UNITED STATES ENVIRONMEN TAL 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 RESOURCE S DEFENSE COUNCIL, SOUTHERN ALLIANCE FOR CLEAN ENERGY, SOUT HERN ENVIRONMENTAL LAW CENTER,

PHYSICIANS FOR SOCIAL RESPONSIBILITY

ORCR Docket Environmental Protection Agency

Mailcode: 5305T 1200 Pennsylvania Ave. NW Washington, DC 20460

November 19, 20102 Executive Summary

The U.S Environmental Protection Agency (EPA ) is on the road to resolving a 30-year old question—how to ensure the sa fe disposal of the second larges t industrial waste stream in the

nation under the Resource Conservation and Recove ry 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 disast ers in U.S. history, with houses torn from their foundations and 20-foot ash-bergs still floating in the river, EPA Administrato r Lisa Jackson in January 2009 rightly committed to regulatory action under RCRA.

At issue, however, is the precise regula tory 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 fo r 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 r ecommend standards under subtitle D of RCRA, which were designed fo r nonhazardous waste, which states are under no obligation to adopt, and which ca nnot 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 alternativ e clearly is the only option cons istent with the best available science, and with the law. In these comments we provide EPA with lengthy documentation responsive to the statutory fact ors that EPA must consider under both sections 8002(n) and 3001(b) of RCRA. We address fi rst the eight study f actors 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 re gulatory programs and the substantial documented damage that has occurred throughout the U.S. from mismanaged as h. We also face squa rely 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 Se rious, Pervasive and Mounting

Damage cases (sites with documented groundwat er 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 po pulations, killed scores of livestock, created superfund sites, sickened families and destroyed livelihoods. The damage includes leaks, major spills, and the pervasiv e contamination of underground drinking water3 sources. The contamination involves pollutant s 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 merc ury and selenium. The damage at most of the newly identified sites is largely unm itigated, and it represents presen t 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 ha ve previously shared with the Agency, and which identify an additional 70 sites that meet EP A’s damage criteria. Because our analysis was

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

show that contamination is highly likely at many other locat ions. Although evaluating the damage is one of EPA’s responsibilities in determ ining how to regulate co al ash, the Agency has done very little to seriously inve stigate the problem. If that c ontinues 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 i nhalation of particulates, coal ash contributes to heart disease, cancer, stroke and chronic lower respiratory diseas e. The extremely high risk of cancer from ingestion of arsenic, which is concentrated in the gr oundwater near many ash disposal sites, is a major fact or in EPA’s risk assessment. But our comments demonstrate that this high cancer risks – 1 in 50 at some coal as h sites for people drinking contaminated water- is actually substantially underestimat ed. The leading arsenic experts in the country obs erve the risk is underestimated by a factor of 17.5, through th e use of an outdated ca ncer 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 con centrations 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 thes e waterways, by spills, s eeps, 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 give n the “all clear” sign generations

too soon.



State Regulations are Grossly Deficient in the Majority of States

Our thorough analysis of the st ate regulations reveals that mo st 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. The4 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 re veal that states ha ve not improved their regulations to close these gaps over the last decade. EPA even acknowledges that, based on severe and entrenched state resistance to regu lating ash, the Agency exp ects 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 st ate regulations in 37 states, co mprising 98 per cent of the coal ash generated nationally. Our anal ysis reveals a far grimmer pict ure of state regulatory programs than is contained in EPA’s analyses.

These regulatory failure have left the public exposed to pollution th at is dangerous and illegal. Part 257.3-4 of Subtitle D, which is supp osed 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 narro w exceptions. Our comments show that dozens of ash disposal sites have violated these standards (which are base d on drinking water limits) with little consequence, and without serious corrective action.



Environmental Justice Concerns Are Substantial

The environmental justice implications of EP A’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 in come is lower than the national median. Yet even more striking and disturbing environmen tal justice implications are found when the predicted impact of EPA’s subt itle D option is considered.

Using EPA’s own prediction of which states will not adopt the s ubtitle D guidelines— which states will ignore minimum federal guide lines for coal ash disposal facilities — it is crystal clear that poor communities and co mmunities of color will be significantly disproportionally impacted.

The contrast between the two options is st ark and disturbing. In view of the national disparity found by EPA, a federal co al ash rule that applies equally in all parts of the country is necessary to alleviate the disparate impacts of as h disposal under the present patchwork of state laws. EPA must reject a dispar ate impact on vulnerable populations and promulgate a subtitle C rule, which ensures equal protection under the law fo r 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 el ectric power industry can easily afford the modest compliance costs associated with Schedule C regulation, which will have a negligible effect on operating5 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 w ould result in a one-time rate increase of between 0.5 and 1% in coal depe ndent states like Indi ana, Pennsylvania, and

Ohio.

Unfortunately, EPA has failed to account for th e 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 sp ills 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 wi nd-blown particles from ash dumps.

We agree that responsible r ecycling, especially applicati ons that encapsulate ash in products like cement and wallboard, offer both ec onomic 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 t hose benefits disappear due to th e alleged “stigma” of Schedule C regulation. EPA’s proposal assigne d an annual value of nearly $23 billion to life cycle benefits of recycling, based on assumed reductions in fi ne particle pollution from cement kilns and wallboard plants, and to big energy savings in bo th sectors. Our comments will show that the true value is closer to $1 b illion, 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 r ecycle coal ash: avoiding th e cost of disposal.



Stigma is Not Properly the Basis for EPA’s Decision

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

center of this debate. No evidence has been offe red 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 regulatio ns. It would be contrary to law to base a decision on the unproved, unfounded and irrational fear s 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 sa fety standard.

The data flow in one direction only. Consid ering the factors mandated by Congress, it is unlawful and unreasonable for EPA to choose an opti on will apply to less than half of this immense and highly dangerous waste stream. In light of the best scie ntific data and the applicable law, EPA cannot ignore the contin ued mismanagement of over 70 million tons of toxic coal ash each year. In light of the dead ly dangers it poses to the nation’s health, and particularly to our most vulnerable communitie s, regulation under Subtitle C is required.6 I. INTRODUCTION

On October 16, 2009, a few months shy of th e one-year anniversary of the monumental disaster at Tennessee Valley Authority’s Kings ton Fossil Plant, the U.S. Environmental Protection Agency (EPA) made a wise decision. EP A determined that it must reverse its prior determinations that regulation of coal ash, or coal combustion residues (CCRs), under subtitle C

of the Resource Conservati on 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 haml et, EPA decided that the manageme nt and disposal of coal ash should be regulated under the hazardous waste provi sions of RCRA. In the wake of a disaster that at any other time or season would have ta ken 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 nationa l subtitle D rule, would not be protective.” 2

EPA clearly set forth the rationa le for this decision, citing:

 “the growing record of proven damage cases to groundwater and su rface 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 ha s 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 re gulation was essential on grounds that “recent research indicates that traditional leach procedur es . . . may underestimat e 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 “wit hout 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 (E PA). Draft: Disposal of Coal Co mbustion Residuals From Electric Utilities and CERCLA Hazardous Substance Design ation 72 (Docket ID: EPA‐HQ‐RC RA‐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 alte rnative to the subtitle C regulation EPA had

determined was essential. Afte r the Office of Management and Budget (OMB) spent nearly nine months reshaping EPA’s initial pr oposal, EPA’s decisive charge wa s 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 e qually viable options. Thus, the proposed rule presents the public with two very different altern atives—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 th e 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 RCR A in order to protect human

health and the environment.

II. BACKGROUND

More than 30 years have pa ssed since the Bevill Amendment 7 was enacted in 1980. Despite a clear Congressional mandate to provide re gulation 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 wast es in order to protect human health and the environment. Subtitle C of RCRA regulated h azardous 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 Guid elines and Regulations and Proposal on Identification and Listing.” 9 In these regulations, EPA proposed deferring “applicability of most of the treatment, storage, and disposal standa rds for selected high-volum e, relatively low risk waste categories until information is gathered and assessed to determine how they can best be

6 EPA, Hazardous and Solid Waste Manage ment System; Identification and Listin g 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 hi gh 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 re gulations, and it soli cited 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 subj ect to subtitle C regul ation under RCRA. EPA determined that the “special wastes” should be subject to the RCRA pa rt 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 combus tion 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 a nd 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 pr omulgate 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 provi de 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 inform ation 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 leach ate has been proven, alternatives to cu rrent disposal methods, costs of such alternatives, impact of those alternatives on the use of co al 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 co mplete 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, a nd 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 co mplete 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 es tablished a schedule for EPA to complete the Regulatory Determinations for all coal combus tion 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 utili ties 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 Consen t Decree, EPA published its Regulatory Determination for the first category of wastes a nd 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 regul atory 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/speci al/fossil/regs.htm; SW DA § 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/industri al/special/fossil/volume_1.pdf.

27 58 Fed. Reg. 42,466 (Aug. 16, 1993), http://www.epa.g ov/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/indust rial/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.htm10 • The wastes in this second category anal yzed 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 wast es from the 1993 determination remained exempt though they were similar to th e wastes currently being analyzed. 30 Thus, the “May 2000 Regulatory Determination addressed not only the remaining wastes, but effectively reopened the d ecision on CCRs that went to monofills,”

which were addressed in the 1993 determination. 31

• “Public comments and other analyses... ha ve convinced us that these wastes could pose risks to human health and th e environment if not properly managed,

and there is sufficient evidence that ade quate controls may not be in place.” 32
Information on damage cases indicated a pot ential 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 th is 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 w ould be necessary: if a trend in protective CCR management did not conti nue; if available information indicated actual or potential damage to human h ealth or the environment, adverse environmental effects, or inadequate state or federal regulation; if th e 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 in creased ‘‘risk[s] posed by managing coal combustion solid wastes if levels of mercury or other hazardous constituen ts 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 progres s toward regulation of coal ash. A report from EPA’s Office of the Inspector Genera l 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 year s 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 dama ge 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 si gnificant 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 th reat to human health and the environment. In the 30 years since that Amen dment was passed, EPA’s studies and research have produced a growing body of evidence that overwhelmingly s upport 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 comprehens ive 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 pr omised 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 wast es; (3) the results of an NAS report regarding the adverse hum an health effects of mercury; and (4) “risk posed by managing coal combustion so lid wastes if leve ls 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 ru le, the Agency reexam ines 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. Cl early, however, EPA considers evaluation of the eight factors of section 8002(n) central to the choice among th e regulatory presented in the proposed rule:

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

structure that best addresse s 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 recen t data that have come to light since EPA’s 2000 Final Determination. In section 8002(n), Congress instruct ed 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 im pact of regulation on the use of coal and other resources, and current and potential reuse of co al ash. Reexamination of all eight study factors reveals that regulation of CC Rs under RCRA subtitle C of RCRA is clearly warranted.

A. Analysis of “The Source and Volume s 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 wa ste 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 come s 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 increasingl y risky ways, including in sham reuse projects, 48 in aging, leaking, and unstable impoundments and la ndfills, 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 burn ed 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 Adminsis tration (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 genera ting 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 re quirements, additional NOx control and flue gas desulfurization (FGD) systems for SO 2 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 a nd increased coal burning is es timated 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 tran slates into increased risks associated with disposal, including increased numbers of dange rous hazardous waste dumps, increased volume

of toxics released to the envir onment, 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 T hat 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, EP A estimated that there were approximately 600 active CCR disposal units in total, incl uding 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 res ponse to that need, EPA sent industry-wide Information Collection Requests (ICRs) in Ma rch, April and December of 2009. Based on the ICR responses, EPA now has much more detail ed and accurate information regarding the inventory of surface impoundments operated by the na tion’s electric utilities. The Agency, in fact, received data on 629 surface impoundments.

The doubling of the estimated number of impou ndments is not inconsequential. While the 1999 Report to Congress assumed a 40-year opera ting life for CCR management units, it is clear from the new surface impoundment data that utili ties 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 twi ce 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 es timate 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. Ho wever, in view of EPA’s gross underestimate of the number of surface impoundme nts, 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 accu mulating 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 enviro nment 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 su rface 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 Elect ric Utilities, Database of Survey Responses, available at http://www.epa.gov/osw/nonhaz/industria l/special/fossil/surveys/index.htm.15 these impoundments are unlined a nd over 400 are over 30 years old, in creasing the risk that toxic pollutants such as arsenic and lead will leach into groundwater or near by 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 eith er 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 su ch as the Kingston impoundment, the power industry reported dumping approximately 215 milli on pounds of arsenic, chromium, lead, nickel, selenium, and thallium into landfills and ot her land disposal systems between 2000 and 2009. 62
Although not as dramatic as the Kingston spill, sl ow 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 es tablishing minimum safeguards, much of this pollution eventually makes its way into our drin king water sources, rivers, lakes, and streams.

These numbers are just the tip of the iceber g. Although disposal of these six pollutants has gradually decreased over the past ten years, coal-fired generation ha s 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 combusti on waste, and the toxic pollutants contained in

58 65 Fed. Reg. at 32,214, 32216 (reporting th at 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 Impo undments 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/n ews_reports/documents/OutofControlMountingDamagesFromCoal9AshWasteS ites.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_FI NAL3.pdf (documenting

numerous coal combustion waste landfills that have contam inated 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 La ndfills. 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 foun d in coal combustion waste.

Attachment 3 identifies those plants that re port disposing of the largest volumes of each pollutant between 2000 and 2009 to surface impo undments. At many plants, the amounts dumped into surface impoundments significantly ex ceed 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 f acilities reported depositing more arsenic in coal ash impoundments than Kingston. Between 2000 and 2009, for exampl e, 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 disposin g of 724,000 pounds of chromium in surface impoundments between 2000 and 2009. Bu t 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 Owensvill e, 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. Sixtee n plants reported releasing more lead to surface impoundments than Kingston.

 Nickel. The Gibson, JM Stuart, Ghent (Kentuck y), Cayuga (New York), and Gaston (Alabama) plants reported th e largest releases of nick el 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 repor t 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 regulat ory controls are the

weakest. With the ex ception of Pennsylvania, 67 state programs in the ten largest coal ashproducing are grossly deficient and lack many ba sic requirements for ensuring safe coal ash disposal. The top ten generating states, Pennsyl vania, Texas, Ohio, West Virginia, Kentucky, Indiana, Florida, Georgia, North Carolina and Ne w 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 a nd utilization pr actices” reveals serious and widespread deficiencies in cu rrent state regulatory programs for disposal and reuse of CCRs, which has resulted in the construction and opera tion 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 stat e 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 sta ndards 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 su rface impoundments. Following EPA’s request for comments, we conducted a comprehensive evaluation of the current landscap e of state regulation of CCR disposal. Our analyses identify additi onal significant gaps in state programs, buttress EPA’s data that indicate state programs are inade quate to protect health and the environment, and further demonstrate why regulation under sub title 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 significan t 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, cons idering 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 co mpleted after the 2000 Regulatory Determination detail such continuing substantia l deficiencies, finding that st ate 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 ba sis 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 regulato ry programs of 34 states; both reports found basic safeguards for CCR disposal se riously 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 impoundme nts (both new and existing).

 45 percent of the states surveyed do not re quire post-closure gr oundwater 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 re quire groundwater monito ring at all landfills (both new and existing).

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

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

financial assurance for coal ash landfills.

The 2006 DOE/EPA Report , which reviewed in detail th e regulatory frameworks of 11 states, also documented continuing substant ial 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 m onitoring, leachate collection, closure and postclosure, siting, and financial assuran ce 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 substa ntial percentage of the larg e coal ash-producing states

evaluated failed to mandate one of the most ba sic 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 so lid waste permitting requirements. Alabama

excludes all CCR from its definition of solid waste; thus, solid wa ste permits are not required for CCR disposal. Similarly, Ohio exempts the larg e 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 per cent 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 200 5—over 26 percent of the total CCW generated in the United States that year. The report id entifies an additional three states (Colorado, Maryland, and Utah) that exempt on-site CCR la ndfills from state solid waste permitting requirements. 78 In addition, the report only identified one state (Pe nnsylvania) that required solid waste permits for all su rface impoundments receiving CCR. 79 Based on these exemptions and exclusions, the report concluded that approxi mately 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 lik ely 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 unr egulated, many of the states in which solid waste permits are required for CCR management units do not make manda tory those regulatory controls that are needed to ensure adequa te 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. ar e 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 qua rterly groundwater monitoring fo r 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 impoundment s, 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 l eachate collection system at coal ash surface impoundments. 90

 Only one of the states surveyed require s corrective action for coal ash surface impoundments. 91

 Only one of the states surveyed require s financial assurance for coal ash surface impoundments. 92

 Only three of the states surveyed requ ire 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, floodw ays, 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 major ity of states. Accord ing to a survey by the

Association of State and Terri torial 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 requi re financial assuran ce 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 Ri sk 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 (A STSWMO) 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 per centages may, in fact,

overestimate the number of states th at 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 reve al that the situation is much wo rse than previously understood. Both of EPA’s reports make clear that gross deficiencies in state regulatory author ity 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 note d, 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 fa r from solved. According to the report, at least 40 percent of the landfills and 50 per cent of the surface impound ments 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. Lin er 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 Type s Reported for Surface Impoundments.

Furthermore, the 2006 DOE/EPA Report’s slightly improved incide nce 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 un its and expansions ignores the vast majority

of units at which coal ash continues to be di sposed, 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, ve rtical expansions of existing di sposal 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 itsel f, this figure is actually an underestimation of the amount of potentially exem pt 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 bene ficially reused and 10.5 million tons were dumped into mines in 2008, re presenting 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 fr om regulation (as in Alabama) or excluded by

virtue of its future beneficial reuse.

The 2010 RIA likewise fails to express fully the de ficiencies that plague the current landscape of state CCR disposal re gulation. Of particular signif icance, the report drastically underestimates the inadequacy of state regulations by ignoring exemptions from and opportunities for variance of stat e regulatory requirements and by failing to distinguish between the mandatory requirement of essential safe guards 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 gr oundwater monitoring and engineering control requirements (despite the fact that su ch 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 re quirements. 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 disp osal, and an additional five states leave the question of whether groundwater monitoring at CCR landfills is necessary up to th e 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 distin ction, thereby allowing for gross exaggerations of the scope and effectiveness of state programs.

As EPA’s own reports have revealed, the di scretion given to state regulators and the variances that they subsequently grant may si gnificantly compromise the safety of a waste disposal unit. For example, West Virginia regul ators waived the liner requirement for a leachate collection pond at two facilities, 103 cover requirements at two struct ural fill sites, and allowed the construction of a landfill over an underground mine. 104 Indiana regulators al lowed the use of ash

as a liner and cover at three facilities and wa ived the cover requireme nt 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 th e cover requirements on two FGD sludge ponds. 107 These variances reveal that when stat e 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 regulator y programs of 37 states, looking specifically at whether states have imposed requirements to a ddress: (1) groundwater monitoring; (2) unit liners; (3) leachate collection systems; (4) fina ncial assurance; (5) post-closure monitoring and maintenance; and (6) extent of permitting requi rements—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 re gulatory gaps that currently exist in state programs. (The full an alysis is set forth in Attachment 4 to our comments.) Our conclusion is that these program s 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 St ate Requirements for CCR Disposal

S TATE R EGULATORY
R EQUIREMENT A LL ( NEW AND

EXISTING )

L ANDFILLS A LL ( NEW AND

EXISTING ) S URFACE

I MPOUNDMENTS N EW L ANDFILLS N EW S URFACE
I MPOUNDMENTS

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/A a 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 stat es/15.85% 14 states/3 8.2% 3 states/14.17%

Composite Final Cover 1 state/1.14% 1 st ate/1.14% 1 state/1. 14% 1 state/1.14%

Groundwater Monitoring

(30 years after closure) 5 states/25.64% 1 st ate/1.14% 5 states/2 5.64% 1 state/1.14%

* Number of states out of 37 surveyed with requiremen t/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 manda tory basic safeguards. For example:

 Only 4 states (comprising less than 4 percen t 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 larges t coal ash-generating states in the country have no or nearly no coal ash re gulatory programs. As described above, three25 states—Alabama, New Mexico, and Utah 109 —exempt coal ash completely from regulation as a solid waste, leaving the dispos al of CCR virtually unregulate d. In addition, Ohio excludes virtually all CCR from regulati on by classifying it as “nontoxic” and, therefore, exempt. 110
Texas excludes all coal ash that is disposed of on-site (defined as anyw here within 50 miles of the place of generation) or destin ed for beneficial reuse (the vast majority the state’s CCR) from regulation. 111 In these states, which together gene rate approximately 33.4 million tons of CCR each year (almost a quarter of total CCR generate d 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 ex amined do not require groundwater monitoring for both existing and new CCR landfills. Commenters re viewed whether states required all of their operating landfills (and surface impoundments) to conduct groundwater monitoring, not just

those built after a certain date. Fo r 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 c onstructed without liners and leachate collection systems. When states “grandfather” older wa ste 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 provid e for wholesale exemption from regulation of CCR that is disposed in on-site or in monofills, and anothe r seventeen states leave the deci sion 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 mon itoring 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 dispos al 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 m onitoring is not mandatory at the majority of CCR surface impoundments takes on particular si gnificance in light of EPA’s a ssumption that states without groundwater monitoring requirements for surf ace impoundments are un likely 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 groundwat er 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 monitori ng is mandatory or where regulators have exercised their discretion to require such monitoring, the specific requirements in place are not necessarily protective of h ealth and the environment. For exampl e, all of the states that require groundwater monitoring at CCR landf ills require only that monitoring wells be sampled twice a year; yet semi-annual sampling is insufficiently pr otective. In order to ensure protection of27 groundwater and early detection of any contamina tion as well as understand seasonal variations in sampling results, quarterly sampling must be required.

Table 4. Is Quarterly Monitori ng 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) requ ire 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 even t groundwater monitoring is required at a particular unit: IA, OH, OK

3 states leave monitoring frequency to th e 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/monof ill 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 direc tion of groundwater flow and, thus, the existence and exte nt of contamination originat ing at a CCR disposal unit. However, only a handful of states require the installation and sampling of three downgradient28 wells. 112 Without the ability to properly define groundwater movement and the presence and location of contaminants, a groundwater m onitoring program cannot be effective.

Table 6. Are a Minimum of Three Downgr adient 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 thes e 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) re quire a minimum of three downgradient wells and one upgradient well at CCR la ndfills: 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 Downgr adient 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 ade quate groundwater monito ring 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 la ndfills and only 4 of 37 states require composite liners at all new CCR surface impoundments. Seve n 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 su ch 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 su rface impoundments are even more severe. Twenty-seven of the states th at 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 safeguar d. The lack of adequa te liners at CCR surface impoundments underscores the impo rtance of mandatory groundw ater 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 lin er 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 eliminat ing its effectiveness at leakage prevention.

Table 10. Is a Leachate Collection Sy stem Mandatory for CCR Landfills?*

Yes

12 out of 37 states surveyed

30.21% of total CCR 12 states require a leachate co llection 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 coll ection 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 l eachate 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 Syst em 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 Fu gitive Dust at CCR Landfills and Surface Impoundments.

Operational safeguards at CCR di sposal 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 cove r, but not on a daily basis. Five states allow for variance or waiver of cover requirements, and 18 states ha d 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 meas ures for the control of dust on a daily basis; significant discretion is left in the hands of stat e 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 Scre ening Assessment of the Risks Posed by Coal Combustion Waste Landfills . The screening assessmen t 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 wh ere 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 la ndfills: 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 du st 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 ru n-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 contam inants. Less than half of the states examined32 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 contro ls 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 co ntrols 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 w ith 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, so luble metals in the ash will migrate to the underlying groundwater. Although manda ting 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 inde pendent assessment of state regulation of disposal unit location, EPA’s 2010 RIA includes a synopsis of stat e government restrictions on locating CCR landfills and surface impoundment s for the top 25 coal usage states. 115 The 2010

RIA ’s summary of six categories of location rest rictions—water table, wetlands, floodplains, faulty areas, seismic zones, unstable karst terr ain—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 restrict ed the siting of CCR surface impoundments in wetland areas; 17 states restricted such siting for CCR landf ills. 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 rest ricted locating CCR landfills in fault areas, and eight restricted such siting in se ismic zones. Five states restri cted the siting of CCR surface impoundments in areas of unstable (karst) terrain, and 12 states re stricted 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 assuranc es 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 assu rances for CCR surface impoundments:

LA, MI*, PA, ND

No

33 out of 37 states surveyed

82.34% of total CCR 33 states have no fina ncial 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’ regulat ion 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 fi nal cover for all CCR landfills and surface impoundments include a composite element. Four teen states require le ss 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 clos ed unit. Impermeable covers are especially essential for coal ash landfills and ponds, becau se so many of these units are unlined. Water35 percolating through a closed, unlin ed landfill will facilitate the mi gration 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 co ver 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 impo undments be removed upon closure:

ND, NJ, NY

No requirement

78.71% of total CCR 29 states have no final cover requi rement 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 migrat ing from the disposal unit s. Early detection of contaminated groundwater is necessary to prot ect the health of nearby communities. Such monitoring is essential, once ag ain, 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-clos ure monitoring be at least 30 years because coal ash is not a stable material, a nd 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 fi ve 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 af ter waste placement, and the peak release36 period for CCR landfills is thousands of years. 116 A post-closure monitoring period of at least 50 years is indeed reasonable and necessary. Al most no states, however, require a mandatory monitoring period of at l east 30 years, as shown in the table below.

Table 23. Is 30 Years of Post-Closure Gr oundwater Monitoring Required for CCR

Landfills?

Yes

5 out of 37 states surveyed

25.64% of total CCR 5 states require post-closure groundwat er 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 IIIexempt), 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 groundwat er 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 th e 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 av erage 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 th e nation’s fleet of surface impoundments. The continued operation and expansion of hundr eds of ponds and landfills without liners, leachate collection systems, monitoring and other ba sic safeguards is anot her 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/industria l/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 requireme nts 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 ex empts 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 minimu m 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 characteri zed as potential requirements— standards that might or might not appl y to any particular disposal unit.

The yes/no dichotomy utilized in Appe ndix 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 manage ment 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 stat e 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 ba seline state regulatory requirements and our analysis of such require ments 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 monito ring requirements at CCR landfills, the 2010 RIA

indicates that 31 of 34 states surv eyed require groundwater monitoring. 120 However, this count is over-inclusive to the point of rendering the re gulatory review meaningl ess. Our review of state regulations, on the other hand, revealed th at mandatory groundwater monitoring of all CCR landfills is the exception rather than the nor m (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 overstate s the current level of state regulation. 121 Table 25 presents a side-by-side comparison of the 2010 RIA ’s characterization of state groundwat er monitoring requirements at la ndfills with our review of the states’ requirements. The differe nce 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 anal ysis reveals the many exempti ons and loopholes that allow CCR disposal to take place wit hout 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?

S TATE 2010 RIA E X

. E1 (34-S TATE R EVIEW ) E ARTHJUSTICE 2010 37-S TATE R EVIEW

AL Yes No – CCR excluded from definition of solid waste

AZ No No CO Yes No – on-site disposal exempt a FL Yes No – on-site disposal exempt a

GA Yes No – variance available for monofills b

IA Yes No – variance available

IL Yes Yes IN Yes No – Type III and IV landfills exempt c 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 exempt a MO Yes Yes (but existing units grandfathered) MT Yes No – on-site exempt a 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 exempt b

SC Yes No – certain CCR exempt per TCLP d

SD N/A No – variance available

TN Yes No – variance available TX Yes No – on-site exempt a 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 ex empt existing landfills; 8 states had no requirement; 12 allowed fo r 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 “m onofill” 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 requ ire groundwater monitoring at CCR surface impoundments that is presented in the 2010 RIA is of particular significance given EPA’s40 assumption that “states with groundwater monitori ng requirements at new units, or with some coverage of the units in question, would upgr ade their existing progr ams 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 regu lations 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?

S TATE 2010 RIA E X

. E2 (34-S TATE R EVIEW ) E ARTHJUSTICE 2010 37-S TATE R EVIEW

AL No No

AZ No No CO Yes No – on-site disposal exempt a FL Yes No – on-site disposal exempt a

GA No No

IA No No

IL No Yes b

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 monitori ng 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 gr oundwater 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 Landfills42 The 2010 RIA ’s review of engineering control requirements indicat es 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 com posite liners at all new CCR

landfills. The 2010 RIA again overstates the current level of state regulation by (apparently) including in its count st ates that may require composite lin ers at some units, but not without exception. The table below compares EPA’s ch aracterization 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 Lin ers Are Required for CCR Landfills?

S TATE 2010 RIA E X

. E3 (34-S TATE R EVIEW ) E ARTHJUSTICE 2010 37-S TATE R EVIEW

AL Composite No liner requirement AZ No No liner requirement CO Clay or synthetic No – on-site disposal exempt a FL Composite or double No – on-site disposal exempt a 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 IV b
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 exempt a 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 TCLP c

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 re quire composite liners at all new CCR surface impoundments, whereas our review of state progra ms indicates that only four states require composite liners at such units. Again, EPA mi scharacterizes the base line and inappropriately attributes minimum requirements to states that do not actually require a par ticular 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 requ irements. However, as indicated in the table below, our analysis revealed that 27 of the 34 states re viewed 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 A re Required for CCR Surface Impoundments?

S TATE 2010 RIA E X

. E4 (34-S TATE R EVIEW ) E ARTHJUSTICE 2010 37-S TATE R EVIEW

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 requirements46 e. The Disparity Between EPA’s An alysis of State Regulations and New Analysis by Commenters is Vast.

There are profound implications to the signifi cant 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 de tail in Attachment 4. In the 2010 RIA

, 128 the Agency relies primarily on its analysis of state laws to crea te its lists of engineer ing 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 (purpor tedly representing all 495 plants) and assigns levels of safeguards (e.g., types of liners, m onitoring, leachate collection) on a plant-by-plant basis depending primarily on the Agency’s understand ing 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 Kent ucky state law to require a composite liner (see Table 27, above). However, Kentucky does not require ponds to be lined, a nd thus the attribution of composite liners to all of these ponds is likely in error. It is mo re 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 nationa l 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 a ssessment of the systemic deficiencies in the regulations that apply (or not ) to the enormous universe of operating landfills and surface impoundments. EPA must recalcul ate 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 reli es on the agency’s interpretation of state law. As described in detail below, by misinterpretin g 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 environmen tal benefits to state regulation pursuant to a subtitle D option than is appropriate. This phe nomenon 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 federa l criteria under subtitle D. Under subtitle D, states are not required to adopt the fede ral criteria, and, in fact, EP A 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 iden tity of states th at 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 cost s of the rule) are very simila r under both options, EPA finds substantially lower costs to industry under subtitle D onl y 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 a ssumption 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 a nd enforce the proposed subtitle D standards

and that health and environmen tal benefits will accrue a ccordingly. Thus, assumptions about which states will adopt the subtitle D standards are central to the ultimate

cost/benefit results for the subt itle D option in the RIA.

As discussed above, EPA assumes that a stat e will adopt a subtitle D program based on one factor: whether the state requi res any groundwater monitoring at surface impoundments. (This goal of monitoring is to ensure early warning of poisons in drinking wa ter long before harmful chemicals can reach the tap. Groundwater mon itoring is relatively inexpensive and very effective, if done properly.) EPA examined 37 st ates 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 aquife r, 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 st ringent standards into its subt itle D program. EPA explains:

To model the Subtitle D option, EPA a ssumed that states with groundwater monitoring requirements at new units, or with some coverage of the units in question, would upgrade their existing pr ograms 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 cu rrently regulate units would not change their practices simply because EPA issued national rules.” 132 Thus, if a state has any regulations requiring groundwater monitoring, EP A 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 ba sed 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 e xpected. According to EPA, 48 percent of the coal ash generated in the United Stats is generate d 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 Analysis 133

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 Id aho, Rhode Island, Vermont, and Washington, D.C., these areas are not listed in either subset above.

EPA explains how this benchmark relates to de termining the costs and benefits of the rule as follows: “[g]iven these factors, the percentage of wa ste disposed of in states with some level

133 Rena Steinzor & Michael Patoka, Ctr. for Progre ssive 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 reasonabl e 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 subtit le 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 a bout the current status of state regulation, and as explaine d above, EPA’s analysis of st ate law contains errors and attributes greater regulatory authority to many st ates than they actually have. Based on our own analysis of existing state regula tions, we conclude that EPA has dramatically overestimated the percentage of benefits (and comp liance) under subtitle D. We f ound, 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 si x states, the amount of coal ash generated in the states pred icted 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 Unit ed 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 noncomp liance under subtitle D has tremendous implications for measuring th e 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 guidelin es 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 stat es. Based on our analysis, nine of the nation’s top ten CCR generating states will refuse to adopt the fede ral 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, Mi chigan, 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 thes e 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 redu ce the risks posed by coal ash should, at a minimum, ensure that another catastrophi c spill of deadly magnitude like the one in Kingston will be avoided. This rule will do nothi ng 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 ge ological distribution of benefits bestowed by a subtitle D rule has very signifi cant 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 mism anagement to continue under a “D” regime.

2. The States’ Failure to Enforce Exis ting Subtitle D “Open Dumping”

Guidelines has Resulted in the Pro liferation of Illegal Open Dumps.

The RCRA subtitle D guidelines that apply curre ntly 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 fu ture effectiveness of subtitle D. In fact, the

failure of any state to adopt these guidelines and the con tinuing 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 enfor cement by states, the prognosis for new D guidelines is exceedingly grim. Today’s straightforward ope n dumping standards are routinely violated, yet these blatant violations appear to be wholly ignored by state regulators.

Under RCRA, states must prohibit any solid wa ste management practi ce 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 curr ently 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 statutor y prohibition describe the criteria used to define open dumps. 145 The criteria pertaining to protect ion of surface water and groundwater are particularly relevant to coal ash disposal. In su m, 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 viola tion of the criteria, and examples of

these violations are described below.

a. Open Dumping Established by Groundwater Contamination

The subtitle D guidelines defi ne open dumps as solid waste management facilities that contaminate groundwater: “A facility or practi ce shall not contaminate an underground drinking water source beyond the solid waste boundary or beyond an alternative boundary. . . .” 148 The regulation provides the following de finitions to determine whether a facility meets this standard for constituting an “open dump.” To “contamin ate” 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 eith er an active drinking water suppl y or a potential drinking water supply, defined as any groundwater with le ss 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 th e 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 esta blished by a state or by a court, but only if the state or court “finds that such a change w ould not result in contaminati on 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 en forcement responsibility, as seen by the large number of apparent violations of the open dum ping 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 pr ohibited...” 42 U.S.C. § 6907(a).52  Duke Energy’s Gibson Generati ng Station, Princeton, Indiana : Wells downgradient of

the CCR landfill have shown levels of arse nic exceeding the Appendix I limit of 50
ug/L. 154 The Indiana Department of Environmen tal 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 signifi cantly exceed the A ppendix 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 ground water 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 towa rd 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 arse nic 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/I NHARMSWAY_FINAL3.pdf.53  First Energy’s Bruce Mansfield Power Pl ant, 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 residentia l 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 arseni c, with concentrations as high as 3.4
mg/L. Although Pennsylvania has been involve d 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. Ta ble 29 shows the results of damage reports compiled by Environmental Integrity Proj ect, Earthjustice, and Sierra Club. 168 Forty sites fit the current definition of open dumping—these land fills and impoundments have caused on-site groundwater to exceed Appendix I MCLs. Fifty-f our 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 importa nt 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 statut ory 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 MaximumResultFederalPrimaryMCLDatesExceededExceedancewell(s)AppendixIMCL DatesExceededExceedancewell(s)ARFlintCreekPowerPlantBenton Barium 2.4mg/L 2mg/L 1996 B‐02 1.0mg/L 1996 B‐02Cadmium 0.01mg/L 0.005mg/L 1995 B‐01,B‐04,B‐05 0.01mg/L N/A N/AChromium 0.128mg/L 0.1mg/L 10/28/2009 NE‐01 N/A N/A N/ALead 0.5mg/L 0.015mg/L 1996 B‐02 0.05mg/L 1996 B‐02Selenium 0.152mg/L 0.05mg/L5/2008‐1/2009&1/2010(B‐02);8/2009(NE‐3)B‐02;NE‐3 0.01mg/L5/2008‐1/2009&1/2010(B‐02);8/2009(NE‐3)B‐02;NE‐3Silver 0.2mg/L N/A N/A N/A 0.01mg/L 1996 B‐02ARIndependenceSteamStationIndependence Arsenic 0.016mg/L 0.01mg/L 1990‐1995 C‐409,C‐410 0.05mg/L N/A N/ACadmium 0.006mg/L 0.005mg/L 1990‐1995 C‐410 0.01mg/L N/A N/ALead 0.023mg/L 0.015mg/L 1990‐1995 C‐410 0.05mg/L N/A N/ACTMontvilleGeneratingStationNewLondon Arsenic 0.262mg/L 0.01mg/L 2007‐2009 MW‐1,MW‐6 0.05mg/L 2007‐2009 MW‐1,MW‐6Beryllium 0.0138mg/L 0.004mg/L 2007‐2009 MW‐6 N/A N/A N/ADENRG/IndianRiverSussex Arsenic 1.45mg/L 0.01mg/L 0.05mg/LChromium 0.211mg/L 0.1mg/L N/A N/A N/AThallium 0.0084mg/L 0.002mg/L N/A N/A N/AFLC.D.McIntosh,Jr.PowerPlantPolk Arsenic 0.0165mg/L 0.01mg/L 201029‐S,19‐S,21‐D,W‐9,17‐S0.05mg/L N/A N/AFLOUC/CurtisStantonEnergyCenterPowerPlantOrangeAlpharadiation65.4pCi/L 15pCi/L 2003 N/A N/A N/AFLSeminoleGeneratingStationPutnam Arsenic 0.19mg/L 0.01mg/L 0.05mg/LLead 0.15mg/L 0.015mg/L 0.05mg/LFL BigBendStation Hillsborough Arsenic 0.110mg/L 0.01mg/L 2003 0.05mg/L 2003Thallium 0.016mg/L 0.002mg/L 2003 N/A N/A N/ATable 29.On-site groundwater data exceedingFederal Primary Maximum Contaminant Levels (MCLs) or RCRA open dumpingMCLs.170(Table adapted from “In Harm’s Way”and “Out of Control” damage reports.171)Shaded cells indicate exceedances; blank cells indicate unavailable data17040 C.F.R. § 257, Appendix I.171In Harm’s Way, at 124–31;Out of Control,at 19.55State Facility County Pollutant MaximumResultFederalPrimaryMCLDatesExceededExceedancewell(s)AppendixIMCL DatesExceededExceedancewell(s)IAGeorgeNealStationNorthWoodbury Arsenic 0.218mg/L 0.01mg/L 2001‐2008MW1R,MW3R,MW5R,MW19,0.05mg/L 2001‐2008MW3R,MW4,MW20IAGeorgeNealStationSouthWoodbury Arsenic 0.0839mg/L 0.01mg/L 2000‐2008 MW2,MW10 0.05mg/L 2000‐2008 MW2IALansingPowerStationLansing Arsenic 0.023mg/L 0.01mg/L 2002‐2010 MW11 0.05mg/L N/A N/AIA MarionPlant Williamson Cadmium 0.088mg/L 0.005mg/L 2004‐2009S1,S2,C1,S3,S5,0.01mg/L 2004‐2009 S1,S2,C1ILVenicePowerStationSt.ClairandMadisonArsenic 0.215mg/L 0.01mg/L 1996‐2009MW5,MW6,MW7,MW1,MW4,MW30.05mg/L 1996‐2009MW5,MW6,MW7,MW3Cadmium 0.006mg/L 0.005mg/L 1999 MW1 0.01mg/L N/A N/AILRockyAcresCCBVermillion ArsenicExceedance*0.01mg/L 0.05mg/L N/A N/ABariumExceedance*2mg/L 1mg/LChromiumExceedance*0.1mg/L N/A N/A N/ALeadExceedance*0.015mg/L 0.05mg/L N/A N/AINDukeEnergy/GibsonPowerPlantGibson Arsenic 0.071mg/L 0.01mg/L 0.05mg/LKY MillCreekStation Jefferson Arsenic 0.015mg/L 0.01mg/L 1994‐1995MW‐2,PW‐1,PW‐0.05mg/L N/A N/AKYShawneeFossilPlantMcCracken Arsenic 0.012mg/L 0.01mg/L 2008 D‐77*** 0.05mg/L N/A N/ASelenium 0.087mg/L 0.05mg/L 2008 D‐74A,D‐74B 0.01mg/L 2008 D‐74A,D‐74BLABigCajun2PowerPlantPointeCoupeeParishSelenium 1.32mg/L 0.05mg/L 1994‐1999MW‐85B,MW‐85C,MW‐85D,MW‐85E0.01mg/L 1994‐1999MW‐85B,MW‐85C,MW‐85D,MW‐85ELADoletHillsPowerStationDeSotoParish Arsenic 0.0156mg/L 0.01mg/L 12/2009 OW‐33 0.05mg/L N/A N/ALead 0.023mg/L 0.015mg/L 8/2009,12/2009 OW‐36 0.05mg/L N/A N/ASelenium 0.173mg/L 0.05mg/L 2008 MW‐2A 0.01mg/L 2008 MW‐2ALARodemacherPowerStationRapidesParish Arsenic 0.0575mg/L 0.01mg/L 2009W‐4,W‐15,W‐17,W‐18,W‐21,W‐10.05mg/L 2009W‐4,W‐15,W‐17,W‐18Lead 0.0209mg/L 0.015mg/L 2009 W‐9,W‐10 0.05mg/L N/A N/ATable 29 (cont.)On-site groundwater data exceeding Federal Primary Maximum Contaminant Levels (MCLs) or RCRA opendumping 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 downgradient56State Facility County Pollutant MaximumResultFederalPrimaryMCLDatesExceededExceedancewell(s)AppendixIMCL DatesExceededExceedancewell(s)MDMirant/BrandywineCoalAshLandfillPrinceGeorge's Cadmium 0.5mg/L 0.005mg/L B10 0.01mg/L B10MIKarn/WeadockGeneratingFacilityBay Arsenic 0.997mg/L 0.01mg/L 0.05mg/LNCDanRiverSteamStationRockingham Lead 0.0392mg/L 0.015mg/L 1998‐2008 0.05mg/L N/A N/ANC Duke/BelewsCreek Stokes Arsenic 0.073mg/L 0.01mg/L 2007 OB‐4 0.05mg/L 2007 OB‐4Nitrate 158mg/L 10mg/L 10mg/LSelenium 0.02mg/L 0.05mg/L N/A N/A 0.01mg/LNCFullCircle/Swi ftNash Arsenic 0.068mg/L 0.01mg/L 2004 0.05mg/L 2004Lead 0.093mg/L 0.015mg/L 2004 0.05mg/L 2004NCProgress/CapeFearSteamPlantChatham Chromium 0.1m/L 0.1mg/L N/A N/A N/ALead 0.0533mg/L 0.015mg/L 0.05mg/LNCProgress/LeeSteamPlantWayne Arsenic 0.440mg/L 0.01mg/L 0.05mg/LLead 0.047mg/L 0.015mg/L 0.05mg/L N/A N/ANCProgress/SuttonSteamPlantNewHanover Arsenic 0.29mg/L 0.01mg/L 0.05mg/LNDAntelopeValleyStationMercer Arsenic0.035mg/L**0.01mg/L 1984‐2010MP‐12A,MP‐13B,MP‐220.05mg/L N/A N/AND LelandOldsStation Mercer Arsenic 0.0789mg/L 0.01mg/L 1982‐200922‐ADB,22‐ABC,22‐0.05mg/L 1982‐2009 22‐ABCLead 0.0716mg/L 0.015mg/L 2006 22‐DCC 0.05mg/L 2006 22‐DCCNE SheldonStation Lancaster Selenium 0.0728mg/L 0.05mg/L 2002‐2009 MW‐3 0.01mg/L 2002‐2009 MW‐3NVNVEnergy/ReidGardenerGeneratingStationClark Arsenic 0.73mg/L 0.01mg/L 2007 14wells 0.05mg/L 2007 14wellsChromium 0.11mg/L 0.1mg/L 2007 1well N/A N/A N/ANitrate 13mg/L 10mg/L 2007 1well 10mg/L 2007 1wellSelenium 0.15mg/L 0.05mg/L 2007 12wells 0.01mg/L 2007 12wellsTable 29 (cont.)Onsite groundwater data exceeding Federal Primary Maximum Contaminant Levels(MCLs) or RCRA open 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 downgradient57State Facility County Pollutant MaximumResultFederalPrimaryMCLDatesExceededExceedancewell(s)AppendixIMCL DatesExceededExceedancewell(s)NYCayugaGenerationPlantTompkins Arsenic 0.019mg/L 0.01mg/L 2007‐2008 17wells 0.05mg/L N/A N/ASelenium 0.76mg/L 0.05mg/L 2007‐2008 MAGDXX‐8106 0.01mg/L 2007‐2008 8wellsOH CardinalPlant Jefferson Arsenic 0.1mg/L 0.01mg/L 2004 S‐2*** 0.05mg/L 2004 S‐2***OH GavinPowerPlant GalliaAlphaParticles1,497pCi/L 15pCi/L 2007 9801 N/A N/A N/AArsenic 0.057mg/L 0.01mg/L 1994‐20087wellsincluding941280.05mg/L 1994‐20087wellsincluding94128Barium 13.8mg/L 2mg/L 2008 94126*** 1.0mg/L 2008 94126***Cadmium 0.007mg/L 0.005mg/L 2008 9801 0.01mg/L N/A N/ALead 0.051mg/L 0.015mg/L 2008 9801 0.05mg/L 2008 9801OHMuskingumRiverPlantWashigntonAlphaParticles128pCi/L 15pCi/L 2005‐2008 M‐9612,OB‐2 N/A N/A N/AOKNortheasternStationOologah Arsenic 0.094mg/L 0.01mg/L 2008‐2009MW2S,MW2D,MW8S,MW8D0.05mg/L 2008‐2009 MW2D,MW8SBarium 8.69mg/L 2mg/L 2008‐2009 MW7D 1mg/L 2008‐2009 MW7DChromium 0.225mg/L 0.1mg/L 2008‐2009MW2S,MW2D,MW8S,MW7DN/A N/A N/ALead 0.208mg/L 0.015mg/L 2008‐2009MW1D,MW2S,MW2D,MW3S,MW6D,0.05mg/L 2008‐2009MW6D,MW7D,MW8SThallium 0.003mg/L 0.002mg/L 2008‐2009 MW1S,MW2S N/A N/A N/AOR BoardmanPlant Morrow Selenium 0.019mg/L 0.01mg/L 1987‐1989 053,120 0.05mg/L N/A N/APABruceMansfieldPowerStationBeaver Arsenic 0.036mg/L 0.01mg/L 2006‐2010 14wells 0.05mg/L N/A N/AFluoride 6.4mg/L 4mg/L 1994‐2006 1well 4.0mg/L 1994‐2006 1wellLead 2.69mg/L 0.015mg/L 1996 2wells 0.05mg/L 1996 2wellsPAHatfield'sFerryPowerStationGreene Arsenic 3.419mg/L(total ) 0.01mg/L 2005‐2010MW‐213A,MW‐217A,MW‐218A0.05mg/L 2005‐2010MW‐213A,MW‐217A,MW‐218AChromium 0.104mg/L 0.1mg/L 2009 MW‐217A N/A N/A N/ATable 29 (cont.)Onsite groundwater data exceeding Federal Primary Maximum Contaminant Levels (MCLs) or RCRA opendumping 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 downgradient58State Facility County Pollutant MaximumResultFederalPrimaryMCLDatesExceededExceedancewell(s)AppendixIMCL DatesExceededExceedancewell(s)PAAllegheny/MitchellPowerStationWashington Arsenic 0.02mg/L 0.01mg/L 2007 GW‐4,GW‐5 0.05mg/L N/A N/APAOrion/FernValleyLandfillAllegheny Arsenic 0.363mg/L 0.01mg/L 1995‐2002 N/A 0.05mg/L 1995‐2002PARRI/SewardIndiana Antimony 0.1mg/L 0.006mg/L 2007‐2008 MW‐7 N/A N/A N/AArsenic 0.02mg/L 0.01mg/L 2007‐2008 MW‐6R 0.05mg/L N/A N/ACadmium 0.041mg/L 0.005mg/L 2007‐2008MW‐5R,MW‐6R,0.01mg/L 2007‐2008MW‐5R,MW‐6R,Chromium 0.33mg/L 0.1mg/L 2007‐2008 MW‐8R N/A N/A N/ALead 0.05mg/L 0.015mg/L 2007‐2008 MW‐8R 0.05mg/L 2007‐2008 MW‐8RSeleniumExceedance*0.05mg/L 2007‐2008MW‐6R,MW‐7R,0.01mg/L 2007‐2008MW‐6R,MW‐7R,PAUGI/HunlockPowerStationLuzerne Arsenic 0.119mg/L 0.01mg/L 1999‐2009MW‐5,MW‐7,MW‐60.05mg/L 1999‐2009MW‐5,MW‐7,MW‐6SCGraingerGeneratingStationHorry Arsenic 0.917mg/L 0.01mg/L 2000 4R,3 0.05mg/L 2000 4R,3SCSCE&G/UrquhartStationAiken ArsenicExceedance*0.01mg/L 0.05mg/L N/A N/ASCSCE&G/WatereeStationRichland Arsenic 0.18mg/L 0.01mg/L 0.05mg/LSDBigStonePowerPlantGrant Arsenic 0.1322mg/L 0.01mg/L 2007‐2009 11totalwells 0.05mg/L 2007‐2008 BC‐101,BC‐4Lead 0.1086mg/L 0.015mg/L 2007‐2008BC‐1,BC‐101,BC‐5,0.05mg/L 2007 BC‐101TNCumberlandSteamPlantStewart Arsenic 0.022mg/L 0.01mg/L 2008‐200993‐2,93‐1,93‐2R,93‐40.05mg/L N/A N/ASelenium 0.15mg/L 0.05mg/L 2008‐2009 93‐2 0.01mg/L 2008‐2009 93‐2TN GallatinFossilPlant Sumner Beryllium 0.023mg/L 0.004mg/L 2008‐2009 GAF‐19R N/A N/A N/ACadmium 0.0064mg/L 0.005mg/L 2008‐2009 GAF‐19R 0.01mg/L N/A N/ATable 29 (cont.)Onsite groundwater data exceeding Federal Primary Maximum Contaminant Levels (MCLs) or RCRA opendumping 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 downgradient59State Facility County Pollutant MaximumResultFederalPrimaryMCLDatesExceededExceedancewell(s)AppendixIMCL DatesExceededExceedancewell(s)TNJohnsonvilleFossilPlantHumphreys Arsenic 0.570mg/L 0.01mg/L1986,1988,1991‐1994C6,C1,(AreaA);SS16,SS13(Areas2&3)0.05mg/L1986,1988,1991‐1994C6,C1,(AreaA);SS16,SS13(Areas2&3)Cadmium 0.260mg/L 0.005mg/L1986,1988,1991‐1994C5,C1,(AreaA);SS16,SS13(Areas2&3)0.01mg/L1986,1988,1991‐1994C5,C1,(AreaA);SS16,SS13(Areas2&3)Chromium 0.16mg/L 0.1mg/L1986,1988,1991‐1994ActiveAshDisposalIslandN/A N/A N/ALead 0.39mg/L 0.015mg/L1986,1988,1991‐1994C5,C1,(AreaA);SS16,SS13(Areas2&3)0.05mg/L1986,1988,1991‐1994C5,C1,(AreaA);SS16,SS13(Areas2&3)TNTrans‐AshCCWLandfillBenton Arsenic 0.27mg/L 0.01mg/L 0.05mg/LTN ChromiumExceedance*0.1mg/L N/A N/A N/ATN LeadExceedance*0.015mg/L 0.05mg/L N/A N/ATN MercuryExceedance*0.002mg/L 2009MW‐5,GibsonWells0.002mg/L 2009MW‐5,GibsonWellsTNJohnSevierFossilPlantHawkins Cadmium 0.0068mg/L 0.005mg/L 2008‐2009 0.01mg/L N/A N/ATXFayettePowerProject(SamSeymour)Fayette Arsenic 0.023mg/L 0.01mg/L 2009 C2L‐412 0.05mg/L N/A N/ASelenium 0.0746mg/L 0.05mg/L 2009 RP‐67 0.01mg/L 2009 RP‐67WVAEP/MitchellGeneratingStationMarshall AntimonyExceedance*0.006mg/L 2008 N/A N/A N/AArsenicExceedance*0.01mg/L 2005‐2006 0.05mg/L N/A N/ATable 29 (cont.)On-site groundwater data exceeding Federal Primary Maximum Contaminant Levels(MCLs) or RCRA open 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 downgradientb. Open Dump By Violating the Clean Water Act

A second criterion defines open open dumps as facilities th at discharge pollutants “in violation of the requirements of the National Pollutant Discha rge 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 NPDE S permit or by discharging in violation of a NPDES permit. These include the following:

 Duke Energy’s Gibson Generati ng Station, Princeton, Indiana : Discharges of wastewater

with selenium concentrations as hi gh 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 Com bustion Waste Landfill, Elrama, Pennsylvania : It
appears that over 90% of the water discha rging 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 cad mium are apparently unauthorized by the
site’s NPDES permit. 177

 American Electric Power’s John Amos Po wer Plant, Winfield, West Virginia : Discharges
violate NPDES permit limits for selenium, contri buting 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 a bove, 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 im poundment 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 potentia l rating of “high” or “significant. ” Inspection reports assessing the structural integrity of the im poundments 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 environmen tal impacts. The mechanisms built into the law include state-enforced prohibi tions of unpermitted surface water discharges and groundwater

contamination. Yet the risk is not diminished if states consistently fa il to enforce the basic requirements of Subtitle D. The lists above show that many landfills and surface impoundments are discharging selenium and othe r pollutants in violation of NPDE S permits and that seeps from surface impoundments and landfills di scharge without abatement. Many more sites are leaching arsenic, fluoride, lead, and other contaminants into aquifers that ar e potentially or actively supplying drinking water. These prohibited “open dumps” illustrate that st ates are not enforcing current federal guidelines. The present guide lines are few and straightforward. It is

unreasonable to believe that states will do a mu ch 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/industria l/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/industria l/special/fossil/surveys2/index.htm.

182 CHA, Final Report: Assessment of Dam Safety, Coal Combustion Surface Impoundment (Task 3), American Electric Power, Big Sandy Genera ting Station, Louisa, Kentucky (Feb. 17, 2010), available at http://www.epa.gov/osw/nonhaz/industria l/special/fossil/surveys2/index.htm.62 3. Proliferation of Disposal Units Co nstructed and Operated without the Basic Safeguards Necessary to Prevent and Detect the Release of

Contaminants.

The failure of states to re quire basic safeguards has resu lted in the proliferation of disposal units constructed and ope rated without the basic safegu ards 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 mon itoring 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 a nd 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 (le ss than a third of the operating disposal units) conducted by the Electric Power Research Inst itute, 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 groundwate r monitoring, but the data do little to change the percentage of units with basic controls since the new permitted units constitute less than 5 percen t of the universe of operat ing landfills and impoundments. 185

There is no reason to expect a dramatic im provement in the over all picture of basic controls at coal ash disposal sites. As de scribed 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, appr oximately 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 groundwat er 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 ot her 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 EP A’s information request letters.

C. “The Potential Danger to Human Heal th and the Environment From the Disposal and Reuse of CCRs” Reveals th e Need for Subtitle C Regulation.

Most fundamentally under RCRA and in k eeping 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 ma ndate, EPA must consider the toxi city of the waste and evaluate

183 65 Fed. Reg. 32,216.

184 2010 Risk Assessment, at 1-2 (citing Electric Powe r Research Institute (EPRI) Comanagement Survey).

185 EPA & U.S. Dep’t of En ergy, 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 de monstrating that the threat to human health and the environment posed by CCR fr om both current and past disposal and reuse is significant and increasing. Th is section reviews the data rev ealing rising toxicity, increasing waste volume, documented high risk to pe ople and ecosystems, rampant historic mismanagement, and careless and dangerous re use 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) t echnologies at coal-fired power plan ts to reduce mercury emissions and other pollutants will be responsible for signi ficant changes in the chemical and physical properties of CCRs. These air pollu tion control technologies include the use of selective catalytic reduction for post-combustion NOx removal, electrostatic precipitators or fabric fi lters for particulate capture, sorb ent injection for increasi ng mercury control, and fl ue 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 polluta nts, but it will also result in the transfer of the pollutants from the flue gas to the CCRs.

Changes in APC technologies al so will result in a greater am ount of residue generated for each unit of electricity produced a nd an overall increase in the tota l content of mercury and other hazardous air pollutants (e.g., arsenic, selenium, chromium) in fl y 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 interact ion with the broader class of CCRs, including pyritic coal rejects from coal wa shing or high-sulf ur coal rejects. 187 Emerging APC technologies are also likely to create new APC residues, su ch as spray dryer ash or spent sorbents from mercury or post-combustion NOx control technology.

While EPA predicts far greater use of such t echnologies in the years to come, the agency

has also documented that the cha nge is well underway. Since coal -fired power plants represent the largest source of anth ropogenic 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/es101 6558 ( 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., Contr ol of Mercury Emissions from Coal-Fir ed Electric Utility Boilers: Interim Report(EPA-600/R01-109) (Dec. 2001) (prepared for the Of fi ce 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, Of fi ce 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 Of fi ce, Mercury Control Technologies at Co al-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 us e 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 la ter 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 alread y has ACI in use for mercury control and that there are contracts in place to install mercury co ntrols at over 60 GW of additional coal-fired generation. 192

Coal-fired power plants are also ra pidly installing scrubbers to reduce SO 2 emissions. Both wet and dry FGD processes are us ed, 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 Intersta te Rule (CAIR), over half of the U.S. coalfi red 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 res ponse to CAIR requireme nts with a doubling or tripling in the am ount 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 put s a premium on protective regulation.

a. More Accurate Testing Confirms CCR Toxicity.

Since 2006, ORD has published three reports th at examine the fate of mercury and other heavy metals in air pollution cont rol residues to ensure “that em issions 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 result s 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/documen ts/2010/04/15/docu ment_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/ 600r 09151/600r09151.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 reject ion of an older leach test, the toxicity characteristic leaching procedure (TCLP). Histor ically, 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 poi nted letter to EPA Administrator Carol Browner, criticizing EP A’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 recommenda tion 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 in accuracy 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 beca use 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 ac idic 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 conducte d a review of available methods, sought Science Advisory Board input, and ultimately sele cted the tiered assessm ent 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. Th is 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 at http://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 Br owner, Administrator, EPA, Re: “Waste Leachability: The Need for Review of Current Ag ency Procedures” (Feb. 26, 1 999) (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 re sults rarely exceeded the toxicity characteristic for metals (the level at which a waste is deemed a “hazardous” waste 207 ), the LEAF test confirmed that CCRs can leach metals, such as arsenic, barium, chromium and selenium, at

levels that far exceed federal thresholds estab lished for hazardous waste. Specifically, EPA found, at the highest leach le vel for particular CCRs:

 Arsenic, a potent carcinogen, leached from fly ash at a concentration 1,800 times the federal safe drinking water st andard, more than 3 times th e threshold established for hazardous waste and over 76 times the level of previous leach tests (TCLP); 208

 Antimony, which damages the heart, lung and st omach, also leached from fly ash at a concentration 1,800 times the federal safe dri nking 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 h azardous 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 th e EPA’s 1999 Report to Congress 213 and test data produced by the utility industry 214 have never revealed such high concentrations of pollutants because they used single point leach tests that could not mi mic 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 Wa stes 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/indust rial/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 Ma nagement 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 charact erize 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 confirmati on 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 environmen t. 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 90 th percentile “the management of CCRs in unlined or clay-lined waste management units (WMUs) result in risks greater than the ri sk criteria of 10 -5 for excess cancer risk to humans or an HQ greater than 1 for

noncancer effects to both human and ecological receptors which are th e criteria generally used in EPA’s listing determination procedure.” 220

More specifically, as EPA indicates in its preamble:

 90 th 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 tim es the target hazard quotient); 221

 90 th percentile risk estimates, for arsenic, antimony and molybdenum that leak from unlined landfills, reveal indi vidual 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 re sults 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 90 th and 50 th percentile estimates for lined and unlined landfills and surface impoundments are summar ized in the preamble and set forth in the risk assessment. These risks are from a long lis t 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 ta rget levels for listing, as EPA admits. Congress mandates that EPA consider these risk s 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 sub title C is clear. In this s ection 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 asse ssment, the assessment neverthele ss 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 asso ciated with arsenic ingestion emerged as a principal factor in the risk assessm ent’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 th e human risk assessment were (1) ingestion of groundwater contaminated by migration of a haza rdous CCR constituent, and (2) consumption of fish caught by recreational fisher man 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] mana ging certain types of CCR may present lifetime

cancer risks above EPA’s ra nge 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 impact ed by arsenic arising from surface impoundments.

However, the risk assessment document reach ed its conclusions regarding the arsenicassociated CCR risks by relyi ng on a cancer slope factor (CSF) for arsenic ingestion of 1.5 (mg/kg-d) -1 obtained from EPA’s IRIS da tabase. That slope factor, wh ich 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 b een acknowledged by multiple offices of EPA and the broad scientific community to yield an unde restimate of the actual cancer risk posed by inorganic arsenic ingestion, which in addition to skin cancer is r ecognized as a cause of cancer of the lung and bladder in humans. For exampl e, in 2000 - 2001, EPA’s Office of Water used independent estimates of arsenic induced lung an d 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 ma ximum 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 e xplicit indication that use of the IRIS CSF for arsenic would substantially und erestimate the cancer risk. By contrast, the “Regulatory Impact Analysis For EPA’s Pr oposed RCRA Regulation Of Coal Combustion Residues (CCR) Generated by the El ectric Utility Industry” (hereafte r “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 repres ent 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 Counc il report “Arsenic in Drinking Water: 2001 Update,” which yielded a combined CSF fo r lung and bladder cancer of 26 (mg/kg-d) -1

. 229
Further support for use of a revised CSF for i norganic arsenic ingestion arises from another recent document produced by the EPA National Cent er for Environmental Assessment entitled, “Toxicological Review of I norganic 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 po licy implications, this externally peer-reviewed final draft derived an oral CSF of 25.7 (mg/kg-d) -1

.

Medical toxicologist Dr. Michael Kosnett 231 along with three scient ists, Allan H. Smith, MD. PhD, 232 Kenneth P. Cantor, 233 and Marie Vahter, 234 who together served on the Subcommittee on Arsenic in Drinking Water of th e Natural Research Counc il (for either or both of the 1999 and 2001 reports) draw the following c onclusion 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 asse ssment’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 scenar io by a factor of 17.3 (i.e. 26 ÷ 1.5). Accordingly, a revision of the risk asse ssment 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 he alth risk of CCR disposal, use of the alternative CSF may elevate the risk associated with some additional disposal scenarios, such as ingesti on of fish impacted by certa in 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 Envir onmental 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/We bPeople/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 heal th 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 fundame ntal 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 leve l 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 ri sk posed by lead in its risk assessment. It is essential for EPA’s assessment to accurately refl ect 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 multip le pathways of exposure, EPA further

underestimated risks. For certain coal ash toxi cants, threats to human health are multiplied due to the ability of the toxicant to reach a nd 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 ar senic. Arsenic readily leaches into water, potentially allowing arsenic to contaminate groundwater and, eventually, drinking water supplies. Contaminated drinking water is a prim ary 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 st udies also have linked arsenic ingestion to

cardiovascular disease and diabetes mellitus. I ngestion of lower levels of arsenic can cause nausea and vomiting, decreased pr oduction of red and white blood cells, and cardiovascular

236 See also Letter from Mary A. Fox, PhD, MPH, Assistant Pr ofessor 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 exposu re 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 fo r Toxic Substances and Diseas e 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 bod y 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 abso rbed 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 th e 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 mout h 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, beha vior and learning problems su ch as hyperactivity, slowed growth, hearing problems and headaches. High le vels of lead in children can result in swelling of the brain, kidney disease, and possi ble death. Adults are also susceptible to harm from lead, including reproductive pr oblems 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 th at 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, br ain, and testes, and expos ure 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 thalliu m 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 vi a one pathway, but less so via another. For example, cadmium if ingested is not likely to caus e harm, as oral ingestion results in low levels of absorption. The lungs, howev er, readily absorb cadmium, so inhalation exposure results in much higher levels of absorption. This makes e xposure to coal ash dust a risk factor for kidney disease, obstructive lung diseases such as em physema, 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 individua lly. 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; ba rium, cadmium and mercury all have adverse effects on the kidney. Where seve ral 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 chan ce of increased risk to health. Yet the EPA has

not taken into account in its 2010 Risk Assessment the possibility of syne rgistic 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 Depa rtment of Health Policy and Ma nagement 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 co mbustion 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 fu lly for risks posed by fugitive dust associated with CCR disposal. Several reviewers, including one peer reviewer, cr iticized EPA’s draft 2009 Health and Ecological Risk Assessme nt 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) (Docke t ID No. EPA-HQ-RCRA-2009-0640-0142).74 for levels of particulate matter in the air. EP A concluded “there is not only a possibility, but a strong likelihood that dry-handling [of coal as h] 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 fug itive dust from coal ash to lead to significant

human health risks.

Further, EPA found that protective daily practic es 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 a pplied 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 ma nagement leads to a PM10 concentration almost an order of magnitude above the NAAQS....[It is even] “uncertain whether weekly controls would ha ve 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 no t require daily cover to control fugitive dust at coal ash landfills and mo st 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. Sp ecifically, the methodol ogy 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 erosi on, drop operations, and entrained road dust from equipment travel on unpaved landfil l 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 deficien cies are discussed in de tail in a report by GeoHydro, Inc. attached to these comments as Appe ndix J. The report’s fi ndings 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 st ate regulatory controls, infra

.75 significantly from most existing CCR landfill s, 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 numeric ally incapable of simulati ng conditions that are known to exist at and downgradient of many CCR disposal units. Those limitations were such that migration, and therefore exposur e and risk, from simulated sites would inherently be under-computed.

4. Contaminated groundwater can flow furthe r than one mile from the CCR disposal unit. The large volumes of disposed wast es, 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 all uvial 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 ge nerating 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 Huma n Receptors, Understates

Potential Harm.

The 2010 Risk Assessment calculated risks on th e 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 a nd industry commenters ha ve 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 mu st be based upon site-s pecific evaluations, not generic assumptions.

The reasons why contaminated groundwater from CCR disposal units may not flow directly toward an adja cent 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 silt76 and clay overbank and channel-fill materi als. In such valleys, the channels tend to align with the axis of the vall ey, 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 a ffected by river stages (high and low water).

2. Anthropogenic activities such as pump ing centers related to industrial, residential or agricultural water supp ly systems are capable of modifying the direction of groundwater flow ov er wide areas. For example, Depending on the location of any well fi elds that supply the public system, the system itself may have the potential to draw CCR contaminants into the wells, exposing the served popul ation through the supposedly safe

water system.

3. Mounding of groundwater and/or leacha te under landfills, utility cooling water ponds and surface impoundments often create radial flow paths from the disposal facility th at are capable of drivi ng contaminated groundwater in directions contrary to topogr aphic, down-to-the river flow.

A more detailed discussion of the factors affec ting 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 a ssess the risks posed by retired CCR disposal units. To its credit, EPA acknowledges th e 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 l onger for landfills (hundreds to thousands of years) than for surface impoundment s (most less than 100 years).” 245 Thus, EPA must account in its risk assessment for the reality that cont aminant 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 populati on 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 cont inuing and increasing loading of contaminants from hundreds of retired ponds and landfills, the ri sk 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 fu lly for surface water discharges from unlined and poorly managed surface impoundments a nd 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 landf ills and power plants. 247 In addition to di rect 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 di scharge toxic pollutants

such as selenium from coal combustion wa ste 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 th at releasing selenium into rivers and lakes can decimate fish populations and ma ke the surviving species unsafe to eat. 251 For example, EPA’s 2007 Coal Combustion Waste Da mage Case Assessments includes Belews Lake, North Carolina, where the discharge of se lenium from a power plant wiped out 16 of 20 fish species in the 1980s. 252

The limited monitoring data availabl e show that the electric util ity industry also release other pollutants at levels that exceed drinking water st andards 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 ru les 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 su rface waters via direct discharges and leaks in disposal units).

249 See Attachment 18 (selenium chart). Selenium is a toxic po llutant 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 freshwa ter 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 r ecreational purposes, recognizing th at arsenic becomes increasingly concentrated as it moves up the food chain, whic h 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 dr inking 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 landf ills. 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 indus try discharges enormous quant ities of toxic pollution that poses a significant risk to public health and the en vironment into our waterways each year.

i. EPA Must Consider Discharges to Surface Water in the

Risk Assessment.

While EPA did evaluate risk s posed by groundwater transpor t to surface waters, EPA claims that the risks from direct discharges to surface waters is outside the scope of the risk

assessment because these di scharges 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 Wate r Act discharges are not per se excluded from the scope of

RCRA. 261 Finally, EPA itself includes sites that ha ve caused damage to the environment from direct discharge to surface wa ters in its 2007 report documenting coal combustion waste damage

cases. 262

First, the section 8002(n) criter ia direct EPA to evaluate th e (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 hu man 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 re sult of a direct discharg e to surface waters. The disposal of these wastes in surface impoundment s and landfills creates discharges to surface waters. In other words, direct discharges are di rectly related to, and a co mponent 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 A ssessment, 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 EP A 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 Assessme nts, 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 investigati on test if a scientific study de monstrates there is documented evidence of another type of damage to huma n health or the environment (e.g., ecological damage).” 265

In keeping with this observation, EPA has iden tified 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 combusti on 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 eviden ce 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 fa iling to exclude th e exposure pathway documented in these damage cases from the risk a ssessment. The statute directs EPA to consider all potential danger to human health and the e nvironment 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 he ld that citizens may not enforce violations of 40 C.F.R. § 257.3-3(a), EPA has expr essly 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 causi ng such a violation could simultaneously be subject to penalties unde r the CWA and a citizen suit to enjoin ‘open dumping’ under RCRA. Today’s amendment eliminat es this double liability. However, since the open dump inventory classificat ion 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 di scharges are somehow outside the scope of

review because the risk assessment was undertak en pursuant to RCRA is without merit. EPA must consider all potential da nger from coal combustion waste disposal and all damage from leachate when determining whether S ubtitle C regulations are warranted. 272 Danger and damage to public health and the environment caused by Cl ean 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 fu lly. Importantly, EPA’s risk assessment found substantial risk from coal combustion waste dispos al sites to aquatic ecosystems and the wildlife they support from groundwater transport to surface water and sediment pathway. 273 EPA evaluated ecological risks for bot h landfills and ponds, based on pr edicted exposures of wildlife and vegetations to toxic metals that migrate from groundwater to surf ace 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 ecol ogical 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 l eak boron into su rface waters at concentrations up to 2,375times higher than levels estimated to be safe for aquatic

life. 277 Even clay-lined impoundments w ill 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 A ssessment, at 4-26.

274 Id.

275 Id.

276 EPA, 2010 Risk A ssessment, 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 con centrations will be more than 10 times higher. 279

 Toxic metals can also be embedded in th e 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 exp ected to contaminate sediments at levels 58 and 11 times above no risk thresholds respectively. 281

Table 31: Summary of 90 th Percentile Full-Scale CCW Ecological Risk Results: Groundwater to Surface Water Pathway, Aquatic Receptors 282

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 90 th Percentile Full-Scale CCW Ecological Risk Results: Groundwater to Surface Water Pathway, Sediment Receptors 283

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 Assessm ent, 4-31 tbl. 4-23.82 iii. Significant Risks to Human Health

In addition to these ecosystem impacts, EP A’s risk assessment evaluated risks to human health from the consumption of fish contamin ated 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 (H Q of 2) impoundments managing conventional CCW, and also exhibited excess can cer risks just above 1 in 100,000 for arsenic in unlined (3 in 100,000) and cl ay-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 th e 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 se rious adverse impacts to human health and the environment from coal combustion waste dispos al from this pathway. The risk assessment needs to account for these real world examples.

Table 33: Summary of EPA Proven Damage Ca ses: Groundwater Transport to Surface

Water

Site Name/ Location Reported Damage

PEPCO MD Generating Sta tion- 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 DamageCases: Groundwater Transport to Surface WaterSite Name/ LocationReported DamageConsumer Energy-Karn/Weadock GeneratingFacility, MichiganElevated levels of arsenic and boron in groundwater. Contamination flowing into Saginaw Lake and Bay.UGI Development Company, UGI HunlockPower Station, PennsylvaniaContaminated groundwater leaching intoSusquehanna River. Groundwater concentrations of arsenic, iron,and manganese significantly above MCL.South Carolina Electric and Gas -WatereeStation, South CarolinaArsenic in groundwater 18 times MCL. Fish in Wateree river have elevated levels of arsenic in tissueTVA- John Sevier Fossil Plant, TennesseeCadmium in groundwater exceeds MCL which discharges into Holston River and its tributaries. High levelsof boron and strontium also found in banks of Holston River.NRG Energy- Indian River Generating Station,DelawareOn-site groundwater exceeds MCL for arsenic, chromium, and thallium. Off-site surface water in IslandCreek exceeds EPA's freshwater CCC foraquatic life for aluminum and iron.Tampa Electric Company-Big Bend Station,FloridaArsenic in on-site groundwater has been measured at 11 times the federal primary MCL. Many otherpollutants and trace elements have also been measured at levels far above secondary Drinking WaterStandards and Florida Groundwater Clean-up Target LevelsMirant MD Ash Management LLC,Brandywine Coal Ash Landfill, MarylandMDE has documented cadmium levels that exceed theprimary MCL, and levelsof, aluminum, chlorides,iron, manganese, sulfates, and total dissolved solids atlevels that exceed secondary MCLs. Cadmium andlead levels also exceed water quality criteria regularly inMataponi Creek downstream of the discharges fromthis Landfill.RRI Energy- Seward Generating Station,PennsylvaniaSurface water quality monitoring downstream from the ash sites contained 27 exceedances of PennsylvaniaWater Quality Criteria for Fish and Aquatic Life, including exceedances for aluminum, nickel, and zinc.SCANA- Urquhart Station, South CarolinaSampling of a replacement well positioned near a wetlandshowed that arsenic was greater than the 0.01mg/L standard. This result indicates that groundwater adjacent to the wetland is contaminated.84Southern Illinois Power Cooperative-MarionPlant , IllinoisGroundwater contains high levels of cadmium, boron, and iron. Saline Creek is a discharge point forShallow Groundwater.Louisville Gas and Electric -Mill Creek Plant,KentuckyGroundwater contaminated with arsenic 1.5 times the MCL and TDS 2.5 times Secondary MCL. Eventuallyflows into Ohio River.TVA-Shawnee Fossil Plant, Kentucky Arsenic, boron, and selenium contaminated groundwater feeds into Ohio River via an on-site creek.CLECO Power-LLC Dolet Hills Power Station,LouisianaSelenium has been reported at the CCW landfill monitoring wells at 3.5 times the MCL in a groundwaterzone that discharges to the surface water.Allegheny Energy Supply Company- Hatfield'sFerry Power Station, PennsylvaniaFrom 1984 until 2001, CCW leachate and shallow groundwater that contacted CCW was directed, withoutany treatment, to an earthen impoundment, and then discharged into anunnamed tributary of Little WhiteleyCreek. The CCW leachate discharges caused exceedances in NPDES limits for aluminum, manganese, andthallium.TVA- Johnsonville Fossil Plant, TennesseeTVA data show that groundwater on the island contains high levels of arsenic, aluminum, boron, cadmium,chromium, iron, lead, manganese, molybdenum, sulfate, and total dissolved solids (TDS) far above federalMaximum Contaminant Levels (MCLs), Secondary MCLs(SMCLs), and federal health advisory levels.This groundwater discharges into the Tennessee River.NRG Energy/ Montville Power LLC, MontvilleGenerating Station, Connecticut"In the northeastern part of the Montville Station,average concentrations (2007–2009) of arsenic in onegroundwater Monitoring Well, NRG-MW-6, were morethan 20 times the federal Maximum ContaminantLevel (MCL). Average concentrations of beryllium also exceeded the MCL in this well."CLECO Power-LLC Rodemacher PowerStation, Louisiana"Groundwater monitoring wells at compliance boundaries for a a CCW landfill, seven ponds, and a coal pileat the Rodemacher Station have been contaminated with arsenic upto 5.75 times the federal MaximumContaminant Level (MCL) and lead exceeding the MCL."85First Energy-Bruce Mansfield Power PlantLittle Blue Run Surface Impoundment, WestVirginiaDischarges to surface water have caused exceedancesof Pennsylvania Water Quality Criteria for arsenic atleast eight times in three locations between 2003 and 2010. There have been numerous off-site surface watercontaminations including exceedances of arsenic, boron, cadmium, lead, and selenium.Otter Tail Power- Big Stone Power Plant, SouthDakota"Exceedances have been measured in downgradient groundwater for arsenic at more than 13 times thefederal MCL at 0.1322 mg/L, boron up to 34 times the federal Lifetime Health Advisory Level at 204 mg/L,lead up to 7 times the federal Action Level at 0.1086mg/L, strontium up to 1.5 times the federal LifetimeHealth Advisory at 6.03 mg/L, chloride up to 13 times the federal Secondary MCL (SMCL) at 3,330 mg/L,and sulfate up to 112 times the state standard and 224 times the federal SMCL at 56,000 mg/L."Lower Colorado River Authority-Fayette PowerProject, Texas"Groundwater sampling at LCRA’s Fayette Power Project(FPP) has found levels of selenium, cobalt, andmolybdenum exceeding Texas Protective Contamination Levels (PCLs) and federal MCLs."v. Direct Discharge to Surface Water

The potential danger to human health and the en vironment 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 h ealth 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 conne ction to surface waters. As discussed previously, power plants routinely di scharge 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 prove n 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. 288 The 44-acre unlined Basin Electric Power Company W.J. Neal Station Surface Impoundment in North Dakota, disc harged 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 re sulting in a temporary degradation of public

waters.” 291

In addition to EPA’s damage cases, our anal ysis has identified at least eleven damage cases that are, at least in part, the result of direct di scharges 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/ LocationReported DamageMirant MD Ash Management LLCBrandywine Coal Ash Landfill, MarylandIn 2008 the Maryland Department of the Environmentreported exceedances ofwater quality criteria foraquatic life in surface water.RRI Energy-Seward Generating Station,PennsylvaniaSurface water quality monitoringdownstream from the ash sitescontained 27 exceedances ofPennsylvania Water Quality Criteria for Fish and Aquatic Life, including exceedances for aluminum,nickel, and zinc. In addition, Outfall 12 which flows directly from the coal ash pile.Orion Power Holdings, Inc.-Fern ValleyCoal Combustion Waste Landfill,PennsylvaniaSurface water downstream from the plant has higher levels of arsenic, boron, chloride, sulfate, and TDScompared to surface water upstream.This deteriorating surface water quality has caused a decrease inmean species diversity and equitability.RRI Energy-Portland Generating Station'sBangor Quarry Ash Disposal Site,PennsylvaniaSurface water discharges have caused concentrations of boron, cadmium, hexavalent chromium, andselenium in Brushy Meadow Creek to exceed Pennsylvania’s Water Quality Criteria ContinuousConcentration for Fish and Aquatic Life.Trans-Ash, Inc.-CCW Landfill, TennesseeTennessee Department of Environment and Conservation issued a notice of violation for releasing CCWinto an unnamed tributary to Cypress Creek. TVA has acknowledged that leachate from this sitedischarges to surface water on the eastern side of the landfill.American Electric Power- John Amos PlantLittle Scary Creek Creek Fly AshImpoundment, West VirginiaFish taken from the Little Scary Creek in 2006 hadselenium concentrations in their tissue that was 7times higher than EPA’s proposed criterion.American Electric Power- MitchellGenerating Station, West VirginiaEffluent discharges from the Mitchell Generating Station have caused exceedances in the selenium limitsin Connor Run Creek. Data from the West Virginia Department of Environmental Protection stated thatthe Connor Run Creek fish had an average tissue selenium concentration of 24.4mg/kg.AES-Cayuga Coal Ash Disposal Landfill,New YorkThe CCW leachate prior to being discharged from the pond contains levels of arsenic, boron, cadmiumand other metals that exceed federal and/or state groundwater standards.American Electric Power- General JamesM. Gavin Power PlantIn April and July 2009 exceedances of the daily maximum concentration for boron were reported fromOutfall 007. In addition Outfall 001 discharges from a decommissioned fly ash pond into Stingy Runthat eventually goes into the Ohio River.88American Electric Power-MuskingumRiver Plant, OhioOutfall 002 discharges ash pond effluent directly into the Muskingum River. Leachate from the pondhas concentrations of arsenic above the MCL and sulfate above the SMCL.First Energy-Bruce Mansfield Power PlantLittle Blue Run Surface Impoundment,West VirginiaDischarges to surface water have caused exceedances of Pennsylvania Water Quality Criteria for arsenicat least eight times in three locations between 2003 and 2010. There have been numerous off-sitesurface water contaminations including exceedances ofarsenic, boron, cadmium, lead, and selenium.In summary, electric utility industry discharg es 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 pr otect 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 di rect discharges to surface waters. EPA’s risk

assessment found that coal combustion waste di sposal creates significant risks for the environment and public health from groundwater tr ansport to surface water. The risks posed by direct discharges are likely to be much hi gher, 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 pot ential 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, Congre ss required EPA to take into account the “documented cases in which danger to human hea lth 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 pot ential and proven “damage” cases. While these comments will show that the number of proven a nd potential damage cases, as de fined 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), C ongress required EPA to asse ss 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 in terest 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 ci tizens and EPA, respectively, to bring suit in the event that solid waste handling, stor age, 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 prev ention of harm (i.e. in danger, not damage).

Thus to file suit under either se ction, 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 thre at is near-term and invol ves 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 “d anger” 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 drama tic 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 e ndangered 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 Club 297 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 practi ces are contaminating ground and surface waters with toxic pollution. CCR damage cas es 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 migr ating off-site and poses a gr ave threat to drinking water sources and our rivers, lakes, and streams. This contamination has real consequences for Americans, and many citizens living near CCR di sposal 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 Un ited 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/s ites/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/defau lt/files/files/report-in-harms-way.pdf [H ereinafter EIP, Earthjustice, and Sierra Club are collectively referred to as “EIP,” and th e 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, systema tic evaluation of sites damaged by CCR. It has relied from the beginnin g 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 co mmissioned by the organizat ions representing the utility industry in Washington, DC—the Utili ties Solid Waste Activities Group (USWAG) and Edison Electric Institute (EE I)—to identify “documented cases” of damage. The 1988 RTC

states:

To supplement these two major studies, in 1987 EPA conducted a litera ture review of all readily-available sources, which revealed only two additional case studies on proven damages occurring in 1980 and 1981. The Agen cy 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 th e second study, by Dames and Moore, “identified seven cases that presented a potential dange r 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 util ity waste disposal were inconclusive” 301 and Dames and Moore “concluded that none of these cases repr esented a “documented” case of such danger.” 302
Thus they rejected sites such as Chisman Cree k, 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 Rive r, 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 s ites in its Superfund Program’s CERCLA Information System. 304 From this review, EPA identif ied a total of six proven damage sites and two potential damage sites in the 1999 RTC. 305

Despite identifying only minimal damage thr ough industry submissions, and rather than using its authority to conduct its own investigations, EPA looke d to environmental groups and

citizens to obtain additional information. Ofte n, 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 fo llow-up. The evidentiar y 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 previ ous regulatory determination on

another Bevill waste. 306 As a result of this unreasonabl y high threshold, out of 59 proposed damage cases that citizen/envir onmental 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 ot her 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 Dama ge Case Assessment that it did not evaluate at all some 44

of the 135 total sites —nearly a third of the site s 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 veri fy claims of contamin ation or inspect any sites, the Agency’s 2007 iden tification of damage sites 309 rejected sites like the Cardinal Fly Ash Reservoirs in Ohio; of that site EPA said that

[t]he State has ground water monito ring 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. Th erefore, 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) firs t reported exceedances of MCLs in the groundwater surrounding these larg e ash ponds to the Ohio Envi ronmental Protection Agency (OH EPA) in 1993 and reported st atistically significant increa ses 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 as h related constituents” had entered the groundwater surroun ding the two ponds with statisti cally significant increases of

arsenic and a number of ot her parameters in 2004. 312 In fact, an OH EPA report concluded that the ash ponds were in direct contact with th e underlying groundwater in 2006, and AEP itself

admitted in 2007 that continued inundation of th e aquifer by water from one of the ponds would, in the short term, have “a significant in fluence 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 Availab ility 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 Lifeti me Health Advisory, and boron at 4 times EPA’s Child Health Advisory. Not surprisi ngly, monitoring of groundwater leaving the pond

area showed that arsenic had been measur ed 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 (the re are no MCLs for molybdenum or boron). The Tidd-Dale subdivision 2,000 feet downstream from these ponds re lies 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 th is site. Therefore, this site is categorized as a case without documen ted evidence of pr oven or potential damage to human health or the environment. 315

In contrast, the examination of this site in the second EIP Re port 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 r eadings as high as 1,497 pCi/L (99.8 tim es 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 ha ve been exceeding MCLs (or the LTHA for molybdenum) since the mid-1990s. The contaminati on appears to be spread ing 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 landf ill and in the direction of contaminant flow. NPDES permit violations for the landfill and th e closed fly ash/bottom ash pond have also occurred for copper, boron, and sulfate. Acute t oxicity 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 ta ken 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 th at 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 sh allow 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 th ere 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 th e 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 caus tic 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. Ye t even though EPA acknowledged this spill as a damage case in its 1993 Regulatory Determinati on, 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 comme nt on the Notice of Data Availability (NODA) for RCRA Docket No. EPA-HQ-RCRA-2006-0796 a nd 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 re ports that document substantial evidence of damage to groundwater, surface water, drinking wate r 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 fo r 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 responsibilit y under the statute to consider damage from coal ash sites.

2. CCR Damage Cases Are Not An Ar tifact of Past Practices

An examination of the 137 damage cases shows that more than 90 percent of the cases involving wet storage or disposal ar e occurring at operati ng surface impoundments

and two-thirds of the cases involving dry disposal are o ccurring at ope rating 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 Anal ysis, are involved in these damage cases. 324
The conditions that spawned these damage cas es—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 un lined gravel pits are unfortunately 21 st century disposal practices. Even worse, the absen ce of monitoring at many of these sites means that there are likely many more CCR-contamin ated sites of which regulators and nearby residents are simply unaware.

3. Concentrations of Toxic Contam inants 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 shallo w 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 persis tent 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 (hereina fter 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 concentra tions 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 MC L for selenium has been exceeded at 26 sites with the highest concen tration 37 times the MCL. The MCL for cadmium has been exceeded at 28 sites, with a maximum con centration 170 times the MCL, and 10 sites exceed the cadmium MCL by more than 10 times.

Other highly toxic but less fr equently monitored appendix VIII parameters have exceeded their MCLs by multiple times in groundwater co ntaminated by CCR. Mercury has exceeding the MCL at four sites by as much as 450 times, ant imony 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. Ni ckel 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 para meter, 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 VI II metals at CCR damage sites.

327 Id. All measurements quoted below are contained in the Appendix.96 There are many other contaminants in CCR th at leach into the groundwater and surface waters at CCR sites at harmful levels, causing si gnificant 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, n early one-quarter of recognized damage cases, have boron concentrat ions in groundwater exceeding EPA’s Child Health Advisory of 3.0 mg/L. Boron concentrati ons have exceeded this standard by more than 10 times at 5 sites with the highest concentr ation, 520 mg/L, exceeding the standard by 173 times. Many more damage sites are exceeding stat e 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 ni ne 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 stan dard if more states required monitoring for this parameter. Other metals exceeding their LTHAs include strontium and zinc each at four sites and copper exceed ing 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) fo r sodium of 20 mg/L, set to pr otect people on saltrestricted diets, has been exceeded in contaminated groundwater at seven sites with concentrations more than 10 times this standard at every site a nd a maximum recorded value of 40,000 mg/L, which is 2,000 times the standard. Sodium would also li kely be found at many mo re sites if monitoring was routinely required for this metal.

Very few states require monitoring for ra dioactivity 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 th e maximum concentration, 1,497 pCi/L, exceeding the standard by

almost 100 times.

Although no federal standards have been set fo r cobalt and vanadium and most sites are not monitored for these metals, these constituen ts have exceeded groundwater standards set by

several states at CCR-contaminated sites. He alth-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 Contaminan t 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 consump tion and that far exceed human health-based standards. The LTHA for manganese,0.3 mg/L, has b een exceeded at 31 sites examined by EIP. These exceedances are often significant. Manga nese exceeded the LTHA by more than 10 times

in at least 11 of thos e sites, with a maximum concentrati on 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 exceeda nces for non-Appendix VIII parameters at CCR damage

sites.97 times. EIP found this standard exceeded at 31 da mage sites with at least three sites exceeding the DWA by more than 10 times. If EPA’s a ssessments 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 m oving, 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 onl y two sites where migra tion of contaminants moved a significant distance in groundwater fr om the waste boundary, traveling 250 feet from the landfill at the Port Washington Plant in Wisc onsin 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 monitori ng 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 c ontamination remains undetected.

Examples of off-site migration documented by EIP include: 329

 At the Flint Creek CCW landfill in Arka nsas, 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 leach ate seep discharges beyond the landfill into a

stream that drains into unm onitored 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 pl ume 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 m easured steadily rising selenium and sulfate concentrations up to 1.5 times the MCL for sele nium and 1.4 times the SMCL for sulfate as

of 2008.

 At the Gavin Plant in Ohio underlying groundwat er is contaminated with alpha activity, arsenic, barium, cadmium, and lead, all ex ceeding 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 Kent ucky, arsenic levels have consis tently 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 c ontaminant plume moving rapidly offsite from a

coal ash landfill exceeds the ar senic 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 concentra tions also exceeded the MCL. Vanadium concentrations in the plume have been measur ed 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 sampli ng 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 landf ill 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 SMCL s 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 samp led at the plant’s CCW sites which have operated since at least 1986, but 2009 sampling f ound 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 concen tration of 3,100 mg/L (6.2 times the SMCL), a boron concentration of 4 mg/L (exceeding th e 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 th e shallow underlying groundwater in the same round of sampling had a chloride concentratio n 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 ha s traveled beyond 1,000 f eet from the waste boundary at eight sites. These include the Bo ardman Plant ash disposal area in Oregon, Hatsfield’s Ferry Ash Landfill and the Bru ce Mansfield Little Blue Impoundment in Pennsylvania, the Industrial Exce ss Landfill in Ohio, the Lincoln Qu arry Ash Landfill in Illinois,99 the Dolet Hills Ash Ponds in Louisiana, Seminol e 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 contamina tion from CCR disposal sites. Repeated evidence of contamination at monitoring points rarely results in any action beyond assessment monitoring to address the prob lem. 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 site s. In other words, the farthest downgradient well before the property line was found to be contaminated over baselin e concentrations and

relevant standards at these 29 site s. States had required assessme nt monitoring in onsite wells in response to increases in contamin ation 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 cont amination 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 t hose sites, wells are located in the direction that contamination is moving. These include the Joli et #9 site in Illinois, the Cardinal, Gavin, Muskingum and Uniontown sites in Ohio, the North eastern site in Oklahoma , the Fayette site in Texas, the Flint Creek site in Arkansas, the Lans ing site in Iowa, the Bi g Stone site in South Dakota, the Bruce Mansfield and Hatfield’s Ferry sites in Pennsylvania, and the Rodemacher site

in Louisiana. All of these site s 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 o ff-site drinking water wells, the following examples illustrate that regulators have take n 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 Uniont own, dozens of residential wells were contaminated by the use of at least one milli on tons of industrial coal ash in a sand and gravel quarry where solvents and other indus trial 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, thalli um at 6.5 times the MCL and nickel at 22

times its former MCL in residential we lls and monitoring wells. In 1987 USEPA required 100 homes west of the site to be pr ovided with free public water. Yet despite

the OH EPA’s assertion that metal concentra tions 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 contam ination flowing from the landfill to the north and south into neighborhoods. Wells as mu ch 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 occurre d in residential areas not provided with public water. In fact, analysis for metals was stopped at all rema ining monitoring wells

in 2004. Residents in these areas who cannot a fford a hook-up fee continue to use private wells and face potentially daily e xposure to high levels of t oxic metals. Since the early 1990s, high cancer incidence has been reporte d 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 contaminat ed 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 Advi sories. Pennsylvania Department of Environmental Protection (PADEP) and First Energy entered into a settlement agreement in 1994 to address groundwater contamina tion. 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 permitte d an increase in the he ight of the dam for the impoundment in 2006 to accommodate more fly ash and scrubber sludge from the Bruce Mansfield Plant. The resulting increa se in ash water height has increased head (downward) pressure, pushing the groundwat er contamination farther offsite and resulting in levels of arsenic, antimon y, 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 heal th advisories, and ma ny of the affected homes have been purchased by First Ener gy. To date, PADEP has not required a remediation plan or assessed penalties. 332

 Since 1962, Midwest Generation ha s dumped bottom ash and boile r 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 Environm ental Protection Agency (IEPA) as “an area with very high geologic vulnerability and a high potential fo r potable well contamin ation,” in 1996 IEPA exempted the landfill from complying w ith Illinois Class 1 Groundwater Protection Standards as long as it maintained a pu mping operation to keep groundwater from leaving the landfill. The exemption app lied 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 landf ill failed to maintain the inward gradient, however. Contaminated groundwater began fl owing 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 re sults indicated contamination had spread as much as 1,000

feet to the south of the La ndfill 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 a nd more than 3 times EPA’s Child Health Advisory, molybdenum up to 70 times the LT HA, and dozens of additional exceedances of IL groundwater quality sta ndards (AGQS) for copper, barium, sulfate TDS, pH, ammonia, chloride, nitrate, sodium and fluor ide 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 ne ver sent the NOV to Midwest Energy. The state has conducted very little, if any, off-site sampling, leavin g this task to the discretion of the utility. Thus, IEPA ha s taken no enforcement actions or other significant steps to

address the substantive contamin ation that has been flowing o ffsite in violation of this CCW landfill’s operating permit for many years. 333

 Twelve Wells in the hamlet of East Mount Ca rmel, Indiana that supply drinking water to a bait shop, a church and ten trailer homes ha ve 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 Wa ter Advisory for ingestion of sodium by

individuals on a salt-restricte d 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 Cr iterion 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 biot a 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 se lenium levels in the wetland were 9-30 ug/g. 334 The safe dietary level of se lenium for wildlife is 3.0 ug/g. 335 Least Tern eggs gathered at the site in 1996 and 2004 contai ned 3.53-5.48 ug/g of selenium with levels rising over time and hatc hling 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 ha s refused to provide water to residents

who live near East Mt. Carmel north of th e ponds who are complain ing about the taste

and smell of their water. The Indiana De partment 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, c onduct 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 a ilments from residents of the ten trailers

in East Mt. Carmel who are also blanketed re gularly with coal ash dust blowing from the near full ash ponds in the summer. 337

 In Colstrip, Montana, a groundwater contamin ant 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 c ontaminated 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, twel ve 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 reside nts for $25 million in damages. Another contaminant plume from the Effluent Hold ing Pond (EHP) for Plant Units 3 and 4 has

now traveled a mile to the south contamin ating 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 ove r the damages from the contam ination. In February 2010, 22 years after the contamination of drinking wa ter wells by CCW had become had become a demoralizing public health issue in Colstri p, the Montana Department of Environmental Quality (MDEQ) proposed an Administra tive 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, c itizens 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 enacti ng any regulations se tting standards for CCW from any new coal plants that might be built in Montana. 338

Despite the substantial and well-documented of fsite damage to communities at these five sites, it is notable that not one of them is id entified as a proven or potential damage case by

EPA. 339 Based on past experience, state agencies ar e 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, a nd ensure the safe disposal of CCR.

337 Out of Control, at19–22; and 2010 discussions of EIP staff w ith East Mt. Carmel residents.

338 Id . at 31–36.

339 See 75 Fed. Reg. 35,128, 35,234–35,239 (June 21, 2010).