Present Disposal Practices: Disposal Units Continue to 

Display a Lack of Basic Safeguards. 

 As EPA indicates in the preamble, many coal ash disposal units, particularly surface 

impoundments, lack liners and groundwater monitoring systems. The 1999 Report to Congress 

reported that 74 percent of the surface impoundments and 43 percent of the landfills constructed 

before 1995 had no liners or soil-only liners and that 62 percent of the surface impoundments 

and 15 percent of the landfills lacked groundwater monitoring.183 Because these data were based 

on a voluntary industry survey of 181 facilities (less than a third of the operating disposal units) 

conducted by the Electric Power Research Institute, it is likely that the controls were 

overestimated when applied to the entire universe of disposal units.184 Another voluntary survey 

by the Utility Solid Waste Activities Group of 56 permitted units constructed or expanded 

between 1995–2004, revealed a much higher usage of liners and groundwater monitoring, but the 

data do little to change the percentage of units with basic controls since the new permitted units 

constitute less than 5 percent of the universe of operating landfills and impoundments.185

 There is no reason to expect a dramatic improvement in the overall picture of basic 

controls at coal ash disposal sites. As described in section III.B.1.c of these comments, supra, 

most states still do not require the installation of liners and groundwater monitoring and other 

basic safeguards. In fact, to reiterate, approximately 76 percent of the coal ash currently 

generated in the United States is managed in states that do not require groundwater monitoring at 

either existing or new surface impoundments. Monitoring of groundwater around CCR disposal 

unit is the single most important safeguard to prevent the poisoning of drinking water sources 

from the deadly constituents in CCR. But other critical safeguards are missing as well at a 

majority of coal ash disposal units. EPA in its preamble describes some of the available data. 

The docket contains additional detailed data concerning surface impoundments, informed by the 

response of utility companies to EPA’s information request letters. 

C. “The Potential Danger to Human Health and the Environment From the 

Disposal and Reuse of CCRs” Reveals the Need for Subtitle C Regulation. 

 Most fundamentally under RCRA and in keeping with Section 6982(n)(3), EPA must 

analyze the potential danger to human health and the environment from the disposal and reuse of 

CCR. To fulfill this statutory mandate, EPA must consider the toxicity of the waste and evaluate 

                                                       

183 65 Fed. Reg. 32,216. 184 2010 Risk Assessment, at 1-2 (citing Electric Power Research Institute (EPRI) Comanagement Survey). 185 EPA & U.S. Dep’t of Energy, Coal Combustion Waste Management at Landfills and Surface Impoundments, 

1994-2004, DOE/PI-0004, 2006 at 31-36. 
63 

the threat it poses in a variety of current and historical disposal scenarios, as well as a wide range 

of current reuse applications. There are robust data available demonstrating that the threat to 

human health and the environment posed by CCR from both current and past disposal and reuse 

is significant and increasing. This section reviews the data revealing rising toxicity, increasing 

waste volume, documented high risk to people and ecosystems, rampant historic 

mismanagement, and careless and dangerous reuse applications—all of which cause grave 

threats to health and the environment through poisoning of groundwater, surface water, air, soil 

and catastrophic collapse. 

1. Changes in Composition of CCR Pose New Risks. 

 EPA must account for the new risks posed by the escalating toxicity of CCRs that is 

resulting from installation of badly needed air pollution controls. According to EPA, use of air 

pollution control (APC) technologies at coal-fired power plants to reduce mercury emissions and 

other pollutants will be responsible for significant changes in the chemical and physical 

properties of CCRs. These air pollution control technologies include the use of selective catalytic 

reduction for post-combustion NOx removal, electrostatic precipitators or fabric filters for 

particulate capture, sorbent injection for increasing mercury control, and flue gas desulfurization 

or other scrubber technologies to reduce acidic gases in the stack emissions. The multi-pollutant 

controls will reduce the air emission of multiple pollutants, but it will also result in the transfer of 

the pollutants from the flue gas to the CCRs. 

 Changes in APC technologies also will result in a greater amount of residue generated for 

each unit of electricity produced and an overall increase in the total content of mercury and other 

hazardous air pollutants (e.g., arsenic, selenium, chromium) in fly ash, FGD residues, and other 

APC residues.186 The mobility of metals may also be altered as a result of changes in material 

pH, carbon and chloride content, and interaction with the broader class of CCRs, including 

pyritic coal rejects from coal washing or high-sulfur coal rejects.187 Emerging APC technologies 

are also likely to create new APC residues, such as spray dryer ash or spent sorbents from 

mercury or post-combustion NOx control technology. 

 While EPA predicts far greater use of such technologies in the years to come, the agency 

has also documented that the change is well underway. Since coal-fired power plants represent 

the largest source of anthropogenic mercury emissions in the United States,188 the EPA is 

                                                       

186 Susan A. Thorneloe, EPA, et al., Evaluating the Fate of Metals in Air Pollution Control Residues from CoalFired Power Plants, 44 Envtl. Sci. Technol. 7,351, 7,351 (Aug. 31, 2010) [hereinafter Thorneloe, Evaluating the 

Fate of Metals], available at http://pubs.acs.org/doi/pdfplus/10.1021/es1016558 ( citing C. Senior,S. Thorneloe, B. 

Khan, & D. Goss, Fate of Mercury Collected from Air Pollution Control Devices, Envtl. Mgmt 15–21 (2009); and J. 

Kilgroe et al., Control of Mercury Emissions from Coal-Fired Electric Utility Boilers: Interim Report (EPA-600/R01-109) (Dec. 2001) (prepared for the Office of Research & Dev., Nat’l Risk Mgmt & Research Lab.)). 187 Id.; Electric Power Research Institute, Impact of Air Emissions Controls on Coal Combustion Products (EPRI 

1015544) (2008); D.S. Kosson et al., Characterization of Coal Combustion Residues from Electric Utilities - 

Leaching and Characterization Data (EPA- 600/R-09/151) (Dec. 2009) (prepared for EPA, Office of Research 

&Dev., Nat’l Risk Mgmt. & Research Lab.); and F. Sanchez, et al., Environmental assessment of waste matrices 

contaminated with arsenic, 96 J. Hazardous Materials 229–257 (2003). 188 U.S. Gov’t Accountability Office, Mercury Control Technologies at Coal-Fired Power Plants Have Achieved 

Substantial Emissions Reductions (2009). 
64 

developing regulations to reduce mercury and other hazardous air pollutants from power plant 

stack emissions. These regulations will likely result in expanded use of activated carbon 

injection (ACI).189 A draft Consent Decree calls for the proposed rule no later than March 16, 

2011 and a final rule no later than November 16, 2011.190 But not all states are waiting for EPA. 

In fact, 20 states have already implemented mercury regulations.191 A recent report indicated that 

12 GW of coal-fired generated electricity already has ACI in use for mercury control and that 

there are contracts in place to install mercury controls at over 60 GW of additional coal-fired 

generation.192

 Coal-fired power plants are also rapidly installing scrubbers to reduce SO2emissions. Both 

wet and dry FGD processes are used, producing different types of FGD solids varying from dry 

powder to wet sludges.193 With the promulgation of the EPA’s Clean Air Transport Rule 

(CATR), which will replace the Clean Air Interstate Rule (CAIR), over half of the U.S. coalfired capacity is projected to be equipped with SCR and/or FGD technology by 2020.194 A 

survey conducted of 368 coal-fired utility boilers adding FGD technology found 316 will be lime 

or limestone-based, with up to 225 expected to use either lime or limestone forced oxidation 

resulting in FGD gypsum.195 The remaining utility boilers will use some form of dry scrubber. 

All FGD residues will be increasing in response to CAIR requirements with a doubling or 

tripling in the amount of FGD gypsum.196 In addition, the current practice of seasonal use of 

post-combustion NOx control will likely be extended to year-round implementation. 

 In short, these necessary advances in air pollution controls have serious implication for 

CCR toxicity. The impact of these changes in air pollution control on the characteristics of 

CCRs and the leaching potential of metals is the focus of ongoing research by EPA’s Office of 

Research and Development (ORD).197 However, there is enough data available already to 

suggest that increasing toxicity puts a premium on protective regulation. 

a. More Accurate Testing Confirms CCR Toxicity. 

 Since 2006, ORD has published three reports that examine the fate of mercury and other 

heavy metals in air pollution control residues to ensure “that emissions being controlled in the 

flue gas at power plants are not later being released to other environmental media” such as 

drinking water sources, rivers and streams.198 EPA describes the results of the ORD studies at 

                                                       

189 Thorneloe, Evaluating the Fate of Metals, at S4 (providing Supporting Information). 

190 Id. (citing U.S. District Court for the District of Columbia, Civil Action No. 08-2198. In 1:08-cv- 02198-RMC, 

(2010), available at http://www.eenews.net/features/documents/2010/04/15/document_pm_01.pdf. 

191 Thorneloe, Evaluating the Fate of Metals, at S4. 

192 Id.

193 Id. at S7. 

194 Id. at S4. 

195 Id. at S7. 

196 Id.

197 75 Fed. Reg. at 35,139. 

198 EPA, Office of Research and Development, Characterization of Coal Combustion Residues from Electric 

Utilities—Leaching and Characterization Data (EPA/600/R-09/151) at ii (Dec. 2009), available at

http://www.epa.gov/nrmrl/pubs/ 600r09151/600r09151.html (citing EPA, Characterization of Mercury- Enriched 

Coal Combustion Residuals from Electric Utilities Using Enhanced Sorbents for Mercury Control (EPA–600/ R–
65 

some length in section I.E.2. of the preamble to the 2010 Proposed Rule.199

 Central to these ORD studies is the rejection of an older leach test, the toxicity 

characteristic leaching procedure (TCLP). Historically, estimating metal release from CCRs has 

been based on the results of a single-point extraction test, the TCLP, which was designed to 

simulate a single “mismanagement” or near-surface disposal scenario.200 For nearly two 

decades, however, the EPA Science Advisory Board (SAB) has identified significant problems 

with the accuracy of the TCLP. In 1999, in fact, the SAB wrote a pointed letter to EPA 

Administrator Carol Browner, criticizing EPA’s continued reliance on the TCLP, stating 

definitively “it is time to make improvements.” In unequivocal terms, the SAB stated “The 

Committee’s single most important recommendation is that EPA improve leach test 

procedures, validate them in the field, and then implement them.”201 In 2006, the National 

Academy of Sciences also acknowledged the inaccuracy of the TCLP and weighed in with 

explicit criticism of its use for testing coal ash.202

 Since at least 2006, the EPA itself has acknowledged the need for a more sensitive test that 

would vary the pH of the leaching solution because of the range of field conditions that CCRs 

are exposed to during disposal and reuse.203 For example, CCRs are frequently placed in contact 

with acid mine drainage and co-disposed with acidic coal refuse (pyrites). Both of these 

common disposal scenarios expose CCRs to a wide range of pH conditions that can accelerate 

leaching of toxic metals. Recognizing the importance of having a robust, mechanistic 

environmental assessment methodology, EPA conducted a review of available methods, sought 

Science Advisory Board input, and ultimately selected the tiered assessment approach of the 

Leaching Environmental Assessment Framework (LEAF).204

 EPA relies on LEAF for the latest testing of a wide range of CCRs generated by plants 

employing air pollution controls. This is not the first time, however, that EPA opted not to use 

the limited TCLP for a leach test evaluating waste material at the pH levels that the waste is 

actually likely to encounter when disposed.205 Using the LEAF test, EPA tested 73 different 

                                                                                                                                                                                   06/008) (Feb. 2006), available athttp://www.epa.gov/ORD/NRMRL/pubs/600r06008/600r06008.pdf; and EPA, 

Characterization of Coal Combustion Residuals from Electric Utilities Using Wet Scrubbers for Multi-Pollutant 

Control (EPA–600/ R–08/077) (July 2008), available at http://www.epa.gov/nrmrl/pubs/600r08077/600r08077.pdf. 

199 75 Fed. Reg. at 35,139–42. 200 Thorneloe, , at 7351. 201 Letter from EPA, Science Advisory Board, to Carol Browner, Administrator, EPA, Re: “Waste Leachability: The 

Need for Review of Current Agency Procedures” (Feb. 26, 1999) (emphasis in original), available at

www.yosemite.epa.gov/sab/sabproduct.nsf/.../$File/eecm9902.pdf. 202 Nat’l Research Council, Nat’l Academies, Managing Coal Combustion Residues in Mines (2006), available at 

http://books.nap.edu/catalog.php?record_id=11592#toc at 123-129. 

203 See EPA, Characterization of Coal Combustion Residues from Electric Utilities Using Wet Scrubbers 

for Multi-Pollutant Control (EPA/600/R-08/077) (July 2008), available at

http://www.epa.gov/nrmrl/pubs/600r08077/600r08077.htm, and EPA, Characterization of MercuryEnriched Coal Combustion Residues from Electric Utilities Using Enhanced Sorbents for Mercury Control

(EPA-600/R-06/008) (Feb. 2006), available at http://www.epa.gov/nrmrl/pubs/600r06008/600r06008.pdf 204 Thorneloe, Evaluating the Fate of Metals, at 7351. 205 See 75 Fed. Reg. 35,139, fn. 11, referencing EPA’s use of multi-pH leach testing in support of listing a mercurybearing sludge from VCM–A production, 65 Fed. Reg. 67,100 and and EPA/600/R–02/019, September 2001, 

Stabilization and Testing of Mercury Containing Wastes: Borden Catalyst. 
66 

CCRs from 31 coal-fired boilers.206 The results of the tests were dramatically different from the 

TCLP tests of similar CCRs. While TCLP test results rarely exceeded the toxicity characteristic 

for metals (the level at which a waste is deemed a “hazardous” waste207), the LEAF test 

confirmed that CCRs can leach metals, such as arsenic, barium, chromium and selenium, at 

levels that far exceed federal thresholds established for hazardous waste. Specifically, EPA 

found, at the highest leach level for particular CCRs: 

 Arsenic, a potent carcinogen, leached from fly ash at a concentration 1,800 times the 

federal safe drinking water standard, more than 3 times the threshold established for 

hazardous waste and over 76 times the level of previous leach tests (TCLP);208

 Antimony, which damages the heart, lung and stomach, also leached from fly ash at a 

concentration 1,800 times the federal safe drinking water standard and over 900 times the 

level of previous TCLP tests;209

 Chromium, which can cause cancer and stomach ailments,leached from fly ash at a level 

73 times the federal safe drinking water standard, over 1.5 times the threshold for 

hazardous waste, and 124 times the level of previous TCLP tests;210

 Selenium, which causes circulatory problems in humans and is a bioaccumulative toxin 

extremely deadly to fish, leached from fly ash at nearly 600 times the federal drinking 

water standard, 29 times the threshold for hazardous waste and nearly 66 times the level 

of previous TCLP tests.211

 Selenium also leached from FGD gypsum at 320 times the federal drinking water 

standard, 16 times the threshold for hazardous waste, and nearly xx time the level of 

previous TCLP test.212

Previous leach data in the EPA’s 1999 Report to Congress213 and test data produced by 

the utility industry214 have never revealed such high concentrations of pollutants because they 

used single point leach tests that could not mimic the conditions under which CCRs are actually 

                                                       

206 75 Fed. Reg. 35,139. 207 See 40 C.F.R. § 261.11. 208 75 Fed. Reg. 35141. 

209 Id. 210 Id. 211 Id. 212 Id. 213 See, for example, U.S. EPA, Report to Congress on Wastes from the Combustion of Coal by Electric Utility 

Power Plants (EPA530-SW-88-002), February 1988 and U.S. EPA, Report to Congress on Wastes from the 

Combustion of Fossils Fuels (EPA530-R-99-010), March 1999, available at 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/regs.htm. 214 See, for example, Electric Power Research Institute, Sustainable Management of Coal Combustion Products, 

Recent EPRI Research, October 16, 2009, at page 8, submitted to Office of Management and Budget on October 16, 

2009, available at http://www.whitehouse.gov/omb/2050_meeting_101609/. 
67 

disposed.215 It is important to note that the above data and the additional data found in the 

preamble of the proposed rule are not preliminary data. The data have been peer reviewed, and 

results were published in Environmental Science and Technology on August 30, 2010.216

 Furthermore, EPA indicates in the preamble that the very high leaching values found by 

using the LEAF test may still not accurately characterize the full leaching potential of the waste. 

EPA admits there is a potential underestimation by the LEAF test because actual field conditions 

for CCR disposal can exhibit a pH below the lowest bound of the test’s pH range.217

2. EPA’s “Human and Ecological Risk Assessment of Coal Combustion 

Wastes” Demonstrates Extremely High Risk to Human Health and 

the Environment from Mismanagement of CCRs. 

As EPA notes in the preamble, the Agency’s Health and Ecological Risk Assessment of 

Coal Combustion Wastes (April 2010) provides “further confirmation of the high risks presented 

in the mismanagement of CCRs disposed in landfills and surface impoundments.”218 The risks 

found in this assessment are, in fact, extremely high when compared with EPA’s target level of 

protection of human health and the environment. For this rule and for other EPA listing 

determinations, EPA defined the target level to be an incremental lifetime cancer risk of no 

greater than one in 100,000 (10-5) for carcinogenic chemicals and a hazard quotient of 1.0 for 

noncarcinogenic chemicals.219 Yet the CCR risk assessment found that at 90th percentile “the 

management of CCRs in unlined or clay-lined waste management units (WMUs) result in risks 

greater than the risk criteria of 10-5for excess cancer risk to humans or an HQ greater than 1 for 

noncancer effects to both human and ecological receptors which are the criteria generally used in 

EPA’s listing determination procedure.”220

More specifically, as EPA indicates in its preamble: 

 90th percentile risk estimates, for arsenic from unlined surface impoundments are as high 

as 1 in 50 (2000 times EPA’s target goal) and non-cancer effects estimates for cobalt 

were as high as 500 (500 times the target hazard quotient);221

 90th percentile risk estimates, for arsenic, antimony and molybdenum that leak from 

unlined landfills, reveal individual lifetime cancer risk is as high as 1 in 2000, 50 times 

EPA’s target goal.222

                                                       

215 For a more detailed discussion of the EPA’s LEAF test results and comparison to data from TCLP testing, see 

Attachment 7, Evans, Lisa. Failing the Test: The Unintended Consequences of Controlling Hazardous Air Pollutants 

from Coal-Fired Power Plants, May 2010. 216 Thorneloe, Susan A., David S. Kosson, Florence Sanchez, Andrew Garrabrants, Gregory Helms. Evaluating the 

Fate of Metals in Air Pollution Control Residues from Coal-Fired Power Plants, Environmental Science and 

Technology, Vol . 44, No. 19, August 31, 2010 at 7351. 

217 75 Fed. Reg. 35140. 218 75 Fed. Reg. at 35,144. 

219 Id. EPA uses these same target levels in other EPA listing decisions. See, e.g., Final Rule for Nonwastewaters 

from Productions of Dyes, Pigments, and Food Drug and Cosmetic Colorants (70 Fed. Reg. 9144), available at

http://www.epa.gov/wastes/law-regs/state/revision/frs/fr206.pdf) 220 Id. 221 75 Fed. Reg. at 35,145. 
68 

Additional risks above EPA’s benchmark for both 90th and 50th percentile estimates for lined and 

unlined landfills and surface impoundments are summarized in the preamble and set forth in the 

risk assessment. These risks are from a long list of chemicals harmful to human health and the 

environment, including, selenium, boron and lead (in addition to the metals mentioned above). 

 Clearly the risks found by EPA far exceed target levels for listing, as EPA admits. 

Congress mandates that EPA consider these risks to human health and the environment in 

deciding whether CCR warrants regulation under subtitle C.223 Consequently the agency’s 

obligation to regulate CCRs under subtitle C is clear. In this section of our comments, however, 

we describe numerous ways in which EPA’s 2010 Risk Assessment significantly underestimated 

the risk posed by coal ash to human health and the environment. Despite the high risks 

acknowledged in EPA’s risk assessment, the assessment nevertheless failed in several critical 

ways to assess fully and accurately the scope and scale of the risks posed by coal ash. 

a. EPA Significantly Underestimated the Cancer Risks to 

Human Health From Arsenic. 

EPA significantly underestimated the cancer risks to human health from arsenic by 

relying on an out-dated cancer slope factor. The cancer risks associated with arsenic ingestion 

emerged as a principal factor in the risk assessment’s conclusion that there are “. . . potentially 

significant risks to human health from CCR disposal in landfills and surface impoundments.”224

The two key exposure pathways considered in the human risk assessment were (1) ingestion of 

groundwater contaminated by migration of a hazardous CCR constituent, and (2) consumption of 

fish caught by recreational fisherman from surface waters impacted by contaminants migrating 

from coal ash disposal sites. A major finding of the draft document was that “[a]rsenic in certain 

types of WMUs [waste management units] managing certain types of CCR may present lifetime 

cancer risks above EPA’s range of concern to highly exposed groundwater users.”225 Similarly, 

the risk assessment concluded that lifetime cancer risks exceeding EPA’s range of concern were 

associated with ingestion of fish impacted by arsenic arising from surface impoundments. 

However, the risk assessment document reached its conclusions regarding the arsenicassociated CCR risks by relying on a cancer slope factor (CSF) for arsenic ingestion of 1.5 

(mg/kg-d)-1 obtained from EPA’s IRIS database. That slope factor, which was first published in 

IRIS in 1988, is based on a study of the prevalence of skin cancer in a population ingesting 

arsenic in drinking water. Its use has long been acknowledged by multiple offices of EPA and 

the broad scientific community to yield an underestimate of the actual cancer risk posed by 

inorganic arsenic ingestion, which in addition to skin cancer is recognized as a cause of cancer of 

the lung and bladder in humans. For example, in 2000 - 2001, EPA’s Office of Water used 

independent estimates of arsenic induced lung and bladder cancer, rather estimates derived from 

                                                                                                                                                                                   222 Id. 223 42 U.S.C. §§ 6942(n)(4), 6921(b)(3)(C). 224 2010 Risk Assessment, at 4-40. 225 Id. at ES-10 (stating that EPA’s stated range of concern for excess cancer risk was 10-6 to 10-4 (page ES-2)). 
69 

the IRIS CSF, as a basis for lowering the maximum contaminant level for arsenic in drinking 

water from 50 μg/L to 10 μg/L.226

Although the 2010 risk assessment included a nonspecific acknowledgement that “some 

benchmarks in IRIS are quite dated,”227 the narrative contained no explicit indication that use of 

the IRIS CSF for arsenic would substantially underestimate the cancer risk. By contrast, the 

“Regulatory Impact Analysis For EPA’s Proposed RCRA Regulation Of Coal Combustion 

Residues (CCR) Generated by the Electric Utility Industry” (hereafter “RIA”) issued by the EPA 

Office of Resource Conservation and Recovery on April 30, 2010 did explicitly state that “the 

skin cancer based risk assessments no longer represent the current state of the science for health 

risk assessment for arsenic.”228 Consequently, the RIA contained an impact analysis based in part 

on the findings of the National Research Council report “Arsenic in Drinking Water: 2001 

Update,” which yielded a combined CSF for lung and bladder cancer of 26 (mg/kg-d)-1.

229 

Further support for use of a revised CSF for inorganic arsenic ingestion arises from another 

recent document produced by the EPA National Center for Environmental Assessment entitled, 

“Toxicological Review of Inorganic Arsenic In Support of Summary Information on the 

Integrated Risk Information System (IRIS)”.230 Although still under review by the EPA SAB for 

technical accuracy and science policy implications, this externally peer-reviewed final draft 

derived an oral CSF of 25.7 (mg/kg-d)-1. 

Medical toxicologist Dr. Michael Kosnett231 along with three scientists, Allan H. Smith, 

MD. PhD,232 Kenneth P. Cantor,233 and Marie Vahter,234who together served on the 

Subcommittee on Arsenic in Drinking Water of the Natural Research Council (for either or both 

of the 1999 and 2001 reports) draw the following conclusion from EPA’s use of the cancer slope 

factor of 1.5 mk/kg/d: 

Because estimates of lifetime cancer risk increase linearly with the CSF, a direct 

consequence of the draft CCR risk assessment’s utilization of a CSF of 1.5 

(mg/kg-d)-1 instead of 26 (mg/kg-d)-1 is an underestimation of the cancer risk 

associated with each CCR disposal scenario by a factor of 17.3 (i.e. 26 ÷ 1.5). 

Accordingly, a revision of the risk assessment utilizing the CSF of 26 derived in 

Appendix K4 of the RIA is indicated at this time. In addition to reinforcing EPA’s 

current draft conclusions regarding the health risk of CCR disposal, use of the 

alternative CSF may elevate the risk associated with some additional disposal 

scenarios, such as ingestion of fish impacted by certain CCR landfills, into EPA’s 

stated range of concern.235

                                                       

226 Arsenic in Drinking Water: Final Rule, EPA-815-Z-01, 66 Fed. Reg. 6976 (Jan. 22, 2001). 227 2010 Risk Assessment, at 4–56. 228 2010 RIA, at 256, & Appendix K4. 

229 See 2010 RIA, at 120, & Appendix K4, at 263–66. 230 National Center for Environmental Assessment, EPA, Toxicological Review of Inorganic Arsenic In Support of 

Summary Information on the Integrated Risk Information System (IRIS) (EPA/635/R-10/001) (Feb. 2010). 231 See http://yosemite.epa.gov/sab/SABPEOPLE.NSF/WebPeople/KosnettMichael?OpenDocument. 232 Professor of Epidemiology, School of Public Health, University of California, Berkeley. 233 Epidemiologist, Division of Cancer Epidemiology and Genetics, National Cancer Institute, Bethesda, MD. 234 Professor, Institute of Environmental Medicine, Karolinska Institute, Stockholm, Sweden. 235 See Appendix B, (emphasis added). 
70 

A copy of this letter is appended to these comments as Appendix B.236

b. EPA Underestimated the Risks to Human Health from Lead 

in its 2010 Risk Assessment. 

EPA also underestimated the risks to human health posed by lead. In a letter attached to 

these comments from Phillip Goodrum, Ph.D of Environmental Resource Management (ERM), 

Dr. Goodrum points out that EPA made a fundamental error in its calculation of risk from 

lead.237 Dr. Goodrum writes: 

This analysis demonstrates that the use of an MCL of 15 μg/L is not sufficiently 

protective. A reduction by a factor of 2 or 3 to 10 or 5 μg/L would provide a 

more appropriate action level for drinking water concentrations to assess risks 

associated with the CCW scenarios. 

The implication of EPA’s underestimation of the reference concentration for lead is a probable 

underestimation of the Hazard Quotient by 2-3 times. Given the high incidence of lead 

contamination in groundwater at coal ash sites and the serious neurological damage that can 

result from lead exposure, EPA should reassess the risk posed by lead in its risk assessment. It is 

essential for EPA’s assessment to accurately reflect the risk to children and adults potentially 

exposed to ash and contaminated water. 

c. EPA Underestimated the Risk to Human Health because it 

did not Fully Consider the Impact from Multiple Pathways. 

By failing to consider impacts from multiple pathways of exposure, EPA further 

underestimated risks. For certain coal ash toxicants, threats to human health are multiplied due 

to the ability of the toxicant to reach and endanger humans via more than one exposure 

pathway.238 These multiple pathways can also result in different forms of harm being inflicted 

on the body. One salient example is that of arsenic. Arsenic readily leaches into water, 

potentially allowing arsenic to contaminate groundwater and, eventually, drinking water 

supplies. Contaminated drinking water is a primary route of arsenic exposure. Chronic exposure 

to arsenic in drinking water can cause several types of cancer, including skin cancer, bladder 

cancer, lung cancer, and kidney cancer. Recent studies also have linked arsenic ingestion to 

cardiovascular disease and diabetes mellitus. Ingestion of lower levels of arsenic can cause 

nausea and vomiting, decreased production of red and white blood cells, and cardiovascular 

                                                       

236 See also Letter from Mary A. Fox, PhD, MPH, Assistant Professor in the Department of Health Policy and 

Management, Johns Hopkins University Bloomberg School of Public Health (submitted to the docket). Dr. Fox 

wrote “Cancer risks from arsenic exposure have also been underestimated. To date cancer risk assessments of 

arsenic exposure have been based on studies of skin cancer. Epidemiological evidence on arsenic ingestion now 

shows greater risk of several internal organ cancers (e.g., bladder and lung) so risk estimates using the skin cancer 

data will underestimate total cancer risks from arsenic ingestion.” Id. 237 See Appendix C. 238 Material in this section was drawn from the Agency for Toxic Substances and Disease Registry (ATSDR), U.S. 

Department of Health & Human Services, ToxFAQs, at http://www.atsdr.cdc.gov/tfacts2html, and Steven G. 

Gilbert, PhD DABT, A Small Dose of Toxicology, CRC Press, 2004. 
71 

effects including abnormal heart rhythm, damage to blood vessels, and damage to the peripheral 

nervous system. Arsenic can also enter the body via other pathways. Inhalation of arsenic—for 

example, from coal ash fugitive dust—also poses threats to health; it can cause or increase the 

danger of lung cancer. Arsenic can also be absorbed through the skin, as may occur in cases 

such as exposure to coal ash used in structural fill, or inadequate cleanup after a coal ash spill. 

Arsenic absorbed through the skin increases the risk of skin cancer. Thus, the pathway of 

exposure to arsenic is significant, and the choice of pathway is significant in determining the 

nature of the health threat. 

The increased danger due to multiple pathways to exposure is a factor in other toxicants 

besides arsenic. 

 Lead exposure can result from ingestion by mouth or by inhalation of lead dust. Children 

are particularly susceptible to harm from lead; such harm may include damage to the 

brain and nervous system, behavior and learning problems such as hyperactivity, slowed 

growth, hearing problems and headaches. High levels of lead in children can result in 

swelling of the brain, kidney disease, and possible death. Adults are also susceptible to 

harm from lead, including reproductive problems in both men and women, high blood 

pressure and hypertension, nerve disorders, memory and concentration problems, and 

muscle and joint pain. It is now well accepted that there is no safe level of lead exposure, 

particularly for children, so the impact of multiple pathways is a particular concern. 

 Boron when inhaled can cause irritation of the eyes, nose and throat; when ingested, it 

can damage the intestines, liver, kidneys, brain, and testes, and exposure to large amounts 

of boron over short periods of time can lead to death. 

 Chromium VI when ingested via contaminated water can cause stomach and small 

intestine ulcers, and frequent ingestion can cause anemia and stomach cancer. Contact 

with the skin by some compounds of chromium VI can result in skin ulcers. And when 

inhaled in large amounts, chromium VI an cause lung cancer, breathing problems such as 

asthma and wheezing, and nose ulcers. 

 Thallium exposure may result from ingestion by mouth, or may occur from inhalation of 

thallium dust. Chronic inhalation of thallium causes nervous system effects. Ingesting 

large amounts of thallium over a short time leads to vomiting, diarrhea, temporary hair 

loss, and adverse effects on the nervous system, lungs, heart, liver and kidneys. 

The application of this principle varies from toxic to toxic. There are cases where a 

toxicant is dangerous when exposure occurs via one pathway, but less so via another. For 

example, cadmium if ingested is not likely to cause harm, as oral ingestion results in low levels 

of absorption. The lungs, however, readily absorb cadmium, so inhalation exposure results in 

much higher levels of absorption. This makes exposure to coal ash dust a risk factor for kidney 

disease, obstructive lung diseases such as emphysema, and possibly lung cancer. Cadmium also 

affects calcium metabolism and can result in bone mineral loss and associated bone pain, 

osteoporosis and bone fractures. 
72 

d. EPA Underestimated the Synergistic Risks to Human 

Health. 

 The 2010 Risk Assessment fails to account for the cumulative impact of simultaneous 

exposure to the multiple hazardous constituents of CCRs. Coal ash toxicants can be more 

hamrful in combination than they are individually. However, while the properties of coal ash 

toxicants are understood as they function individually, little is known about what happens when 

these toxic substances are mixed — as routinely happens in coal ash. Concurrent exposure to 

multiple contaminants may intensify existing effects of individual contaminants, or may give rise 

to interactions and synergies that create new effects. For example, aluminum, manganese and 

lead all have adverse effects on the central nervous system; barium, cadmium and mercury all 

have adverse effects on the kidney. Where several coal ash contaminants share a common 

mechanism of toxicity or affect the same body organ or system, exposure to several 

contaminants concurrently produces a greater chance of increased risk to health. Yet the EPA has 

not taken into account in its 2010 Risk Assessment the possibility of synergistic interactions, 

despite the common occurrence of multiple contaminants in combination in coal ash.239 

Assessing exposure to CCR mixtures requires an understanding of the toxic effects of CCR 

constituents, briefly summarized in Table 29, below. Additional support for assessing the 

cumulative impact of coal ash contaminants is found in the letter from Mary A. Fox, PhD, MPH, 

Assistant Professor in the Department of Health Policy and Management at the Johns Hopkins 

University Bloomberg School of Public Health, attached to these comments as Appendix D. 

                                                       

239 Foran, J.A. “Comments on the Draft U.S. EPA Human and Ecological Risk Assessment of Coal Combustion 

Wastes.” February 5, 2008. Earthjustice. 2007. Attached to this document as Attachment E. 
73 

Table 30. Health effects of coal combustion residual (CCR) constituents 

CCW Constituent Health Effect(s) of Concern

(Exposure by Ingestion) Information Source

Aluminum Neurological ATSDR 2007 

Antimony Longevity, changes in blood 

glucose and cholesterol 

EPA IRIS 

Arsenic Cancer, hyperpigmentation, 

keratosis of skin 

EPA IRIS 

Barium Nephropathy EPA IRIS 

Beryllium Gastrointestinal EPA IRIS 

Boron Decreased fetal weight EPA IRIS 

Cadmium Significant proteinuria EPA IRIS 

Chromium (III) No effects observed EPA IRIS 

Chromium (VI) No effects observed EPA IRIS 

Cobalt Blood ATSDR 2007 

Copper Gastrointestinal ATSDR 2007 

Fluorine Cosmetic fluorosis of teeth EPA IRIS 

Iron NA NA 

Lead Neurological CDC 2005 

Manganese Neurological EPA IRIS 

Mercury Kidney ATSDR 2007 

Molybdenum Increased uric acid levels EPA IRIS 

Nickel Decreased body and organ weight EPA IRIS 

Potassium NA NA 

Selenium Selenosis – hair and nail loss EPA IRIS 

Silver Argyria - benign skin 

pigmentation 

EPA IRIS 

Strontium Bone growth and mineralization EPA IRIS 

Thallium Change in blood chemistry EPA IRIS 

Vanadium Decreased hair cystine EPA IRIS 

Zinc Decreased red blood cell copper 

and enzyme activity 

EPA IRIS 

 The simultaneous occurrence of multiple contaminants from coal ash contamination is 

documented at over 100 damage cases. 

e. EPA Underestimated the Risks Posed by Fugitive Dust. 

 The 2010 Risk Assessment fails to account fully for risks posed by fugitive dust associated 

with CCR disposal. Several reviewers, including one peer reviewer, criticized EPA’s draft 2009 

Health and Ecological Risk Assessment for Coal Combustion Wastes due to the absence of any 

assessment of risk from fugitive dust, which, the scientist stated, can be “a significant 

problem.”240 To correct this oversight, EPA published a screening assessment of the risks posed 

by coal combustion waste landfills.241 The screening assessment acknowledges significant 

potential harm from fugitive dust. According to EPA, when coal ash blows from dry storage 

sites, particulate matter can readily exceed the national ambient air quality standards (NAAQS) 

                                                       

240 Industrial Economics, Incorporated. Peer review of “Draft Human and Ecological Risk Assessment for Coal 

Combustion Wastes” (Sept. 25, 2008). 

241 EPA, Inhalation of Fugitive Dust: A Screening Assessment of the Risks Posed by Coal Combustion Waste 

Landfills, [draft], (Sept. 2009) (Docket ID No. EPA-HQ-RCRA-2009-0640-0142). 
74 

for levels of particulate matter in the air. EPA concluded “there is not only a possibility, but a 

strong likelihood that dry-handling [of coal ash] would lead to the NAAQS being exceeded 

absent fugitive dust controls.”242 To compound the problem, high background levels of 

particulate matter may add to the potential for fugitive dust from coal ash to lead to significant 

human health risks. 

 Further, EPA found that protective daily practices to control dust, such as moistening dry 

coal ash or covering it, minimizes the dangers to health. However, dust controls often are not 

applied at CCR disposal sites or are only applied only weekly or monthly. EPA found such 

infrequent practices to “have the potential to lead to significant risks,” adding that: 

 “[e]ven at the median risk, yearly management leads to a PM10 concentration 

almost an order of magnitude above the NAAQS....[It is even] “uncertain 

whether weekly controls would have the potential to cause NAAQS 

exceedences...only daily controls can definitively be said not to cause excess 

levels of particulates in isolation.”243

Notwithstanding this acknowledged risk, EPA notes that many states do not require daily cover 

to control fugitive dust at coal ash landfills and most states do not require final caps on coal ash 

ponds to control dust.244

 While the screening assessment represents an important step toward evaluation of fugitive 

dust risks, it falls far short of a qualitative risk assessment. Its numerous shortcomings 

understate the risk posed by airborne CCR. Specifically, the methodology employed is overly 

simplistic and not sufficiently conservative. For example, it is unreasonable to analyze the 

percentiles of landfill sizes and distances to receptors without acknowledging the extreme 

variability of emission factors for wind erosion, drop operations, and entrained road dust from 

equipment travel on unpaved landfill roads and their considerable contribution to total emissions 

of airborne particulates from a CCW landfill. A detailed evaluation of the Screening Assessment 

is attached at Appendix G. 

f. EPA’s 2010 Risk Assessment is Based on Erroneous 

Assumptions. 

 The 2010 Risk Assessment is further flawed because it relies on numerous erroneous 

assumptions regarding the design of CCR disposal units. The following deficiencies related to 

the model used by EPA in its 2010 risk assessment caused EPA to underestimate the impacts to 

human health and the environment. These deficiencies are discussed in detail in a report by GeoHydro, Inc. attached to these comments as Appendix J. The report’s findings are summarized 

below. 

1. The conceptual model of a CCR landfill in the risk assessment differs 

                                                       

242 Id. 243 Id. 244 Id. See also our discussion of state regulatory controls, infra. 
75 

significantly from most existing CCR landfills, and because of these differences, 

the model underestimates the magnitude and concentration of migration away 

from a typical landfill. 

2. The conceptual model of a CCR impoundment in the risk assessment differs 

significantly from most existing CCR impoundments, and because of these 

differences, the model underestimates the magnitude and concentration of 

migration away from a typical impoundment. 

3. EPA used a groundwater flow model and a geochemical attenuation model that 

are structurally and numerically incapable of simulating conditions that are known 

to exist at and downgradient of many CCR disposal units. Those limitations were 

such that migration, and therefore exposure and risk, from simulated sites would 

inherently be under-computed. 

4. Contaminated groundwater can flow further than one mile from the CCR disposal 

unit. The large volumes of disposed wastes, high concentrations of contaminants 

in CCR-derived leachate, and disposal setting of highly conductive materials 

virtually assures some plumes extend more than one-mile downgradient. The 

hydraulic properties of valley-floor alluvial sediments under typical gradients 

easily produce flow velocities of 1 ft/day. Over the 30 plus years that CCRs have 

routinely been collected and stored on generating facility properties, many plumes 

may have traveled over two miles from their origin. 

g. A Calculation of Risk Based on the Erroneous Assumption 

that Leachate from CCR Landfills and Surface 

Impoundments will Always Flow toward Large Bodies of 

Water, and thereby Avoid Human Receptors, Understates 

Potential Harm. 

 The 2010 Risk Assessment calculated risks on the erroneous assumption that leachate from 

CCR landfills and surface impoundments will always flow toward large bodies of water, 

diminishing risk by way of dilution. EPA and industry commenters have posited that the 

direction of groundwater flow is largely, if not fully, controlled by the topography between a 

waste disposal facility and nearby surface water bodies. Always assuming a direction of flow 

towards the water body greatly limits the number of people potentially exposed to contaminated 

groundwater. However, human receptors located in any direction from CCR landfills can 

potentially be exposed to coal ash contaminants depending on the site-specific flow system. For 

that reason, a meaningful assessment of risk must be based upon site-specific evaluations, not 

generic assumptions. 

 The reasons why contaminated groundwater from CCR disposal units may not flow 

directly toward an adjacent waterbody include: 

1. CCR landfills and ponds adjacent to rivers are located in alluvial valleys. 

Alluvial valleys are composed of highly variable geologic materials 

ranging from coarse sand and gravel channel deposits to fine-grained silt 
76 

and clay overbank and channel-fill materials. In such valleys, the channels 

tend to align with the axis of the valley, thus promoting flow parallel to 

the edge of a major river, not toward it. This downstream component of 

flow biases the migration path of contaminants downstream of the facility, 

along the alluvial valley, potentially impacting human receptors. In 

addition, groundwater flow is also affected by river stages (high and low 

water). 

2. Anthropogenic activities such as pumping centers related to industrial, 

residential or agricultural water supply systems are capable of modifying 

the direction of groundwater flow over wide areas. For example, 

Depending on the location of any well fields that supply the public system, 

the system itself may have the potential to draw CCR contaminants into 

the wells, exposing the served population through the supposedly safe 

water system. 

3. Mounding of groundwater and/or leachate under landfills, utility cooling 

water ponds and surface impoundments often create radial flow paths from 

the disposal facility that are capable of driving contaminated groundwater 

in directions contrary to topographic, down-to-the river flow. 

A more detailed discussion of the factors affecting the flow direction of releases from CCR 

disposal units, along with specific examples of contamination caused by units located near large 

bodies of water is found in Attachment I. 

h. EPA’s 2010 Risk Assessment Underestimates Risk from 

Retired CCR Disposal Units. 

 In its 2010 risk assessment, EPA does not assess the risks posed by retired CCR disposal 

units. To its credit, EPA acknowledges the long-term leaching problem posed by old CCR 

disposal units. As EPA states in its assessment, “[a]rrival times of the peak concentrations [of 

CCR contaminants] at receptor wells are much longer for landfills (hundreds to thousands of 

years) than for surface impoundments (most less than 100 years).”245 Thus, EPA must account 

in its risk assessment for the reality that contaminant plumes, and associated human exposures, 

will likely continue to increase for decades to come due to pollution from sources that exist 

today. The failure to consider the combination of growing plumes, more concentrated plumes, 

and future increases in population density in the vicinity of on-site and off-site CCR-disposal 

facilities renders the estimate of human exposures presented in the risk analysis incomplete and 

misleadingly low. If EPA had assessed the continuing and increasing loading of contaminants 

from hundreds of retired ponds and landfills, the risk estimates surely would have increased. 

                                                       

245 EPA 2010 Risk Assessment at 4-11. 
77 

i. EPA’s 2010 Risk Assessment Fails to Fully Account for 

Surface Water Pollution from Unlined and Poorly Managed 

Surface Impoundments and Landfills. 

The 2010 Risk Assessment does not account fully for surface water discharges from 

unlined and poorly managed surface impoundments and landfills. This omission is significant 

given that the electric utility industry is the second largest discharger of toxic and 

nonconventional pollutants nationwide.246 In 2009 alone, the electric utility industry reported 

discharging nearly two million pounds of metals to surface waters from coal combustion waste 

surface impoundments and landfills and power plants.247 In addition to direct discharges to 

surface waters, the electric utility industry is poisoning waterways through slow motion leaks of 

toxic pollution from unlined and poorly managed coal combustion waste impoundments and 

landfills.248 

Our analysis of the limited data available through the EPA Enforcement and Compliance 

History Online (ECHO) database indicates that power plants routinely discharge toxic pollutants 

such as selenium from coal combustion waste impoundments, landfills, and other handling 

systems at levels that exceed water quality standards.249 Data compiled from permit applications, 

monitoring reports, and sampling conducted for the USEPA identified at least thirty sites in 

which routine long-term discharges of selenium exceed 20 micrograms, and sometimes 100 

micrograms.250 We have already learned the hard way that releasing selenium into rivers and 

lakes can decimate fish populations and make the surviving species unsafe to eat.251 For 

example, EPA’s 2007 Coal Combustion Waste Damage Case Assessments includes Belews 

Lake, North Carolina, where the discharge of selenium from a power plant wiped out 16 of 20 

fish species in the 1980s.252

The limited monitoring data available show that the electric utility industry also release other 

pollutants at levels that exceed drinking water standards or limits meant to protect recreational 

uses like swimming and fishing.253 The EPA has established a maximum contaminant level of 

                                                       

246 EPA, Interim Detailed Study Report for the Steam Electric Power Generating Point Source Category (821-R-06-

015) 1-1 (Nov. 2006). 

247 See EPA, Toxics Release Inventory Explorer, available at http://www.epa.gov/triexplorer/. Actual discharges of 

these pollutants are likely significantly higher, as federal rules do not presently include any effluent limits on metals 

in coal combustion waste wastewater and states fail to meet their independent obligation to require facilities to 

monitor or report these discharges. See 40 C.F.R. pt 423. 248 See 2007 EPA Damage Case Assessment; Out of Control; and In Harm’s Way (documenting numerous coal 

combustion waste sites that have contaminated ground and surface waters via direct discharges and leaks in disposal 

units). 

249 See Attachment 18 (selenium chart). Selenium is a toxic pollutant found in coal combustion waste that is deadly 

to aquatic life in small amounts, and can damage the liver and other soft tissues in humans. EPA has determined 

that chronic exposure to selenium at level above 5 micrograms per liter is harmful to freshwater fish and other 

aquatic life. The acute, or short-term safe level for freshwater aquatic life is no more than 20 micrograms per liter. 250 See Attachment 18 (selenium chart). 251 2007 EPA Damage Case Assessment, 25. 252 Id. 253 See Attachment 17 (arsenic chart). 
78 

10 micrograms per liter for arsenic in drinking water.254 States like Tennessee use the same 

threshold in waters used for recreational purposes, recognizing that arsenic becomes increasingly 

concentrated as it moves up the food chain, which could potentially make some fish unsafe to 

eat.255 EPA data from the ECHO database identify at least 20 power plants where arsenic levels 

in wastewater discharges routinely exceed 20 micrograms per liter, or at least twice the 

recommended federal standard for drinking water or recreational waters.256

 

 Because so little monitoring data exists, our analysis almost certainly understates the 

danger posed to public health and the environment from discharges of toxic pollution from coal 

combustion waste surface impoundments and landfills. In addition, our analysis examines 

discharges of just two of the twenty-seven metals EPA has identified in coal combustion waste 

wastewater.257 The electric utility industry discharges enormous quantities of toxic pollution that 

poses a significant risk to public health and the environment into our waterways each year. 

i. EPA Must Consider Discharges to Surface Water in the 

Risk Assessment. 

While EPA did evaluate risks posed by groundwater transport to surface waters, EPA 

claims that the risks from direct discharges to surface waters is outside the scope of the risk 

assessment because these discharges are regulated under the Clean Water Act.258 However, 

RCRA does not preclude EPA from considering potential danger and damage from coal 

combustion waste disposal that is caused by Clean Water Act discharges.259 In fact, the statute 

directs EPA to evaluate all “potential danger” from disposal and evaluate damage to human 

health and the environment from leachate.260 Furthermore, the RCRA open dump regulations 

demonstrate that Clean Water Act discharges are not per se excluded from the scope of 

RCRA.261 Finally, EPA itself includes sites that have caused damage to the environment from 

direct discharge to surface waters in its 2007 report documenting coal combustion waste damage 

cases.262

 First, the section 8002(n) criteria direct EPA to evaluate the (1) “potential danger, if any, 

to human health and the environment from the disposal and reuse of [coal combustion waste]” 

and (2) “documented cases in which danger to human health or the environment from surface 

runoff or leachate has been proved . . . .”263 The criteria do not exclude potential danger from 

disposal of coal combustion waste that is the result of a direct discharge to surface waters. The 

disposal of these wastes in surface impoundments and landfills creates discharges to surface 

waters. In other words, direct discharges are directly related to, and a component of, the disposal 

                                                       

254 40 C.F.R. § 141.62(b)(16). 255 Tenn. Comp. R. & Regs. 1200-4-3.03(4). 256 See Attachment 17 (arsenic chart). 257 EPA, Steam Electric Power Generating Point Source Category: 2007/2008 Detailed Study Report 2-7 tbl. 2-3 

(Aug. 2008). 

258 EPA, 2010 Risk Assessment, at 4-39. 

259 See 42 U.S.C. § 6982(n). 260 42 U.S.C. § 6982(n)(3), -(4). 261 See 40 C.F.R. § 257.3-3(a) (stating that facilities that discharge in violation of the Clean Water Act are open 

dumps). 

262 EPA, Coal Combustion Waste Damage Assessments, at 12. 263 Id.
79 

of coal combustion waste. As RCRA directs EPA to evaluate all potential danger from these 

wastes, it must assess the danger posed to public health and the environment by direct discharges 

to surface waters. 

EPA has recognized this obligation implicitly in the past. In its 2007 report, Coal 

Combustion Waste Damage Assessments, EPA specifically stated that proven damage cases are 

not limited “to those sites with a primary MCL exceedance(s) in ground water distant from the 

waste management unit.”264 Thus, EPA noted that “[a] case still may be considered proven 

under the scientific investigation test if a scientific study demonstrates there is documented 

evidence of another type of damage to human health or the environment (e.g., ecological 

damage).”265

 In keeping with this observation, EPA has identified direct discharge to surface waters as 

the basis for consideration as a proven damage case. For example, EPA identified the Georgia 

Power Company’s Plant Bowen coal combustion waste impoundment as a proven damage case 

based on “unpermitted discharge of water containing ash slurry into the Euharlee Creek resulting 

in a temporary degradation of public waters.”266 Belews Lake in North Carolina is listed as a 

proven damage case based on “[s]cientific evidence of extensive impacts on fish populations due 

to direct discharge to a surface water body.”267 Additionally, the Basin Electric Power 

Cooperative W.J. Neal Station Surface Impoundment in North Dakota is an EPA damage case 

based on a site inspection that “found documentation of releases to ground water and surface 

water from the site.”268 There is no justification for failing to exclude the exposure pathway 

documented in these damage cases from the risk assessment. The statute directs EPA to consider 

all potential danger to human health and the environment and all damage from leachate, and 

EPA’s risk assessment should consider risks posed by direct discharges of leachate from surface 

impoundments and landfills. 

 Second, the RCRA open dumping regulations provide further support that direct 

discharges from coal combustion waste surface impoundments and landfills are within the scope 

of EPA’s RCRA risk assessment. A facility is a RCRA open dump if the facility “cause[s] a 

discharge of pollutants into waters of the United States that is in violation of the requirements of 

the National Pollutant Discharge Elimination System (NPDES) under Section 402 of the Clean 

Water Act, as amended.”269 Although several courts have held that citizens may not enforce 

violations of 40 C.F.R. § 257.3-3(a), EPA has expressly stated that the regulation is valid for 

determining whether a facility is an open dump.270

 

[T]oday’s amendments . . . modify the surface-water criterion of § 257-3.3. As 

originally promulgated, that standard would have made discharges violating 

requirements under Section 402 or Section 404 of the Clean Water Act open 

                                                       

264 Id. 265 Id. at 12–13. 266 Id. at 20. 267 Id. at 25. 268 Id. at 36. 

269 40 C.F.R. § 257.3-3(a). 270 EPA, Final Rule: Guidelines for Development and Implementation of State Solid Waste Disposal Facilities and 

Practices, 46 Fed. Reg. 47,048, 47,050 (Sept. 23, 1981). 
80 

dumping practices as well. A party causing such a violation could simultaneously 

be subject to penalties under the CWA and a citizen suit to enjoin ‘open dumping’ 

under RCRA. Today’s amendment eliminates this double liability. However, 

since the open dump inventory classification for purposes of the State planning 

program does not impose legal sanctions under RCRA, the Criteria retain the 

provision that a violation of Section 402 or Section 404 makes a facility an open 

dump . . . EPA believes that the CWA enforcement mechanisms are sufficient to 

handle violations under Section 402 and 404.271

 

Thus, EPA’s assertion that Clean Water Act discharges are somehow outside the scope of 

review because the risk assessment was undertaken pursuant to RCRA is without merit. EPA 

must consider all potential danger from coal combustion waste disposal and all damage from 

leachate when determining whether Subtitle C regulations are warranted.272 Danger and damage 

to public health and the environment caused by Clean Water Act discharges are not exempt, and 

EPA must evaluate risks posed by both direct discharges to surface waters and groundwater 

transport to surface water. 

ii. Risks to Aquatic Ecosystems and Wildlife. 

The risks that EPA did identify underscore the importance of evaluating additional 

impacts from pollution of surface water more fully. Importantly, EPA’s risk assessment found 

substantial risk from coal combustion waste disposal sites to aquatic ecosystems and the wildlife 

they support from groundwater transport to surface water and sediment pathway.273 EPA 

evaluated ecological risks for both landfills and ponds, based on predicted exposures of wildlife 

and vegetations to toxic metals that migrate from groundwater to surface water and sediment.274 

Predicted exposures are compared to ecological hazard quotients for specific pollutants, e.g., 

concentrations that are thought to be safe for aquatic life.275

 EPA states that “[t]he ecological risk results and damage cases suggest the potential for 

adverse ecological effects to plants, terrestrial organism, and aquatic systems from CCW releases 

into the subsurface and subsequent connection with surface waters, particularly for CCW 

managed in unlined surface impoundments.”276 The results are shocking: 

 Unlined impoundments are predicted to leak boron into surface waters at 

concentrations up to 2,375times higher than levels estimated to be safe for aquatic 

life.277 Even clay-lined impoundments will release boron at levels 854 times 

above the HQ, or safe level, according to the EPA.278

                                                       

271 Id. (emphasis added). 272 42 U.S.C. § 8002(n). 273 EPA, 2010 Risk Assessment, at 4-26. 274 Id. 275 Id. 276 EPA, 2010 Risk Assessment, at 4-26. 277 Id. at 4-29 tbl. 4-21. 278 Id. 
81 

 Based on predicted exposures to river otters, lead from unlined impoundments 

will reach surface waters at concentrations 22 times higher than the HQ, or safe 

level, while arsenic and selenium concentrations will be more than 10 times 

higher.279

 Toxic metals can also be embedded in the sediment at the bottom of rivers or 

lakes, where they can be very difficult to remove, and poison plants and bottom 

feeding fish. The EPA’s study predicts lead leached from unlined surface 

impoundments will reach levels that are 311 times higher than levels considered 

harmless, while arsenic will exceed the safe threshold by 127 times.280 Lead and 

arsenic from unlined landfills are also expected to contaminate sediments at levels 

58 and 11 times above no risk thresholds respectively.281

Table 31: Summary of 90th Percentile Full-Scale CCW Ecological Risk Results: Groundwater to Surface 

Water Pathway, Aquatic Receptors282

Chemical Unlined Units Clay-Lined Units Exposure Pathway Receptor 

Landfills

Boron 281 78 direct contact aquatic biota 

Lead 8 0.4 ingestion river otter 

Selenium 2 0.7 direct contact aquatic biota 

Arsenic 2 0.1 direct contact aquatic biota 

Barium 2 0.2 direct contact aquatic biota 

Surface Impoundments 

Boron 2,375 854 direct contact aquatic biota 

Lead 22 7 ingestion river otter 

Arsenic 13 4 direct contact aquatic biota 

Selenium 12 4 direct contact aquatic biota 

Cobalt 6 3 direct contact aquatic biota 

Barium 3 1 direct contact aquatic biota 

Cadmium 1 0.7 direct contact aquatic biota 

Table 32: Summary of 90th Percentile Full-Scale CCW Ecological Risk Results: Groundwater to Surface 

Water Pathway, Sediment Receptors283

Chemical Unlined Units Clay-Lined Units Exposure Pathway Receptor 

Landfills

Lead 58 1 direct contact aquatic biota 

Arsenic 11 3 ingestion river otter 

Cadmium 5 1 direct contact aquatic biota 

Antimony 2 0.5 direct contact aquatic biota 

Surface Impoundments 

Lead 311 58 direct contact aquatic biota 

Arsenic 127 55 ingestion river otter 

Cadmium 30 9 direct contact aquatic biota 

                                                       

279 Id. 280 Id. at 4-31 tbl. 4-23. 281 Id. 282 EPA, Risk Assessment, 4-29 tbl. 4-21. 283 EPA, 2010 Risk Assessment, 4-31 tbl. 4-23. 
82 

iii. Significant Risks to Human Health 

 In addition to these ecosystem impacts, EPA’s risk assessment evaluated risks to human 

health from the consumption of fish contaminated by pollution from coal combustion waste 

impoundments and landfills. EPA found that risk “[r]esults at that 90th percentile exceeded an 

HQ of 1 for selenium in unlined (HQ of 3) and clay-lined (HQ of 2) impoundments managing 

conventional CCW, and also exhibited excess cancer risks just above 1 in 100,000 for arsenic in 

unlined (3 in 100,000) and clay-lined (2 in 100,000) impoundments comanaging CCW.”284 

Thus, it is clear from EPA’s risk assessment that coal combustion waste disposal poses a 

significant danger to both human health and the environment from the groundwater to surface 

water fish consumption pathway. Additional risks from surface water pollution need to be 

assessed as well. 

iv. Damage Cases 

Numerous damage cases also document the serious adverse impacts to human health and 

the environment from coal combustion waste disposal from this pathway. The risk assessment 

needs to account for these real world examples. 

Table 33: Summary of EPA Proven Damage Cases: Groundwater Transport to Surface 

Water 

Site Name/ Location Reported Damage 

PEPCO MD Generating Station- Offsite Disposal 

Facility, MD 

Vegetative damage, iron 

precipitation and low pH 

Alliant Nelson Dewey Ash Disposal Facility, 

Wisconsin 

Boron levels would have exceeded 

States recently promulgated health 

based regulations. 

WEPCO Cedar-Sauk Landfill, Wisconsin 

Vegetative damage in wetland due 

to boron uptake, selenium in 

groundwater exceeded MCL 

                                                       

284 EPA, 2010 Risk Assessment, 4-13. 
Table 34: Summary of EIP/Earthjustice Damage Cases: Groundwater Transport to Surface Water 

Site Name/ Location Reported Damage 

Consumer Energy-Karn/Weadock Generating Facility, Michigan Elevated levels of arsenic and boron in groundwater. Contamination flowing into SUGI Development Company, UGI Hunlock Power Station, Pennsylvania 

Contaminated groundwater leaching into Susquehanna River. Groundwater concenand manganese significantly above MCL. 

South Carolina Electric and Gas -Wateree Station, South Carolina Arsenic in groundwater 18 times MCL. Fish in Wateree river have elevated levels TVA- John Sevier Fossil Plant, Tennessee Cadmium in groundwater exceeds MCL which discharges into Holston River and i

of boron and strontium also found in banks of Holston River. 

NRG Energy- Indian River Generating Station, Delaware 

On-site groundwater exceeds MCL for arsenic, chromium, and thallium. Off-site sCreek exceeds EPA's freshwater CCC for aquatic life for aluminum and iron. 

Tampa Electric Company-Big Bend Station, Florida 

Arsenic in on-site groundwater has been measured at 11 times the federal primary Mpollutants and trace elements have also been measured at levels far above secondarStandards and Florida Groundwater Clean-up Target Levels 

Mirant MD Ash Management LLC, Brandywine Coal Ash Landfill, Maryland 

MDE has documented cadmium levels that exceed the primary MCL, and levels of

iron, manganese, sulfates, and total dissolved solids at levels that exceed secondary 

lead levels also exceed water quality criteria regularly in Mataponi Creek downstre

this Landfill. 

RRI Energy- Seward Generating Station, Pennsylvania 

Surface water quality monitoring downstream from the ash sites contained 27 exceWater Quality Criteria for Fish and Aquatic Life, including exceedances for alumin

SCANA- Urquhart Station, South Carolina Sampling of a replacement well positioned near a wetland showed that arsenic was 

mg/L standard. This result indicates that groundwater adjacent to the wetland is con
84 

Southern Illinois Power Cooperative-Marion Plant , Illinois 

Groundwater contains high levels of cadmium, boron, and iron. Saline Creek is a dShallow Groundwater. 

Louisville Gas and Electric -Mill Creek Plant, Kentucky 

Groundwater contaminated with arsenic 1.5 times the MCL and TDS 2.5 times Sec

flows into Ohio River. 

TVA-Shawnee Fossil Plant, Kentucky Arsenic, boron, and selenium contaminated groundwater feeds into Ohio River via CLECO Power-LLC Dolet Hills Power Station, Louisiana 

Selenium has been reported at the CCW landfill monitoring wells at 3.5 times the Mzone that discharges to the surface water. 

Allegheny Energy Supply Company- Hatfield's Ferry Power Station, Pennsylvania 

From 1984 until 2001, CCW leachate and shallow groundwater that contacted CCW 

any treatment, to an earthen impoundment, and then discharged into an unnamed tr

Creek. The CCW leachate discharges caused exceedances in NPDES limits for aluthallium. 

TVA- Johnsonville Fossil Plant, Tennessee 

TVA data show that groundwater on the island contains high levels of arsenic, alumchromium, iron, lead, manganese, molybdenum, sulfate, and total dissolved solids Maximum Contaminant Levels (MCLs), Secondary MCLs (SMCLs), and federal h

This groundwater discharges into the Tennessee River. 

NRG Energy/ Montville Power LLC, Montville Generating Station, Connecticut 

"In the northeastern part of the Montville Station, average concentrations (2007–20groundwater Monitoring Well, NRG-MW-6, were more than 20 times the federal MLevel (MCL). Average concentrations of beryllium also exceeded the MCL in this 

CLECO Power-LLC Rodemacher Power Station, Louisiana 

"Groundwater monitoring wells at compliance boundaries for a a CCW landfill, sevat the Rodemacher Station have been contaminated with arsenic up to 5.75 times th

Contaminant Level (MCL) and lead exceeding the MCL." 
85 

First Energy-Bruce Mansfield Power Plant Little Blue Run Surface Impoundment, West Virginia 

Discharges to surface water have caused exceedances of Pennsylvania Water Qualileast eight times in three locations between 2003 and 2010. There have been numecontaminations including exceedances of arsenic, boron, cadmium, lead, and seleni

Otter Tail Power- Big Stone Power Plant, South Dakota 

"Exceedances have been measured in downgradient groundwater for arsenic at morfederal MCL at 0.1322 mg/L, boron up to 34 times the federal Lifetime Health Advlead up to 7 times the federal Action Level at 0.1086 mg/L, strontium up to 1.5 timHealth Advisory at 6.03 mg/L, chloride up to 13 times the federal Secondary MCL and sulfate up to 112 times the state standard and 224 times the federal SMCL at 5

Lower Colorado River Authority-Fayette Power Project, Texas 

"Groundwater sampling at LCRA’s Fayette Power Project (FPP) has found levels omolybdenum exceeding Texas Protective Contamination Levels (PCLs) and federa
v. Direct Discharge to Surface Water 

The potential danger to human health and the environment from direct discharges of coal 

combustion waste leachate is likely greater than the significant risk posed by the groundwater to 

surface water pathway. Although EPA did not evaluate risk from direct discharges to surface 

water, the same kinds of impacts to human health and the environment caused by groundwater 

transport to surface water will be present where there are direct discharges. The concentrations 

of pollutants will often be much higher in direct discharges as opposed to the discharges from 

slow motion leaks into groundwater that has a hydrogeological connection to surface waters. As 

discussed previously, power plants routinely discharge selenium above water quality standards 

that protect aquatic life.285 In addition, large direct releases can have acute catastrophic effects 

on an ecosystem. 

EPA has identified at least three damages cases where direct discharges to surface waters 

are identified as the basis for listing as a proven damage case: Belews Lake, North Carolina; 

Basin Electric Power Cooperative W.J. Neal Station Surface Impoundment, North Dakota; and 

Georgia Power Company’s Plant Bowen, Georgia.286 Fly ash produced by a coal-fired power 

plant in North Carolina was disposed of in a settling basin, which released selenium-laden 

effluent into Belews Lake in the 1980s.287 As a result, 16 of the 20 species of fish in the lake 

were completely eliminated.288The 44-acre unlined Basin Electric Power Company W.J. Neal 

Station Surface Impoundment in North Dakota, discharged polluted wastewater directly into a 

marsh, contaminating the marsh with arsenic, cadmium, lead, zinc, and other toxic pollutants.289 

The Plant Bowen surface impoundment released 2.25 million gallons of coal ash slurry 

containing 281 tons of ash was released into a tributary of Euharlee Creek.290 In addition, the 

Plant Bowen impoundment discharged approximately 80 tons of coal ash slurry into “Euharlee 

Creek through a stormwater drainage pipe resulting in a temporary degradation of public 

waters.”291

 In addition to EPA’s damage cases, our analysis has identified at least eleven damage 

cases that are, at least in part, the result of direct discharges to surface water: 

                                                       

285 See Attachment 18 (selenium chart). 286 2007 EPA Damage Case Assessment, at 25. 287 Id. at 25. 288 Id. 

289 Id. 

290 Id. at 20. 

291 Id. 
Site Name/ Location Reported Damage 

Mirant MD Ash Management LLCBrandywine Coal Ash Landfill, Maryland In 2008 the Maryland Department of the Environment reported exceedances of water qu

aquatic life in surface water. 

RRI Energy-Seward Generating Station, Pennsylvania 

Surface water quality monitoring downstream from the ash sites contained 27 exceedan

Pennsylvania Water Quality Criteria for Fish and Aquatic Life, including exceedances fnickel, and zinc. In addition, Outfall 12 which flows directly from the coal ash pile. 

Orion Power Holdings, Inc.-Fern Valley Coal Combustion Waste Landfill, Pennsylvania 

Surface water downstream from the plant has higher levels of arsenic, boron, chloride, 

compared to surface water upstream. This deteriorating surface water quality has causmean species diversity and equitability. 

RRI Energy-Portland Generating Station's Bangor Quarry Ash Disposal Site, Pennsylvania 

Surface water discharges have caused concentrations of boron, cadmium, hexavalent ch

selenium in Brushy Meadow Creek to exceed Pennsylvania’s Water Quality Criteria CoConcentration for Fish and Aquatic Life. 

Trans-Ash, Inc.-CCW Landfill, Tennessee 

Tennessee Department of Environment and Conservation issued a notice of violation fointo an unnamed tributary to Cypress Creek. TVA has acknowledged that leachate from 

discharges to surface water on the eastern side of the landfill. 

American Electric Power- John Amos Plant Little Scary Creek Creek Fly Ash Impoundment, West Virginia 

Fish taken from the Little Scary Creek in 2006 had selenium concentrations in their tisstimes higher than EPA’s proposed criterion. 

American Electric Power- Mitchell Generating Station, West Virginia 

Effluent discharges from the Mitchell Generating Station have caused exceedances in thin Connor Run Creek. Data from the West Virginia Department of Environmental Prothe Connor Run Creek fish had an average tissue selenium concentration of 24.4mg/kg. 

AES-Cayuga Coal Ash Disposal Landfill, New York 

The CCW leachate prior to being discharged from the pond contains levels of arsenic, band other metals that exceed federal and/or state groundwater standards. 

American Electric Power- General James M. Gavin Power Plant 

In April and July 2009 exceedances of the daily maximum concentration for boron werOutfall 007. In addition Outfall 001 discharges from a decommissioned fly ash pond intthat eventually goes into the Ohio River. 
88 

American Electric Power-Muskingum River Plant, Ohio 

Outfall 002 discharges ash pond effluent directly into the Muskingum River. Leachate has concentrations of arsenic above the MCL and sulfate above the SMCL. 

First Energy-Bruce Mansfield Power Plant Little Blue Run Surface Impoundment, West Virginia 

Discharges to surface water have caused exceedances of Pennsylvania Water Quality C

at least eight times in three locations between 2003 and 2010. There have been numerosurface water contaminations including exceedances of arsenic, boron, cadmium, lead, 
 In summary, electric utility industry discharges millions of pounds of toxic pollutants into 

our lakes, rivers, streams, and wetlands. The discharges from coal combustion waste surface 

impoundments and landfills routinely exceed water quality standards to protect aquatic life for 

metals like selenium. EPA risk assessment fails to fully account for the potential danger posed 

by these discharges because it does not evaluate direct discharges to surface waters. EPA’s risk 

assessment found that coal combustion waste disposal creates significant risks for the 

environment and public health from groundwater transport to surface water. The risks posed by 

direct discharges are likely to be much higher, and EPA should account for these risks when 

determining whether Subtitle C regulations are warranted. Regardless, EPA’s risk assessment 

and the numerous damage cases and scientific data demonstrate that coal combustion waste 

disposal poses a significant potential danger to human health and the environment, and warrants 

regulation under Subtitle C regulation. 

 

D. Analysis of the Documented Cases in which Danger to Human Health or the 

Environment from Surface Runoff or Leachate has been Proved from CCR 

Mismanagement Indicates Unequivocally that Federal Oversight Pursuant to 

Subtitle C of RCRA is Warranted. 

 In section 8002(n)(4) of RCRA, Congress required EPA to take into account the 

“documented cases in which danger to human health or the environment from surface runoff or 

leachate has been proved.”292 To perform this analysis, EPA has developed over two decades an 

elaborate system of cataloging potential and proven “damage” cases. While these comments will 

show that the number of proven and potential damage cases, as defined by EPA, have increased 

substantially since the 2000 Determination, we also assert that EPA’s interpretation of this 

requirement is unlawful, and if pursued, will lead to results contrary to RCRA. 

 In section 8002(n)(4), Congress required EPA to assess cases where “danger,” not 

“damage,” has been proved. The distinction between danger and damage is critical—danger 

speaks to the threat posed to health or the environment, while damage represents harm that has 

already occurred. The clear interest of Congress in RCRA is the prevention of “damage” 

through the identification of danger. This is apparent in the language of sections 7002 and 7003 

of RCRA.293 In both sections, Congress authorized citizens and EPA, respectively, to bring suit 

in the event that solid waste handling, storage, treatment, transport or disposal “may present an 

imminent and substantial endangerment of human health or the environment.”294(Emphasis 

added.) Congress was interested foremost in prevention of harm (i.e. in danger, not damage). 

Thus to file suit under either section, neither damage nor even a release of waste was required. 

Courts have in fact found that imminence does not require a showing that actual harm will occur 

immediately so long as risk of threatened harm is present.295 Similarly, the First Circuit Court of 

Appeals concluded that citizens may file suit under section 7002 when there is “a reasonable 

prospect of future harm ... so long as the threat is near-term and involves potentially serious 

harm.”296

                                                       

292 42 U.S.C. § 6982(n)(4). 

293 42 U.S.C. §§ 6972 and 6973. 

294 42 U.S.C. §§ 6972(a)(1)(B) and 6973(a). 

295 Raytheon Co. v McGraw-Edison Co., Inc, 979 F. Supp 858 (E.D. Wis. 1997). 

296 Maine People's Alliance v. Mallinckrodt, Inc. 471 F. 3d 277 (1st Cir. 2006). 
90

 That said, there is a wealth of evidence that both proven “danger” and damage has occurred 

at a great many CCR storage, disposal and reuse sites. The following section discusses such 

evidence and its implications. In sum, the dramatic increase in the number of damage cases, the 

severity of the harm occurring at the sites, and their distribution throughout the U.S., particularly 

in the states that generate the greatest volumes of CCRs, demonstrate the need for subtitle C 

regulation. 

Management of CCR by states in the absence of minimum safeguards has 

contaminated water supplies, harmed or endangered human health, and harmed biota and 

the environment throughout the US. As of September 2010, some 137 damage sites in 35 

states have been either documented by the Environmental Integrity Project, Earthjustice 

and Sierra Club297 or identified as proven or potential damage sites by EPA.298 This is 

more than 17 times the number of damage cases identified in EPA’s 1999 Report to 

Congress on Wastes from the Combustion of Fossil Fuels and a three-fold increase from 

the number of damage cases acknowledged in EPA’s 2000 Regulatory Determination on 

these wastes. 

The majority of the coal combustion waste damage cases identified by EPA and 

public interest groups reveal that current disposal practices are contaminating ground and 

surface waters with toxic pollution. CCR damage cases are not an artifact of past practices. 

The contamination is pervasive, occurring to date in at least 35 states at levels that have 

exceeded health-based standards in the large majority of instances. The pollution from 

many CCR disposal sites is migrating off-site and poses a grave threat to drinking water 

sources and our rivers, lakes, and streams. This contamination has real consequences for 

Americans, and many citizens living near CCR disposal sites testified about the adverse 

health effects they experience at the public hearings held by EPA in conjunction with this 

proposed rule. For the most part, states have failed to take action to halt and clean up 

contamination. 

Yet EPA’s investigation of damage cases is woefully inadequate. In light of EPA’s 

statutory mandate, EPA must investigate and account for the overwhelming data 

documenting CCR damage cases across the United States. These data irrefutably 

demonstrate that subtitle C regulations are necessary to protect public health and the 

environment. 

1. EPA’s Investigation of Damage Cases Is Grossly Incomplete. 

                                                       

297 See Envtl. Integrity Project & Earthjustice, Out of Control: Mounting Damages from Coal Ash Waste Sites (Feb. 

24, 2010) available at http://www.earthjustice.org/sites/default/files/library/reports/ej-eipreportout-of-controlfinal.pdf; Envtl. Integrity Project, Earthjustice, & Sierra Club, In Harm’s Way: Lack of Federal Coal Ash 

Regulations Endangers Americans and their Environment (Aug. 26, 2010) 

http://www.earthjustice.org/sites/default/files/files/report-in-harms-way.pdf [Hereinafter EIP, Earthjustice, and 

Sierra Club are collectively referred to as “EIP,” and the reports are referred to collectively as “EIP reports.”) 

298 2007 EPA Damage Case Assessment.
91

The 17-fold increase in damage cases from 1999 becomes even more remarkable when 

one considers that EPA has never undertaken its own, independent, systematic evaluation of sites 

damaged by CCR. It has relied from the beginning largely on private third parties, initially the 

utilities themselves, to bring forward evidence of damage cases. In its 1988 Report to Congress 

(RTC), EPA relied heavily on two studies commissioned by the organizations representing the 

utility industry in Washington, DC—the Utilities Solid Waste Activities Group (USWAG) and 

Edison Electric Institute (EEI)—to identify “documented cases” of damage. The 1988 RTC 

states: 

To supplement these two major studies, in 1987 EPA conducted a literature review of all 

readily-available sources, which revealed only two additional case studies on proven 

damages occurring in 1980 and 1981. The Agency has not identified any proven damage 

cases in the last seven years; however, no attempt was made to compile a complete 

census of current damage cases by conducting extensive field studies.299 

The first industry study, done by the Envirosphere Company, identified nine cases that appeared 

to show damage to the environment, and the second study, by Dames and Moore, “identified 

seven cases that presented a potential danger to human health and the environment.”300 Not 

surprisingly, both studies downplayed the impacts. Envirosphere “noted that the information 

available on the potential impacts of utility waste disposal were inconclusive”301 and Dames and 

Moore “concluded that none of these cases represented a “documented” case of such danger.”302 

Thus they rejected sites such as Chisman Creek, an Superfund site in Virginia where EPA had 

identified coal combustion wastes as a major source of contamination of drinking water wells; 

Michigan City, Indiana, where coal ash ponds had contaminated underlying groundwater with 

arsenic up to 100 times the MCL; and Clinch River, Virginia, where the collapse of an ash pond 

levee wiped out more than 200,000 fish for more than 90 miles downstream.303 

All told, EPA identified only two sites in the 1988 RTC that met its “test of proof” for 

damage cases. EPA’s first Regulatory Determination on CCW in 1993 identified four more 

damage sites that met this “test of proof.” In its 1999 Report to Congress, EPA considered more 

information voluntarily submitted by the utilities, in addition to sites in its Superfund Program’s 

CERCLA Information System.304 From this review, EPA identified a total of six proven damage 

sites and two potential damage sites in the 1999 RTC.305 

Despite identifying only minimal damage through industry submissions, and rather than 

using its authority to conduct its own investigations, EPA looked to environmental groups and 

citizens to obtain additional information. Often, however, the information presented by citizens 

was not complete enough to meet EPA’s “test of proof.” In these cases EPA rejected further 

examination without timely investigation or follow-up. The evidentiary threshold used by EPA 

                                                       

299 EPA, Report to Congress: Wastes from the Combustion of Coal by Electric Utility Power Plants (EPA 530-SW88-002), at 5-53 &5-54 (Feb., 1988). 

300 Id. 301 Id. 302 Id. 303 Id. at 5-54 to 5-63. 304 These included about 14 “comanagement” sites (submitted by the Electric Power Research Institute or EPRI). 305 1999 Report to Congress v. 2, at 3-47 to 3-49, 4-17 & 4-18. 
92

was too high, and it was higher than “tests of proof” for a previous regulatory determination on 

another Bevill waste.306 As a result of this unreasonably high threshold, out of 59 proposed 

damage cases that citizen/environmental organizations submitted in comments on the 1999 RTC, 

the Agency accepted nine as “proven” damage cases and 25 as “potential” damage cases in its 

2000 Regulatory Determination. As for the 25 other cases submitted by citizens, without any 

attempt to independently verify the accuracy of the information, examine sites, or look further 

into case histories or files of state regulatory agencies, EPA rejected 18 as “indeterminate due to 

insufficient information”307

 

In addition to rejecting these 25 sites with minimal examination, EPA readily admits in 

its 2007 Coal Combustion Waste Damage Case Assessment that it did not evaluate at all some 44 

of the 135 total sites—nearly a third of the sites that were brought to its attention from 1999 to 

2002--because they “involved allegations with little or no supporting information.” 308 

Thus without attempting to independently verify claims of contamination or inspect any 

sites, the Agency’s 2007 identification of damage sites309 rejected sites like the Cardinal Fly Ash 

Reservoirs in Ohio; of that site EPA said that

[t]he State has ground water monitoring data for the site, but the 

representatives could not confirm the presence of any suspected impacts. The 

data do not show any exceedences of primary or secondary MCLs. 

Furthermore, according to the State’s hydrogeologists, interpretation of the 

data is occluded by mining impacts in the area. There are no exceedences of 

primary or secondary MCLs at this site. Therefore, this site is categorized as a 

case without documented evidence of proven or potential damage to human 

health or the environment.310 

 Yet American Electric Power (AEP) first reported exceedances of MCLs in the 

groundwater surrounding these large ash ponds to the Ohio Environmental Protection Agency 

(OH EPA) in 1993 and reported statistically significant increases of CCR constituents in 

groundwater monitoring wells to OH EPA in early 1999 and 2000.311 Indeed, OH EPA had 

confirmed that groundwater monitoring at the site indicated that “fly ash related constituents” 

had entered the groundwater surrounding the two ponds with statistically significant increases of 

arsenic and a number of other parameters in 2004.312 In fact, an OH EPA report concluded that 

the ash ponds were in direct contact with the underlying groundwater in 2006, and AEP itself 

admitted in 2007 that continued inundation of the aquifer by water from one of the ponds would, 

in the short term, have “a significant influence on groundwater quality from ash pond 

                                                       

306 See Comments on the U.S. Environmental Protection Agency’s Coal Combustion Waste Damage Case 

Assessment (July 2007), EPA, Notice of Data Availability RCRA Docket No. EPA-HQ-RCRA-2006-0796, 

Earthjustice, Clean Air Task Force et al., 2–4 (Feb. 11, 2008). 307 2007 EPA Damage Case Assessment, at 2–3. 308 Id. at 7. 

309 Id. 310 Id. at 59. 311 Id. 312 Id.
93

recharge.”313 Samples from ash pore water in the pond contained arsenic at more than 46 times 

the MCL, molybdenum at 37 times EPA’s Lifetime Health Advisory, and boron at 4 times 

EPA’s Child Health Advisory. Not surprisingly, monitoring of groundwater leaving the pond 

area showed that arsenic had been measured at 0.10 mg/L, 10 times the MCL, while 

molybdenum and boron had been measured 10 times and nearly 2 times their Health Advisory 

standards, respectively (there are no MCLs for molybdenum or boron). The Tidd-Dale 

subdivision 2,000 feet downstream from these ponds relies on private drinking water wells that 

are directly in the path of this contamination.314 

 EPA similarly relied on the word of OH EPA to reject contamination alleged at the AEP 

Gavin Plant’s ash ponds and landfill in its 2007 EPA Damage Case Assessment: 

The representatives could not confirm the presence of any suspected 

impacts and the State has not undertaken any regulatory action at the site. 

There is no evidence of damage at this site. Therefore, this site is 

categorized as a case without documented evidence of proven or potential 

damage to human health or the environment. 315 

 In contrast, the examination of this site in the second EIP Report found the underlying 

groundwater to be contaminated with arsenic up to 0.057 mg/L (5.7 times the MCL), barium up 

to 13.8 mg/L (6.9 times the MCL), lead up to 0.051 mg/L (3.4 times the MCL) and cadmium 

exceeding the MCL.316 Widespread, major exceedances have also been occurring for alpha 

radioactivity, with readings as high as 1,497 pCi/L (99.8 times the MCL). Molybdenum has 

been measured at 0.409 mg/L (more than 10 times the federal Lifetime Health Advisory Level). 

All of these parameters except cadmium have been exceeding MCLs (or the LTHA for 

molybdenum) since the mid-1990s. The contamination appears to be spreading as the number of 

wells contaminated with alpha activity above the MCL has doubled from 1994 to 2009 and has 

reached a monitoring well 700 feet south of the landfill and in the direction of contaminant flow. 

NPDES permit violations for the landfill and the closed fly ash/bottom ash pond have also 

occurred for copper, boron, and sulfate. Acute toxicity to aquatic life has been documented in 

whole effluent toxicity tests by AEP in Stingy Run and Kyger Creek immediately downstream of 

the permit discharges. While OH EPA has not taken any enforcement actions, it has required 

AEP to perform assessment monitoring at four wells.317

 EPA similarly rejected the Muskingum fly ash pond in Ohio as a damage site, claiming 

that OH EPA representatives had maintained that there were no exceedances of primary or 

secondary MCLs at the site.318 Monitoring data establish, however, that concentrations of alpha 

activity have been up to 8.5 times the MCL in shallow groundwater exiting the site, and sulfate, 

iron and TDS have been exceeding their respective MCLs. Arsenic and mercury in seepage from 

the ash pond’s dam were also more than 3 times their respective MCLs. Ohio Department of 

                                                       

313 Id. 314 In Harm’s Way, at 120–24. 315 2007 EPA Damage Case Assessment, at 61. 316 In Harm’s Way, at 124–31. 317 Id. at 125–32. 318 2007 EPA Damage Case Assessment, at 62. 
94

Natural Resources’ (DNR) records indicate that there are 70 private wells within 2 miles of the 

Muskingum ash pond and 63 wells within 1.5 miles of the Gavin landfill and ash ponds. In both 

cases many of these wells are in the direction of contaminant flow.319 

 EPA has also rejected cases that even more clearly meet the criteria for proven damage 

cases. For example, a catastrophic release of caustic ash slurry from the collapse of an ash pond 

dike in June 1967 at the Clinch River Plant in Virginia killed an estimated 217,000 fish for 90 

miles downstream of the spill, wiped out mussels and other aquatic life, and left the river 

ecosystem damaged for more than a decade. Yet even though EPA acknowledged this spill as a 

damage case in its 1993 Regulatory Determination, it now rejects the Clinch River spill as a 

damage case because “there was no evidence of comanagement (of CCR) at this site.”320 There 

is no logical explanation for the Agency’s decision on this case. 

 

 In August 2007, environmental organizations formally submitted a summary of 15 

additional cases of damage to US EPA in comment on the Notice of Data Availability (NODA) 

for RCRA Docket No. EPA-HQ-RCRA-2006-0796 and once again specifically asked the 

Agency to investigate these sites for inclusion on its damage case list and, where warranted, to 

pursue remedial action. Yet the discussion in the preamble to the proposed rule provides no 

indication that the Agency has considered or investigated 14 of the 15 sites that were submitted. 

Environmental groups have since submitted two reports that document substantial evidence of 

damage to groundwater, surface water, drinking water and/or aquatic life at 70 damage sites in 

every major region of the US.321 Fourteen of the 15 cases summarized in our comment on the 

2007 NODA are examined in these reports. In addition, in these comments we provide 

information on 37 additional cases and note 10 more sites on the National Priority List that 

warrant careful examination by EPA for recognition on its damage case list.322 

As EPA moves to a final rule, it is essential that the Agency consider the 137 sites in the 

two 2010 reports from EIP, Earthjustice and Sierra Club, as well as the additional 47 sites 

identified in these comments. We also ask that EPA consider all other sites that it has “rejected” 

or declared “indeterminate” in order to fulfill its responsibility under the statute to consider 

damage from coal ash sites. 

2. CCR Damage Cases Are Not An Artifact of Past Practices 

An examination of the 137 damage cases shows that more than 90 percent of the 

cases involving wet storage or disposal are occurring at operating surface impoundments 

and two-thirds of the cases involving dry disposal are occurring at operating landfills.323 

Rather than being an artifact of past practices, damage is an ongoing reality at operating 

units, both new and old. Some 130 power plants, more than one-fourth of the 495 plants 

identified in EPA’s Regulatory Impact Analysis, are involved in these damage cases.324 

The conditions that spawned these damage cases—mismanagement of coal ash in unlined 

                                                       

319 In Harm’s Way, at 128–29, 145–49. 320 2007 EPA Damage Case Assessment, at 60. 321 See Out of Control and In Harm’s Way. 322 See Appendix F. 323 See Appendix F. 324 See Appendix F. 
95

or inadequately lined landfills, pond and pits—are practices that continue today. Placement 

of CCR in wetlands, water tables, and unlined gravel pits are unfortunately 21st century 

disposal practices. Even worse, the absence of monitoring at many of these sites means 

that there are likely many more CCR-contaminated sites of which regulators and nearby 

residents are simply unaware. 

3. Concentrations of Toxic Contaminants Routinely Exceed Health 

Standards at CCR Damage Cases 

The toxicity found at these damage sites is very high and persistent. Exceedances 

of MCLs have been measured in shallow groundwater downgradient of the waste for 

every one of EPA’s appendix VIII parameters at these sites.325 These include antimony, 

arsenic, barium, beryllium, cadmium, chromium, lead, mercury, nickel, selenium, silver, 

and thallium, all of which are highly toxic and persistent in the contaminated 

environments at ash sites.326 

MCL exceedances have been documented most frequently for highly toxic trace 

elements such as arsenic, cadmium, chromium, lead and selenium.327 The MCL for total 

chromium has been exceeded at 20 of the damage cases identified by EPA and 

environmental groups (hereinafter EPA/EIP damage cases). The MCL for arsenic has 

been exceeded at 66 sites, almost half of the damage cases, with a maximum value 342 

times the MCL. Measured arsenic concentrations have exceeded the MCL by more than 

10 times at 26 sites, and have been equal to or greater than 100 times the MCL in 

downgradient groundwater at 6 sites. These include Michigan City ash ponds and Yard 

520 landfill in Indiana, Hatsfield’s Ferry landfill and UGI Hunlock ash pond in 

Pennsylvania, Karns and Weadock landfill in Michigan, and Indian River Burton Island 

landfill in Delaware. The MCL for lead has been exceeded at 30 sites, one-fifth of all 

damage cases to date, with a maximum value 179 times the MCL. Lead has exceeded the 

MCL by more than 10 times at 6 sites. The MCL for selenium has been exceeded at 26 

sites with the highest concentration 37 times the MCL. The MCL for cadmium has been 

exceeded at 28 sites, with a maximum concentration 170 times the MCL, and 10 sites 

exceed the cadmium MCL by more than 10 times. 

Other highly toxic but less frequently monitored appendix VIII parameters have exceeded 

their MCLs by multiple times in groundwater contaminated by CCR. Mercury has exceeding the 

MCL at four sites by as much as 450 times, antimony has exceeded the MCL at three sites by as 

much as 52 times, beryllium has exceeded the MCL at four sites by as much as 30 times, 

thallium has exceeded its MCL at five sites by as much as 8 times, and barium has exceeded the 

MCL at seven sites by as much as 7 times. Nickel has exceeded its former MCL and current 

lifetime health advisory (LTHA) of 0.1 mg/L at seven sites by as much as 30 times. The LTHA 

for silver, another infrequently measured parameter, has been exceeded at two sites. 

                                                       

325 See 40 C.F.R. Pt. 261, Appendix VIII. 326 See Appendix F for additional information on exceedances of Appendix VIII metals at CCR damage sites. 327 Id. All measurements quoted below are contained in the Appendix. 
96

There are many other contaminants in CCR that leach into the groundwater and surface 

waters at CCR sites at harmful levels, causing significant damage that has not been sufficiently 

appreciated due to EPA’s focus on exceedances of primary MCLs.328 Harmful concentrations of 

boron are a common occurrence at CCR damage sites. Some 33 sites, nearly one-quarter of 

recognized damage cases, have boron concentrations in groundwater exceeding EPA’s Child 

Health Advisory of 3.0 mg/L. Boron concentrations have exceeded this standard by more than 

10 times at 5 sites with the highest concentration, 520 mg/L, exceeding the standard by 173 

times. Many more damage sites are exceeding state groundwater standards for boron with values 

as high as0.315 mg/L in North Carolina, 0.90 mg/L in Wisconsin, 1.0 mg/L in Minnesota, 1.4 

mg/L in Florida and Nevada, and 2 mg/L in Illinois. 

Molybdenum has exceeded EPA’s LTHA at nine damage sites with six of those 

exceeding the standard by more then 10 times and the highest concentration, 22 mg/L, exceeding 

the standard by 550 times. More sites would likely be exceeding this standard if more states 

required monitoring for this parameter. Other metals exceeding their LTHAs include strontium 

and zinc each at four sites and copper exceeding EPA’s Action Level at one site. 

High sodium levels are commonly found in CCR leachate. The EPA’s health-based 

Drinking Water Advisory (DWA) for sodium of 20 mg/L, set to protect people on saltrestricted 

diets, has been exceeded in contaminated groundwater at seven sites with concentrations more 

than 10 times this standard at every site and a maximum recorded value of 40,000 mg/L, which 

is 2,000 times the standard. Sodium would also likely be found at many more sites if monitoring 

was routinely required for this metal. 

Very few states require monitoring for radioactivity at CCR sites despite elevated 

radioactivity commonly found around sites where large volumes of CCR are deposited. Of the 

three sites in Ohio where alpha particles were monitored, this parameter exceeded the MCL of 15 

pCi/L at all three, with the maximum concentration, 1,497 pCi/L, exceeding the standard by 

almost 100 times. 

Although no federal standards have been set for cobalt and vanadium and most sites are 

not monitored for these metals, these constituents have exceeded groundwater standards set by 

several states at CCR-contaminated sites. Health-based standards established by Florida and 

Minnesota for vanadium have been exceeded at four sites, and the residential Protective 

Concentration Level (PCL) for cobalt in Texas has been exceeded at one site in that state. 

Sites with high manganese and sulfates are only identified by EPA as exceeding nonhealth-based Secondary Maximum Contaminant Levels (SMCL) when, in actuality, the 

groundwater may have been contaminated by CCR with concentrations of these parameters that 

render it toxic for human or livestock consumption and that far exceed human health-based 

standards. The LTHA for manganese,0.3 mg/L, has been exceeded at 31 sites examined by EIP. 

These exceedances are often significant. Manganese exceeded the LTHA by more than 10 times 

in at least 11 of those sites, with a maximum concentration 333 times the LTHA. The maximum 

concentration of sulfate, 56,000 mg/L, exceeds EPA’s health-based DWA of 0.5 mg/L by 112 

                                                       

328 See Appendix F, for additional information on exceedances for non-Appendix VIII parameters at CCR damage 

sites. 
97

times. EIP found this standard exceeded at 31 damage sites with at least three sites exceeding 

the DWA by more than 10 times. If EPA’s assessments would divulge the concentrations of 

sulfate and manganese measured, the numbers of damage sites exceeding these health-based 

standards would be notably higher. 

4. The Migration of Contaminants from CCR Sites Pose Grave Threats 

to Drinking Water and Surface Water Sources. 

The contamination from many CCR sites is moving, posing far greater threats to human 

health and the environment than federal decision makers may have appreciated. Rather than 

merely contaminating underlying groundwater, the contamination from many of these sites is 

traveling offsite and moving farther away from the disposal area than EPA’s assessment of 

damage cases indicates. EPA has identified only two sites where migration of contaminants 

moved a significant distance in groundwater from the waste boundary, traveling 250 feet from 

the landfill at the Port Washington Plant in Wisconsin and 400 feet from the waste boundary of 

the Miamiview Landfill in Ohio. In contrast, public interest groups have identified 22 coal ash 

sites where contamination has traveled from 200 feet to 1 mile in groundwater beyond the waste 

boundary. Due to the rarity of off-site monitoring at coal ash disposal sites as well as the 

vulnerable geologic settings (e.g, karst geology) at many sites, there are undoubtedly many more 

sites where dangerous migration of contamination remains undetected. 

Examples of off-site migration documented by EIP include:329 

 

 At the Flint Creek CCW landfill in Arkansas, a 2009 groundwater assessment found 

selenium at 3 times the MCL, sulfate at 8 times the SMCL and 4 times EPA’s health-based 

Drinking Water Advisory (DWA), and TDS at 5 times the SMCL in a monitoring well 360 

feet downgradient from the landfill. A leachate seep discharges beyond the landfill into a 

stream that drains into unmonitored ash ponds which discharge off-site to a recreational 

reservoir without limits or monitoring of ash metals. Selenium was up to 8.4 times the MCL, 

chromium up to 3.4 times the MCL, boron up to 4 times EPA’s Child Health Advisory, 

sulfate up to 4.5 times the DWA and TDS up to 7.4 times the SMCL in samples of this seep 

collected from 2007 to 2010. 

 At the Venice Plant in Illinois, a contaminant plume with measured concentrations of arsenic 

up to 38 times the MCL extends off-site some 400 feet beyond the boundary of closed ash 

ponds. 

 At the Sheldon Plant in Nebraska, two wells 400 feet downgradient of a closed, clay-lined 

coal ash landfill at the property line have measured steadily rising selenium and sulfate 

concentrations up to 1.5 times the MCL for selenium and 1.4 times the SMCL for sulfate as 

of 2008. 

 At the Gavin Plant in Ohio underlying groundwater is contaminated with alpha activity, 

arsenic, barium, cadmium, and lead, all exceeding MCLs, and molybdenum has also been 

                                                       

329 See Out of Control; In Harm’s Way.
98

measured exceeding the EPA’s Lifetime Health Advisory (LTHA) by 2.5 times in an off-site 

groundwater monitoring well 700 feet south of the waste boundary. 

 At the Spurlock Plant in Kentucky, arsenic levels have consistently exceeded the MCL since 

2005, reaching as high as16 times the MCL in 2009 in samples from a monitoring well some 

750 feet downgradient of the CCW landfill. 

 At the Northeastern Plant in Oklahoma, a contaminant plume moving rapidly offsite from a 

coal ash landfill exceeds the arsenic MCL by more than 3 times 900 feet south of the landfill. 

Selenium has been measured at up to 1.85 mg/L, 37 times the MCL in this plume. Lead, 

thallium and average chromium concentrations also exceeded the MCL. Vanadium 

concentrations in the plume have been measured at more than 9 times over state health 

standards set by Minnesota and Florida, and all concentrations were measured 900 feet 

beyond the solid waste boundary in sampling from 2005 to the present day. 

 

 At the Boardman Plant in Oregon, vanadium has been rising since the 1990s in wells 

monitoring a coal ash fill, reaching 0.126 mg/L, 2.5 times state health standards, in 2006 in a 

well 1,500 feet downgradient of the fill. 

 At the Hatfield’s Ferry Plant coal ash landfill in Pennsylvania, total arsenic has been 

measured at 342 times the MCL, and boron and molybdenum have been measured at 5 times 

and 33 times their LTHAs, respectively, in contaminated groundwater 1,500 feet 

downgradient of the landfill. 

 At the Dolet Hills Plant in Louisiana, TDS and sulfate concentrations have reached levels 

more than four times higher than their SMCLs and more than twice the health based DWA 

for sulfate in a contaminant plume one half mile (2,640 feet) downgradient of bottom ash 

ponds. Metals have not been normally sampled at the plant’s CCW sites which have 

operated since at least 1986, but 2009 sampling found arsenic and lead exceeding their MCLs 

and selenium exceeding its MCL by more than 3 times in wells closer to the waste units. 

 

 At the Seminole Plant in Florida, groundwater at the property line, one mile (5,280 feet) 

downgradient of an unlined FGD sludge landfill, had a chloride concentration of 590 mg/L 

(twice the SMCL), a sulfate concentration of 780 mg/L (3.1 times the SMCL and more than 

1.5 times the health-based DWA), a TDS concentration of 3,100 mg/L (6.2 times the SMCL), 

a boron concentration of 4 mg/L (exceeding the EPA Child Health Advisory and 2.9 times 

the Florida standard), and 12 mg/L of iron (40 times the SMCL). The source of this plume 

was unmistakably the FGD landfill, where the shallow underlying groundwater in the same 

round of sampling had a chloride concentration of 21,000 mg/L, a sulfate concentration of 

1,100 mg/L, a TDS concentration of 59,000 mg/L, a boron concentration of 344 mg/L, and 

an iron concentration of 29 mg/L. 

EIP has documented contamination that has traveled beyond 1,000 feet from the waste 

boundary at eight sites. These include the Boardman Plant ash disposal area in Oregon, 

Hatsfield’s Ferry Ash Landfill and the Bruce Mansfield Little Blue Impoundment in 

Pennsylvania, the Industrial Excess Landfill in Ohio, the Lincoln Quarry Ash Landfill in Illinois, 
99

the Dolet Hills Ash Ponds in Louisiana, Seminole Flue Gas Desulfurization Landfill in Florida, 

and the Colstrip Ash Ponds in Montana. 

 

5. State Regulatory Responses Have Been Inadequate. 

 State regulatory agencies have done little to respond to contamination from CCR disposal 

sites. Repeated evidence of contamination at monitoring points rarely results in any action 

beyond assessment monitoring to address the problem. For example, of 35 sites that 

contaminated groundwater in the In Harms Way Report,330 monitoring data clearly indicate the 

contamination was moving offsite at 29 of the sites. In other words, the farthest downgradient 

well before the property line was found to be contaminated over baseline concentrations and 

relevant standards at these 29 sites. States had required assessment monitoring in onsite wells in 

response to increases in contamination at 18 of the sites. Off-site monitoring had only occurred 

at 8 sites (and this was not required in most of these instances, but done voluntarily by the 

utilities). Efforts to investigate the source or determine the extent of contamination have only 

occurred at four sites. At no site has the contamination been halted or remediated. 

Even when people are likely to be in harms way, state agencies routinely fail to take 

action to halt or clean up contamination from CCR disposal sites. At 15 of the 35 sites referred 

to above, state and county well records indicate at least five private residential (drinking water) 

wells are within two miles of the site. At 13 of those sites, wells are located in the direction that 

contamination is moving. These include the Joliet #9 site in Illinois, the Cardinal, Gavin, 

Muskingum and Uniontown sites in Ohio, the Northeastern site in Oklahoma, the Fayette site in 

Texas, the Flint Creek site in Arkansas, the Lansing site in Iowa, the Big Stone site in South 

Dakota, the Bruce Mansfield and Hatfield’s Ferry sites in Pennsylvania, and the Rodemacher site 

in Louisiana. All of these sites are also within five miles of at least one downgradient public 

water supply well with a much higher pumping capacity. Among these cases, state agencies 

have sampled off-site drinking water wells only at the Uniontown and Bruce Mansfield sites. 

Contamination of numerous wells has been documented at both of them. 

 Even after contamination is found in off-site drinking water wells, the following 

examples illustrate that regulators have taken decades to act and done little to halt the 

contamination or stop further human exposure until its too late: 

 At the Industrial Excess Landfill in Uniontown, dozens of residential wells were 

contaminated by the use of at least one million tons of industrial coal ash in a sand and 

gravel quarry where solvents and other industrial wastes were disposed in the 1960s and 

70s before the site was closed and eventually became a Superfund NPL site in 1986. 

Court documents establish that coal ash was the only metal-laden waste dumped at this 

site that could be the source of antimony at 52 times the MCL, beryllium at 30 times the 

MCL, cadmium at 53 times the MCL, lead at 46 times the MCL, chromium at 17 times 

the MCL, arsenic at 13 times the MCL, thallium at 6.5 times the MCL and nickel at 22 

times its former MCL in residential wells and monitoring wells. In 1987 USEPA 

required 100 homes west of the site to be provided with free public water. Yet despite 

the OH EPA’s assertion that metal concentrations were rising in contaminant plumes 

                                                       

330 In Harm’s Way. 
100

from the site in the mid 1990s, USEPA determined that this cleanup remedy was 

complete in 2005 without remediating contamination flowing from the landfill to the 

north and south into neighborhoods. Wells as much as 1,000 feet offsite to the north have 

had exceedances of MCLs for cadmium, chromium, lead, selenium, and thallium in 

samples collected from 1997 to 2001. Yet 19 monitoring wells were decommissioned in 

2004, including 8 where exceedances have occurred in residential areas not provided with 

public water. In fact, analysis for metals was stopped at all remaining monitoring wells 

in 2004. Residents in these areas who cannot afford a hook-up fee continue to use private 

wells and face potentially daily exposure to high levels of toxic metals. Since the early 

1990s, high cancer incidence has been reported in neighborhoods immediately to the 

southwest, west and northeast of the landfill.331 

 At the Bruce Mansfield’s massive unlined Little Blue Surface Impoundment, multiple 

drinking water wells have been contaminated with cadmium up to 170 times the MCL, 

lead 120 times the MCL, barium 3 times the MCL, arsenic up to 2.5 times the MCL, and 

other constituents such as boron, chloride, fluoride, sulfate, manganese, and aluminum 

exceeding secondary MCLs and Health Advisories. Pennsylvania Department of 

Environmental Protection (PADEP) and First Energy entered into a settlement agreement 

in 1994 to address groundwater contamination. Since then, PADEP has issued two 

Notices of Violations (NOVs) for fugitive dust and required resampling of 10 wells with 

elevated arsenic. In addition, PADEP permitted an increase in the height of the dam for 

the impoundment in 2006 to accommodate more fly ash and scrubber sludge from the 

Bruce Mansfield Plant. The resulting increase in ash water height has increased head 

(downward) pressure, pushing the groundwater contamination farther offsite and 

resulting in levels of arsenic, antimony, hexavalent chromium, lead, boron, cadmium, 

thallium, selenium, and other constituents in off-site springs and seeps in excess of 

Pennsylvania’s water quality standards. At least 22 private wells have now been 

contaminated above MCLs, SMCLs, and health advisories, and many of the affected 

homes have been purchased by First Energy. To date, PADEP has not required a 

remediation plan or assessed penalties.332

 Since 1962, Midwest Generation has dumped bottom ash and boiler slag from its Joliet 9 

and Joliet 29 Power Plants into an unlined ash landfill in the Lincoln Quarry in Joliet, 

Illinois. Despite the existence of 94 wells within a mile of the Landfill in a setting 

described by Illinois Environmental Protection Agency (IEPA) as “an area with very high 

geologic vulnerability and a high potential for potable well contamination,” in 1996 IEPA 

exempted the landfill from complying with Illinois Class 1 Groundwater Protection 

Standards as long as it maintained a pumping operation to keep groundwater from 

leaving the landfill. The exemption applied relaxed standards for cadmium, boron, 

selenium, and molybdenum in groundwater onsite that allowed cadmium levels up to 52 

times the MCL in this groundwater. The landfill failed to maintain the inward gradient, 

however. Contaminated groundwater began flowing north, west and south out of the 

Main Quarry as noted in the summer of 2002 by IEPA staff and admitted by Midwest 

Generation in October of 2005. In April 2006, Midwest Energy sampled wells to the 

                                                       

331 In Harm’s Way, at133–43. 332 Id. at 161–73. 
101

south of the landfill for boron only and found them contaminated with boron up to 1.5 

mg/L, which is far above natural levels but does not exceed the Illinois groundwater 

standard of 2.0 mg/L. The results indicated contamination had spread as much as 1,000 

feet to the south of the Landfill and led Midwest to buy out or drill deeper wells for 18 

residences. Monitoring data had documented levels of arsenic up to 10 times the MCL, 

boron up to five times the state standard and more than 3 times EPA’s Child Health 

Advisory, molybdenum up to 70 times the LTHA, and dozens of additional exceedances 

of IL groundwater quality standards (AGQS) for copper, barium, sulfate TDS, pH, 

ammonia, chloride, nitrate, sodium and fluoride in monitoring wells on the perimeter of 

the landfill from 2007 to 2009. IEPA finally prepared a draft NOV in August 2009 for 

some 50 of the exceedances of AGQS, but never sent the NOV to Midwest Energy. The 

state has conducted very little, if any, off-site sampling, leaving this task to the discretion 

of the utility. Thus, IEPA has taken no enforcement actions or other significant steps to 

address the substantive contamination that has been flowing offsite in violation of this 

CCW landfill’s operating permit for many years.333 

 Twelve Wells in the hamlet of East Mount Carmel, Indiana that supply drinking water to 

a bait shop, a church and ten trailer homes have been contaminated with boron up to 

twice the USEPA Child HA, manganese 34 times the SMCL and 6 times the LTHA, iron 

23 times the SMCL, and sulfate and TDS nearly twice their SMCLs. The contamination 

is from unlined ash ponds 500-600 feet away on property of Duke Energy’s 3,000 

megawatt Gibson Power Plant. Sodium levels in the wells have been as high as 347 

mg/L in the semipublic well of the church, used by many residents. This is 17 times 

higher than EPA’s health-based Drinking Water Advisory for ingestion of sodium by 

individuals on a salt-restricted diet. Regularly monitored groundwater nearer the ponds 

on the plant property has arsenic levels up to 7 times higher than the MCL and selenium 

levels exceeding the MCL. Discharges from the ash ponds have also contaminated 

Gibson’s 3,400 acre cooling lake with selenium up to 0.013 mg/L, nearly three times the 

federal surface water quality standard or Criterion Continuous Concentration, forcing a 

ban on fishing in this once popular fishing lake. In turn, discharges from the cooling 

water lake to the Cane Ridge Wildlife Area, a unit of the Patoka River National Wildlife 

Refuge, contaminated the water, soil and biota with selenium levels that posed a high 

hazard to wildlife. This forced the US Fish and Wildlife Service to drain and remediate 

the contamination through discing of a wetland nesting area used by the federally 

endangered Least Tern. Fish whole body selenium levels in the wetland were 9-30 

ug/g.334 The safe dietary level of selenium for wildlife is 3.0 ug/g.335 Least Tern eggs 

gathered at the site in 1996 and 2004 contained 3.53-5.48 ug/g of selenium with levels 

rising over time and hatchling mortality was high.336 In 2010, Duke provided a public 

water line to residents in East Mt. Carmel and assisted the USFWS in restoring the 

selenium damaged wetland in 2008. Yet Duke has refused to provide water to residents 

who live near East Mt. Carmel north of the ponds who are complaining about the taste 

and smell of their water. The Indiana Department of Environmental Management has 

                                                       

333 Id. at 41–47 334 USFWS, 2008. 335 See Appendix I. 336 USFWS, 2008. 
102

declined to take any enforcement action, conduct any sampling or otherwise require any 

remedial steps to address the contamination of private wells near the site or the selenium 

contamination in the Cane Ridge Wildlife Area. There have been at least two residents 

with kidney illnesses and complaints of other ailments from residents of the ten trailers 

in East Mt. Carmel who are also blanketed regularly with coal ash dust blowing from the 

near full ash ponds in the summer.337 

 In Colstrip, Montana, a groundwater contaminant plume from two evaporation ponds (the 

closed Stage I and still active Stage II Ponds) of the Colstrip Power Plant contaminated 

private wells in a subdivision. It also contaminated the well for a local Moose Lodge 

1,000 feet away. This well had concentrations of boron at 20 mg/L, more than six times 

the EPA Child HA, sulfate at 6,000 mg/L, twelve times the EPA health-based DWA, and 

TDS at 9,500 mg/L, nineteen times the SMCL. Owners of the plant knew that they were 

contaminating peoples’ wells in the 1980s, but did not make this information publicly 

available until they were forced to replace the Moose Lodge Well in 1998. Residents, a 

number of whom who were made ill from drinking water from the Moose Lodge well, 

filed a lawsuit against the Power Plant in 2003. In 2008 the owners of the Plant (PPL 

Montana) settled with 57 Colstrip residents for $25 million in damages. Another 

contaminant plume from the Effluent Holding Pond (EHP) for Plant Units 3 and 4 has 

now traveled a mile to the south contaminating private property that has since been 

purchased by PPL Montana and also migrated far to the west. Ranchers who own these 

lands filed a suit in 2007 over the damages from the contamination. In February 2010, 22 

years after the contamination of drinking water wells by CCW had become had become a 

demoralizing public health issue in Colstrip, the Montana Department of Environmental 

Quality (MDEQ) proposed an Administrative Order on Consent (AOC) with PPL 

Montana to address the problem. The AOC will remediate CCW contamination at the 

main plant site, the Stage I and II ponds, the Units 3 and 4 EHP and any leaks or spills in 

the attendant pipelines between these units. However, with compliance boundaries and 

timeframes for compliance with remediation objectives unclear, citizens fear the AOC 

could allow Colstrip’s operators to continue to discharge from all three sites indefinitely 

instead of fixing the ponds and complying with the “closed loop” permit originally 

approved for the plant. In the meantime, the Montana Legislature enacted a law in 

2007/2008 that prevents the MDEQ from enacting any regulations setting standards for 

CCW from any new coal plants that might be built in Montana.338 

 

 Despite the substantial and well-documented offsite damage to communities at these five 

sites, it is notable that not one of them is identified as a proven or potential damage case by 

EPA.339 Based on past experience, state agencies are not able to protect public health and the 

environment with respect to CCR disposal. Strong federal regulations are critical to keep CCR 

out of drinking water and surface waters, and ensure the safe disposal of CCR. 

                                                       

337 Out of Control, at19–22; and 2010 discussions of EIP staff with East Mt. Carmel residents. 338 Id. at 31–36. 

339 See 75 Fed. Reg. 35,128, 35,234–35,239 (June 21, 2010).