1



# Comment Summary and Response Document

Hazardous and Solid Waste Management System;

Identification and Listing of Special Wastes; Disposal of

Coal Combustion Residuals from Electric Utilities;

Proposed Rule

(Docket # EPA

- HQ

- RCRA

- 2009

- 0640)

Volume 1 4


# State Authorities, Programs and Regulations

December 20142

Background

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

the management of coal combustion residuals (CCRs) which was published in the Federal

Register on June 21, 2010. This proposal, under the Resource Conservation and Recovery Act

(RCRA), addressed the risks from disposal of CCRs generated from the combustion of coal at

electric utilities and from independent power producers. Two regulatory options were proposed.

Under the first option, EPA proposed to reverse its August 1993 Bevill Regulatory and May

2000 Bevill Regulatory Determinations regarding CCR and to list CCRs as special wastes

subject to hazardous waste regulations under subtitle C of RCRA when destined for disposal in

landfill or surface impoundments. Under the second option, EPA proposed to leave the Bevill

determination in place and regulate the disposal of CCR as non

- hazardous solid waste under

subtitle D of RCRA by issuing minimum nat ional criteria. Both options would require

composite liners, groundwater monitoring, structural stability requirements, corrective action,

and closure/post closure care.

EPA also solicited comments on all aspects of both proposed options. The Agency

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

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

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

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

EPA

- HQ

- RCRA

- 2009

- 0640, Docket ID No. EPA

- HQ

- RCRA

- 2011

- 0392, and Docket ID No.

EPA

- HQ

- RCRA

- 2012

- 0028. All documents in these dockets are a vailable at

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

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

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

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

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

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

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

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

(202) 566

– 1744, and the telephone number for the OSWER Docket is 202

– 566

– 0276.3

After reviewing all the comments and additional data received, EPA is promulgating a

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

addresses the risks from structural failures of CCR surface impoundments, gr oundwater

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

and fugitive dust emissions.

The Agency has developed seventeen volumes of summarizing comments on major

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

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

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

submitted on the proposed subtitle C rule tha t are also applicable to the final rule are addressed

in the comment and response documents.

Volume Topic

1 General Comments

2 RCRA Subtitle D Regulatory Approach (Legal issues/Self

- implementing

Design/Reliance on Certifications by an Independent Profe ssional

Engineer/Recordkeeping, State Submissions, Posting to the

Internet/Finance Assurance/Alternative Approaches)

3 Scope and Purpose/Effective Dates/Applicability/Off

- site

Disposal/Definitions

4 Location Restrictions

5 Design Criteria: Liners and Leachate Collection Systems

6 Design Criteria: Structural Integrity

7 Operating Criteria: Endangered species/Surface water/Inspections/Run

- on

Run

- off

8 Operating Criteria: Air Criteria

9 Groundwater and Corrective Action

10 Closure and Post

- Closure Care

11 Additional Comments including Overfills/ Harmonization with ELG.

12 Beneficial Use4

Volume Topic

13 Risk Assessment

14 State Authorities, Programs and Regulations

15 Compendium of Damage Cases

16 Regulatory Impact Analysis (RIA)

17 EPA’s Assessment Program



# CommentWorks ® 

# Issue Report

Initiative: Coal Combustion Residuals Proposed Rule 

### Client Name: Agency 

### Sort Order: Group Number Selected Options 

### : Include Commenter Include Organization
Include Additional Commenters Include Additional Commenter Organizations Include Commenter Type
Include Classification Include Category
Include Task Include Flags
Include Comments
Preview as HTML Single File



### Number of Issues: 1

Section 7.1

- State Regulations or Performance Standards: EPA solicits detailed info on state regulatory authorities and/or regulatory structure for CCRs; particularly requirements applicable to older existing units (35153, 35157, 35224); detailed info on5

current CCR management practices of state programs, including other than state waste authorities (35152, 35224); details on state CCR regulations (35157) Total Number of Submissions: 270 Total Number of Comments: 395



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 00369

- 1 

### Organization 1 

### : Texas Aggregates and Concrete Association (TACA) 

### Commenter 1 : Michael K. Stewart Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.1 

### Comment Excerpt Text: It is our understanding that the EPA is giving consideration to regulating fly ash under Subtitle C of the Resource Conservation Recovery Act (RCRA) or under Subtitle D of RCRA and is also evaluating whether to requir e closure of all active surface impoundments managing this type of material. Given these two options, TACA contends that the best management alternative for regulating fly ash would be under Subtitle D of RCRA.

Most states, including Texas, have develope d programs that successfully regulate the management and disposal of fly ash. As stated earlier, on May 22, 2000 EPA issued a determination that state regulatory programs were adequate to ensure proper management and disposal of fly ash. In addition, as re cently as 2005 the EPA and the U.S. Department of Energy determined that such state regulatory programs have become even more stringent. TACA strongly believes that the regulatory program effective in Texas will provide that fly ash is managed and disposed in a manner that is protective of public health and the environment.

Response: The Agency acknowledges and appreciates this comment. Because EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to

t hat issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirem ents, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs an d is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 01833

- 2 

### Organization 1 

### : Sierra Club Oklahoma 

### Commenter 1 : Jody Harlan Commenter Type: Advocacy Group Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due:6



### Comment Excerpt Text: State regulation and enforcement are notoriously weak and subject to influence by profit

motivated corporations with local connections. Oklahoma agencies insist the others are

r esponsible for regulation of coal ash.

Response: The Agency acknowledges and appreciates this comment. Because EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to
that issue. However EPA has r esponded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to

co mments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state pro grams to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 01833

- 7 

### Organization 1 

### : Sierra Club Oklahoma 

### Commenter 1 : Jody Harlan Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: State regulation and enforcement are notoriously weak or non

- existent and subject to influence by unscrupulous, profit

- motivated corporations with local connections. The Oklahoma Department of Environm ental Quality, Water Resources Board and the Oklahoma Department of Mines each insist the other is responsible for regulation of coal ash in our state

Response: The Agency acknowledges and appreciates this comment. Because EPA is deferring
its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EP A is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 02401

- 3 

### Organization 1 

### : Sierra Club Oklahoma7



### Commen ter 1 : Jody Harlan Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 8.7 

### Comment Excerpt Text: State regulation and enforcement are notoriously weak or non

- existent an d subject to influence by unscrupulous, profit

- motivated corporations with local connections. The Oklahoma Department of Environmental Quality, Water Resources Board and the Oklahoma Department of Mines each insist the other is responsible for regulation o f coal ash in our state

– even in public meetings when we show the video “Bokoshe: The Air We Breathe,” which you can see at http://vimeo.com/12533060.

This video, which was funded by Sierra Club Oklahoma, is about what is happening to 450
citizens who li ve near a coal ash dump in the small town of Bokoshe (“Bo

- ko

- she) in southeastern Oklahoma. The coal ash company initially known as Making Money, Having Fun (now more tactfully renamed Clean Hydro Reclamation) has ruined their property and their lives by d umping coal ash in Bokoshe from the coal

- fired AES Shady Point power plant in nearby Panama, Oklahoma.

Oklahoma law prohibits locating a coal ash dump any closer than three miles from an incorporated city, so when MMHF went to the Oklahoma Corporation Co mmission for a permit, they just left the 100

- year old, incorporated town of Bokoshe off their maps. They got away with it. Bokoshe citizens didn’t know until it was too late.

This is supposed to be reclamation project that would fill up an abandoned lea d mine. Instead, the owners of Making Money, Having Fun are building a toxic wall at least 50 feet high and growing. They have their own turquoise lake. The coal ash flies out of the trucks as “fugitive dust” on many 18

- mile trips to Bokoshe every day. Som etimes school busses drive through it. The coal ash then leaks mercury, arsenic and other toxins into the groundwater that supplies drinking water and then runs down the 50 foot hill onto the neighbors’ property. The kids have
asthma. The calves are stillb orn. And 13 of 14 families who live within a half

- mile of this toxic dump have cancer right now, including a toddler with leukemia, an 8th grade boy with breast
cancer and a 35

- year

- old teacher who has had cancer twice. Several of her same

- age exercise
bud dies are dead from cancer.

Response: The Agency acknowledges and appreciates this comment. Because EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to
comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to

sup port any of the final rule’s provisions. The commenter is further referred to Unit VI of the8

preamble for a presentation and discussion of the technical requirements of the rule as well as EPA’s discussion in Unit XI of the preamble regarding damage cases

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 02821

- 4 

### Organization 1 

### : Missouri Coalition for the Environment 

### Commenter 1 : Matt Ashley Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.1.5 10.5.1.6 

### Comment Excerpt Text: Power companies can dispose of coal ash under a broad "beneficial re

- use" exemption according to Missouri's state regulations. 10 CSR 80

- 2.020 (9)(F). This includes selling the ash as an ingredient i n concrete and the incredibly dangerous use of coal ash as back fill for construction sites. Using ash in concrete, or "encapsulated" form, has a lower (but not zero) potential for leaching, but using ash as construction fill in the "unencapsulated" form a llows untold amounts of dangerous chemicals to leach into groundwater.

While the current Missouri regulation requires a permit from the Clean Water Commission to use
coal ash for fill which limits the amount of coal ash to be used and the area to be fille d, this does not prevent unsafe chemicals from leaching into groundwater. This dangerous Missouri practice would be prohibited entirely if coal ash were designated as a hazardous waste.

Response: The Agency acknowledges and appreciates this comment. Beca use EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regu lation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to m any comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions. The commenter is referred however to Unit IV of t he preamble supporting this rule for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.



### Comment Number: EPA

- HQ

- R CRA

- 2009

- 0640

- 02930

- 3 

### Organization 1 

### : Commenter 1 : Gloria Griffith Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:9



### Comment Excerpt Text: one example highlighting the difficult time s tate legislatures have passing protective environmental laws and understanding one of many elements, selenium, involved in this proposed rule making.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to the risk analysis discussion in Unit X of the preamble as well as all the supporting documentation for that analysis.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 02930

- 4 

### Organization 1 

### : Commenter 1 : Gloria Griffith Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
ATTACHMENT:

Technical Review of Tennessee State Legislature Bills HB

- 1204 and SB

- 1331 Proposing to Deregulate Selenate as a Water Pollutant, and Amended Bi lls Proposing to Adopt EPA’s Fish Tissue Criterion for Selenium

prepared by A. Dennis Lemly, Ph.D. Research Professor of Biology Wake Forest University
Winston

- Salem, NC 27109

prepared for
Save Our Cumberland Mountains

April 2009

ANALYSIS OF ORIGINAL BILLS

Inorganic selenium is present in water in two principal forms: Selenate (SeO4) and Selenite (SeO3). A large amount of technical literature exists describing the environmental dynamics and toxicology of selenate and selenite

— both bioaccumulate in aquatic systems and both are toxic to fish and wildlife. Yet, the Tennessee Legislature proposes to deregulate the selenate form, specifically stating in HB

- 1204 and SB

- 1331 that “Any toxic effluent limitation related to selenium shall not be applicable to selenate”, and “Any water quality criterion established for10

selenium shall be established solely on the basis of the selenite form of the element”. This proposal suggests there is reason to believe that selenate is non

- toxic and can be released into the

e nvironment without fear of negative impacts. Yet, no supporting scientific documentation is presented or cited and there is no explanation of the underlying rational. The premise that selenate is safe and should be exempt from regulation is absolutely not true. There is a large body of scientific literature indicating just the opposite. Because of selenium’s ability to bioaccumulate in aquatic food chains, selenate can be very hazardous to aquatic life, in fact, just as hazardous as selenite. Let me give a few examples from both field and laboratory studies.

1) Kesterson National Wildlife Refuge, CA:

In the 1980's, selenium in agricultural irrigation drainage bioaccumulated in a variety of aquatic
habitats in central California at Kesterson National Wildli fe Refuge. Fish were poisoned and there were massive deaths and deformities in waterfowl and other aquatic birds. This episode of contamination was extensively researched and documented by the U.S. Fish and Wildlife Service and the U.S. Geological Survey ( Lemly et al.1993a, Presser 1994). These agencies determined that the chemical form of selenium responsible for the toxic catastrophe was selenate. Moreover, the process of selenium oxidation from source material, movement of waterborne selenate into
the fo od chain, and ultimate poisoning of fish and wildlife was termed the “Kesterson Effect”. This was the most extensive case of wildlife poisoning by selenium in the U.S., and it was caused by selenate.

2) Laboratory experimental food chain:

Dobbs et al. (1 996) dosed a three

- trophic level food chain (algae, rotifers, fathead minnow fish) with selenate and examined bioaccumulation and toxic effects. By the end of the study all of the
fish were dead and selenium had bioaccumulated to 1000 times the concentrati on in water.

3) Laboratory experimental food chain:

Similar to item 2 above, Bennett et al. (1986) dosed a three

- trophic level food chain (algae, rotifers, fathead minnow fish) with selenate and monitored uptake and effects. Concentrations of
selenium in fish tissues reached 51

- 61 parts per million within 2 weeks, which caused reduced growth rates.

4) Laboratory experimental food chain:

Besser et al. (1993) dosed a three

- trophic level food chain (algae, zooplankton, bluegill fish) with
selenate and sele nite, and monitored uptake and accumulation from both waterborne and dietary sources. They found that in waterborne exposures “bluegills concentrated Se about equally from both inorganic species”. In dietary uptake studies they found that “Bioaccumulation of foodborne Se by daphnids and bluegills was similar in food chains dosed with different Se species”.

5) Laboratory uptake and toxicity:

Maier and Knight (1993) exposed a fish food organism (a benthic macroinvertebrate,11

Chironomus) to selenate and selen ite, and monitored bioaccumulation and toxicity. Selenate was found to be more than twice as toxic as selenite. Final tissue concentrations were in the range of
60

- 80 parts per million dry weight for both forms.

6) Conversion of selenate to selenite:

Eve n if selenate was harmless, it is readily converted to selenite by a variety of biological and chemical processes in aquatic systems. For example, Maiers et al. (1988), Masscheleyn and Patrick (1993), and Bowie et al. (1996) have clearly documented this ph enomenon in both laboratory and field studies. This means that selenate in a wastewater discharge doesn’t necessarily stay selenate but can, in fact, wind up as selenite. Thus, regulating one chemical form and not the other is meaningless from an environme ntal risk perspective.

Conclusions: There is no scientific basis for the proposed deregulation of selenate. Extensive, incontrovertible scientific research data show that selenate in wastewater effluent poses a significant toxic threat to fish and wildlif e. Therefore, selenate should be regulated as part of the total selenium concentration or load, with no differentiation made between selenate and selenite. Moreover, water quality criteria should account for selenate as well as selenite.

ANALYSIS OF AMEND ED BILLS

The revised House and Senate bills state that “Any water quality criterion for fish and aquatic life established for selenium shall not be more stringent than the recommended national criterion established by the United States Environmental Prote ction Agency at Volume 69, Federal Register No.242, Friday, December 17, 2004, or as subsequently modified by such agency”. In principle, this would seem to be a reasonable position. However, there are major technical flaws
in the EPA criterion document th at make the recommended tissue selenium concentration (7.9 parts per million, dry weight) grossly underprotective. Skorupa et al. (2005) prepared a detailed technical review of the criterion document. They discovered and confirmed numerous
fundamental scie ntific flaws, for example:

1) Key design features of the controlling experiment from which EPA derived the 7.9 ug/g criterion (Lemly 1993b) were overlooked. EPA did not recognize the full complexity of Lemly’s experimental design and its implications for estimating the magnitude of adverse effects. Lemly’s study was a segmented time

- series design that included periodic removal of fish,without replacement. EPA erroneously analyzed the data as if it were a much simpler design. Correctly interpreted, Lemly’s data show that a tissue selenium concentration of 5.8 ug/g caused 50% mortality in juvenile bluegill fish. Thus, EPA is proposing a concentration that, at best, killed half of the test organisms. Based on Lemly’s results, the criterion value would need to be set at 4.0 ug/g in order to fully protect fish from selenium toxicity.

2) The crucial regression equation relating selenium in fish ovaries to concentrations on a wholebody basis was erroneously reported. This error causes gross underestimation of the selenium concentration in eggs, and thus the threat of reproductive impacts. The end result is that the equation presented by EPA substantively misinforms risk assessment.12

3) Assessments of risk to wildlife were based on a draft wildlife toxicological ben chmarks report rather than the much different final version, and focused too much on fish eating birds. The narrow focus neglects the more rigorous basis for wildlife risk assessment offered by other species. These flaws resulted in a criterion (7.9 ug/g) that would leave as much as half of aquatic

- dependent wildlife species unprotected.

Since the release of its preliminary criterion in 2004, EPA commissioned an additional study (McIntyre et al. 2008) intended to duplicate the work of Lemly (1993b) and pro vide additionaldata for evaluation prior to finalizing the criterion. However, a major design flaw combined with operational differences in the execution of the study prevented the McIntyre et al. investigation from being a proper replication of Lemly. Fir st, the design flaw. Whereas Lemly coupled reduced temperature with shortened photoperiod in order to simulate winter conditions (documented by records of daily lighted period as well as light intensity at the water surface), McIntyre et al. did not reduce photoperiod and do not indicate what the photoperiod or light intensity was. This has important implications for the response of their fish and interpretation of their results. Without a shortened photoperiod McIntyre et al. did not induce the Winter Stre ss Syndrome (WSS) described by Lemly, which was responsible for 50% mortality at 5.8 ug/g Se. Further, McIntyre et al. did not observe reductions in body condition and lipid content in their fish, as did Lemly. Failure to reduce photoperiod was a major des ign flaw in the McIntyre et al. study and it resulted in a significantly different exposure regime than Lemly’s. Thus, under the relatively long photoperiod cycle used by McIntyre et al., fish were feeding sufficiently to maintain lipid and body condition whereas Lemly’s fish were in a more dormant state, ate almost nothing, and experienced WSS. This resulted in much higher mortality at much lower tissue selenium levels in Lemly’s study. Secondly, important operational differences also prevented McIntyre et al. from correctly duplicating Lemly. For example, Lemly’s fish were exposed to a longer cold period. McIntyre et al. recognized this as the first, and most crucial, of several differences between the two studies and stated that “Of these differences, we expect only the first to have any possible significant effect on the results”. This admission underscores a simple truth, the two studies are not comparable. Because of major differences in exposure regime and resultant physiological condition of fish, McI ntyre et al. did not replicate Lemly’s study and their results cannot be used to refute its findings or support the proposed 7.9 ug/g EPA criterion (or a higher value).

Conclusions:

Several egregious errors bias EPA’s draft selenium criterion in the same direction, toward dangerously overestimating the safely tolerable tissue

- based number. Technical analysis reveals that the proposed 7.9 ug/g value would allow up to 85% of fish and aquatic birds to be poisoned. Although a new study has emerged seeking to refine the toxic tissue threshold, it fails to provide useful information due to critical design flaws and confounding test conditions. Therefore, attempts by EPA or others to validate the 7.9 ug/g criterion value or adjust it upwards based on
results from that study are scientifically unjustified. In short, if the Tennessee State Legislature follows its proposed course of action and adopts a criterion of 7.9 ug/g or higher, it will be adopting an environmentally invalid number.

References13

Bennett, W.N., A.S. Brooks, and M.E. Boraas. 1986. Selenium uptake and transfer in an aquatic
food chain and its effects on fathead minnow larvae. Archives of Environmental Contamination and Toxicology 15: 513

- 517.

Besser, J.M., T.J. Canfield, and T.W. LaPoint. 1993. Bi oaccumulation of organic and inorganic selenium in a laboratory food chain. Environmental Toxicology and Chemistry 12: 57

- 72.

Bowie, G.L., J.G. Sanders, G.F. Riedel, C.C. Gilmour, D L. Breitburg, G.A. Cutter, and D.B. Porcella. 1996. Assessing selenium cy cling and accumulation in aquatic ecosystems. Water, Air,
and Soil Pollution 90: 93

- 104.

Dobbs, M.G., D.S. Cherry, and J. Cairns, Jr. 1996. Toxicity and bioccumulation of selenium in a
three

- trophic level food chain. Environmental Toxicology and Chemistry 15: 340

- 347.

Lemly, A.D., S.E. Finger, and M.K. Nelson. 1993a. Sources and impacts of irrigation drainwater contaminants in arid wetlands. Environmental Toxicology and Chemistry 12: 2265

- 2279.

Lemly, A.D. 1993b. Metabolic stress during winter increases the toxicity of selenium to fish. Aquatic Toxicology 27: 133

- 158.

Maier, K.J., and A.W. Knight. 1993. Comparative acute toxicity and bioconcentration of selenium by the midge, Chironomus decorus, exposed to selenate, selenite, and seleno

- DL

methionine. A rchives of Environmental Contamination and Toxicology 25: 365

- 370.

Maiers, D.T., P.L. Wichlacz,, D.L. Thompson, and D.F. Bruhn. 1988. Selenate reduction by
bacteria from a selenium

- rich environment. Applied Environmental Microbiology 54: 2591

- 2593.

Massc heleyn, P.H., and W.H. Patrick, Jr. 1993. Biogeochemical processes affecting selenium cycling in wetlands. Environmental Toxicology and Chemistry 12: 2235

- 2243.

McIntyre, D.O., M.A. Pacheco, M.W. Garton, D. Wallschläger, and C.G. Delos. 2008. Effect of
Se lenium on Juvenile Bluegill Sunfish at Reduced Temperature. EPA

- 822

- R

- 08

- 020. U.S. Environmental Protection Agency, Office of Water, Washington, DC.

Presser, T.S. 1994. The “Kesterson Effect”. Environmental Management 18: 437

- 454.

Skorupa, J.P., T.S. Pre sser, S.J. Hamilton, A.D. Lemly, and B.E. Sample. 2005. EPA’s Draft
Tissue

- Based Selenium Criterion: A Technical Review. Technical Report. U.S. Fish and Wildlife Service, Division of Environmental Quality, Arlington, VA.

Response : The Agency acknowledges and appreciates this comment. The Agency is familiar with the damage cases associated with elevated levels of bioaccumulated selenium in fish

. Considering that these damages are caused by NPDES

- permitted effluent discharge, these14

issues are outside the sc ope of this rule but would be addressed by the amended Effluent Limitation Guidelines for the steam industry which are scheduled for publication in 2015.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03053

- 6 

### Organization 1 

### : Commenter 1 : Chris Barnes Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.1 4.2.2 

### Comment Excerpt Text: For example, Xcel Energy, one of the larger power corporations in the United States, alread y regulates their CCR distribution and waste management according to each state requirement where they fall (Xcel Energy website, 2010). Obviously this is just one example of many commercial and private providers, but it still drives home the main point. T he states need to have their regulations on CCRs changed to ensure these accidents do not happen again. The second alternative also allows for additional regulations put on companies nationwide (for each state) to ensure their landfills and surface impound ments will not create disasters such as the one already seen. Basically, these requirements would be national but placed onto the company as requirements from the state

- level organizations that mandate certain rules and ensure the regulations are met. This leaves the majority of the regulation to each individual state, as it has been since CCRs were found to need regulation.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 14 

### Organization 1 

### : Kansas Department of H ealth and Environment 

### Commenter 1 : William L. Bider Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The Kansas program could serve as a model for federal reg ulation under Subtitle D with provisions for states to exercise appropriate flexibility to administer their program based upon15

their own unique geology and climate.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 2 

### Organization 1 

### : Kansas Department of Hea lth and Environment 

### Commenter 1 : William L. Bider Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Kansas has eight (8) coal

- burning power plants that manage fly ash, bottom ash, and various air pollution control residuals in landfills and surface impoundments. Through more than 50 years of operating history, there has never been an incident where an environmental release has impacted surface water or groundwat er. It is clear from this result that increased regulation will not yield any benefit. Human health and the environment has been adequately protected by the permitting laws and regulations that are presently in

- place in Kansas.

At present, Kansas has a fu ll system of waste and water permits and a beneficial use approval process to ensure that CCRs are properly managed to prevent impacts to human health or the
environment.

Response: The Agency acknowledges and appreciates the comment. The commenter is
ref erred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans. The commenter is further referred to Unit VI which presents the technical standards being promulgated by this
rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 32 

### Organization 1 

### : Kansas Department of Health and Environment 

### Commenter 1 : William L. Bider Commenter Type: State Government Classification: Substantive Comment Category:16

Current Task: Examine Context Assigned/Due: Other Sections: 4.1.1 

### Comment Excerpt Text: The long history of safe CCRs waste management in Kansas under state laws and regulations that are substantially equivalent to the federal Subtitle D standards demonstrates that these regulatory standards are adequate and effective in protecting huma n health and the environment. Response: Because EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are ot herwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damag e cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Nu mber: EPA

- HQ

- RCRA

- 2009

- 0640

- 03934

- 14 

### Organization 1 

### : Kentuckians For The Commonwealth (KFTC) 

### Commenter 1 : Nancy L. Reinhart Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: We recommend that the EPA refuse to grant Kentucky primacy over these regulations. If that is not possible, the EPA should take all steps necessary to ensure enforcement and mitigation after the rule is adopted, including consistent and ongoi ng oversight of state activities.

Implementing and enforcing new CCR regulations will not happen in Kentucky under a business as usual scenario. Regulatory agencies in this state operate in a culture of willful negligence. There are many documented exampl es to prove this

– many of which our members have presented to EPA staff in meetings over the last year.

The Kentucky Division of Water’s (KDOW) failure to enforce water quality standards in Kentucky’s waterways, which are primarily damaged by coal

- relate d activities, represents perhaps the most egregious form of this negligence. 2,500 miles of streams in the Eastern Kentucky coal mining region fail to meet water quality standards, with mining named as the known or suspected pollution source (Kentucky Divi sion of Water Integrated Report on Water Quality to Congress, 2008). People’s well water is routinely degraded and/or destroyed by the coal industry activities. Kentucky’s contaminated streams drain into rivers that serve as public drinking water sources n ot only for mountain communities but also for Kentucky's most populous cities. Seeing nearby streams running orange or black, many Eastern Kentucky residents routinely drink bottled water, fearing that even the treated water supply is not safe to
drink.17

R esponse: Because EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final s ubtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions. The
commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states t o incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03934

- 16 

### Organization 1 

### : Kentuckians For The Commonwealth (KFTC) 

### Commenter 1 : Nancy L. Reinhart Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: There are untold numbers of open, illegal coal ash dumps throughout the state as well. Residents of Harlan County, Kentucky report open dumps of CCR that ar e compacted with dozers and covered with dirt. One observer said, “the workers who dump it and compact it do not use any protective equipment. Dust from it is flying around all the time.” The illegal CCR dumps he is referring to are located within a couple of hundred feet of the Poore Fork of the Cumberland River and adjacent to US 119, the main road that links the city of Harlan and the Tri

- Cities communities of Cumberland, Benham and Lynch.

Even given the presence of solid evidence, no meaningful action has been taken to improve impaired waterways or address illegal CCR dumping. Having witnessed this utter disregard of water quality standards over the last three decades, KFTC and other groups have recently requested that the EPA rescind KDOW’s authority t o issue Clean Water Act permits. In light of this request, KFTC recommends that the EPA retain primacy over implementing and enforcing new CCR regulations in Kentucky.

If that is not possible, the EPA should take all steps necessary to ensure enforcement and mitigation after the rule is adopted, including consistent and ongoing oversight of state activities. We do not expect that KDOW and other regulatory agencies will implement new CCR regulations in a timely and effective manner without outside pressure. We urge the EPA to use its authority and the authority of the executive branch to encourage speedy state passage of commensurate state laws and to ensure proper enforcement. EPA should also offer consistent and18

ongoing monitoring of state adherence to the regulations. This leadership is critical to ensure protection of Kentuckians going forward.

Response: Because EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions. The
commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states t o incorporate the CCR rules into state solid waste management plans.



### ------------------------------------------------------------------------------------------------------

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 04001

- 6 

### Organization 1 

### : Coresco, LLC 

### Commenter 1 : Carrie D. Lilly Commenter Type: Beneficial User Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.3 

### Comment Excerpt Text: 2. The Rule fails to recognize tile sufficiency of state programs The Rule indicates that the adequacy of state regulation is one of the key issues before the EPA, and the Rule solicits information on the details of state regulatory structures. The Rule n otes that the EPA study evaluating state regulatory oversight involved only eleven states, which account for approximately half of the CCRs generated in the United States. The Rule is based upon an incomplete analysis of state programs and it is premature for EPA to suggest that state regulatory programs are inadequate. The Rule fails to recognize that states have not been given an opportunity to regulate and evaluate state programs in light of the recent federal guidance (which needs clarification). The ru lemaking process should be delayed until the federal guidance has been clarified, and until a proper, thorough analysis of state programs has been conducted.

Response: Because EPA is deferring its final Bevill Determination, EPA has not responded to

comme nts that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those19

programs and is not relying on state programs to support any of the final rule’s provisions. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for t he disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 04001

- 7 

### Organization 1 

### : Coresco, LLC 

### Commenter 1 : Carrie D. Lilly Commenter Type: Beneficial User Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.3.2 10.5.2.4 11.2.5 10.5.2 .3 

### Comment Excerpt Text: One alternative suggested in the Rule is whether the EPA should promulgate standards allowing unencapsulated uses of CCRs on a site

- specific basis, based on site specific risk assessment, taking into consideration various factors including CCRs character and composition, leaching potential under the range of conditions under which CCRs will be managed, and the context in which the CCRs will be applied, such as location, volume, rate of application, and proximity to water. A thoroug h evaluation of existing state regulatory programs will likely show that states are already performing such an analysis with respect to unencapsulated uses of CCRs, and that federal regulation would be duplicative and unnecessary. Below is a summary of sta te regulations in West Virginia and Pennsylvania. The Rule specifically solicits information about state leachate requirements. As noted below, both West Virginia and Pennsylvania have taken active approaches with respect to leachate standards.

A. West Vi rginia

In accordance with the Coal Combustion By

- Product Utilization Policy! of the West Virginia Department of Environmental Protection (WV CCB Policy), the Division of Mining and Reclamation (OMR) may approve the utilization of coal combustion by

- produc ts (CCBs) for beneficial use. The OMR evaluates beneficial use in accordance with plans, design specifications, testing procedures, and monitoring requirements. The WV CCB Policy contains specific compliance requirements for the use of CCRs as a source of alkaline addition to neutralize potentially acid

- producing materials in connection with coarse coal refuse, line coal refuse, and combined coal refuse disposal sites. The net neutralization potential of the CCRs must he greater than or equal to 5 tons per 1000 tons CaCO3 equivalent, and there is a mathematical formula for calculating the minimum quantity of required amendment, based upon the amount of refuse to be neutralized, the percent sulfur, and the percent net neutralization potential of the amendment . The mathematical calculation for the amount of required amendment provides for a 10% safety factor. CCRs to be utilized on surL1ee mining operations are required to be tested and analyzed by the permit applicant for certain parameters and properties. The WV CCB Policy requires at least annual testing for the Toxicity Characteristic Leaching Procedure (I'CLP) test (ii)r metals only), and the OMR has the authority to require20

additional periodic retesting of the CCBs. If there is a change in the source of th e CCBs being utilized, prior approval of the change must be requested and testing and analysis must be performed on the CCBs from the new source. The WV CCB Policy expressly provides that CCSs which exhibit potentially toxic or potentially acid producing c haracteristics will not be approved for beneficial use. The WV CCB Policy provides that the decision to issue or deny a permit will be in favor of minimizing risk to the environmental integrity of the State's air, land and water.

West Virginia regulation s favors public participation in the permitting process. Upon filing a permit application, the applicant is required to provide proof of notification (by certified mail) to residents living on properties contiguous to the proposed permit area. Additionally , a copy of the permit application is required to be made available for public review in the county clerk's office where the proposed activity is to take place. Before a permit is issued, the permit is advertised in publications of general circulation and a copy of the permit application is made available for public review in the DEI' regional office.

B. Pennsylvania

Proposed rules under Chapter 290 of the Pennsylvania Code regarding the storage and beneficial use of coal ash arc under review in Pennsylv ania. Among other things, the proposed Chapter 290 rules establish chemical leachate standards and procedures for qualifying coal ash for beneficial use, which is currently done by certification by policy, in accordance with regulations under Pennsylvania' s larger waste rulemaking process. The Chapter 290 rules would remove coal ash regulations from the waste rules, and would create targeted rulemaking focused on coal ash issues. The proposed Chapter 290 rules establish loading rates to ensure protective us c of coal ash as a soil amendment and siting restrictions for storage areas to protect groundwater and surface water, including distance from streams, wetlands, water sources, and others. In addition, the rules contain design and operating standards for th e storage of coal ash in piles and surface impoundments. Leachate standards arc based on twenty

- five (25) times the waste classification standard for metals and other cations and the drinking water standards fill' other contaminants.
The factor of 25 allow s for dilution and attenuation of metals and other cations that is known to

occur.

The Rule solicits comments on states' practices in providing for public participation in the development of permitting requirements. The review process for the Chapter 290 rules follows the same procedure all as similar rule makings in Pennsylvania: interested persons arc invited to submit comments, suggestions or objections regarding the proposed rules to the Environmental Quality Board (EQB); public hearings are held for the purpose of accepting comments on the proposed rulemaking; the Pennsylvania Department of Environmental Protection (PADEP) submits a copy of the proposed amendments to the Independent Regulatory Review Commission (IRRC) and the House and Senate Environm ental Resources and Energy Committees (Committees); PADEP provides lRRC and the Committees with a detailed Regulatory Analysis Form and makes a copy of the material available to the public upon request.

Response: The commenter is referred to Unit IV of to day’s preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.21



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 04005

- 3 

### Organization 1 

### : Commenter 1 : James Burch, Ph.D., et. al. Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Innocent people’s lives s hould not be sacrificed in order to generate electricity. The fact that studies performed by the EPA and others have already documented public health and environmental impacts associated with offsite releases of coal ash waste indicates that state or
local governments cannot be comprehensively relied upon to protect the public’s health or provide adequate environmental protection.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 04138

- 1 

### Organization 1 

### : Kentucky Department for Environmental Protection 

### Commenter 1 : R. Bruce Scott Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The Commonwealth of Kentucky currently has the responsibility to oversee the proper management and beneficial reuse of Coal Combustion Residuals within the state. We believe that the management of CCR is best handled at the local and state level. Kentucky also recognizes that appropriate additional controls are warranted for the management of CCR.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationa le for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 05439

- 1 

### Organization 1 

### : Commenter 1 : Robert D. Edstrom, Ph.D.22

Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Exce rpt Text: Although the proposed rule published in the Federal Register (June 21,2010, Vol. 75, No. 118) describes in detail the options for regulating under RCRA subtitle C or subtitle D, the dominant theme of this rule appears to be; keep CCRs dry. I believe the EPA would be well served by focusing on the causes of past spills that, by EPA admission, have been caused by the lack of consistent state management and the regulation of surface impoundments.

Response: The Agency acknowledges and appreciat es the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rule s into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 05714

- 1 

### Organization 1 

### : Physicians for Social Responsibility (PSR) 

### Commenter 1 : Mass Comment Campaign sponsored by Physicians for Social Responsibility (76) Commenter Type: A dvocacy Group Classification: Non

- substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.1 

### Comment Excerpt Text: As a person concerned about individual and public health, I support EPA's decision to regulate coal ash under the Subtitle C option. As a resident of North Carolina, I am aware of the dangers of coal ash. With 13 coal ash ponds currently leaking toxic chem icals into groundwater, and 12 already classified as high hazard by the EPA, N.C communities are particularly vulnerable. NC regulators have been unwilling to properly protect its citizens and environment, and I believe strong federally enforceable standar ds are needed.

Because of all the toxic chemicals and heavy metals in coal ash, it is unreasonable to classify and treat coal ash as household garbage. Coal ash should be regulated as hazardous waste, since, under your guidelines, it poses "a substantial (present or potential) hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed." Failure to do so would be morally unacceptable. Please select the Subtitle C option.23

Response: The Age ncy acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commen ter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect stat es to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 05752

- 6 

### Organization 1 

### : Foothills Group of the Sierra Club 

### Commenter 1 : G. Preschle Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: A vast majority of states do not even require monitoring to see if coal ash is polluting drinking

water.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06011

- 2 

### Organization 1 

### : Public Service Commission (PSC)

- State of North Dakota 

### Commenter 1 : Tony Clark Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 11.2.5 

### Comment Excerpt Text: The Public Service Commission (PSC) is the state agency responsible for regulating public
utilities in North Dakota as well as regulating surface coal mining operations pursuant to the federal Surface Mining Control and Reclamation Act of 1977 (SMCRA) and under the oversight of the Office of Surface Mining (OSM). We strongly believe the regulation of CCR disposal needs to remain with each state since the appropriate state regulatory agency is in the best position to develop regulations that are tailored to fit the specific conditions in that state.24

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06011

- 9 

### Organization 1 

### : Public Service Commission (PSC)

- State of North Dakota 

### Commenter 1 : Tony Clark Commenter Type: State Government Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.2 

### Comment Excerpt Text: The PSC believes North Dakota's regulation of CCR disposal already includes the components that are needed to protect the environment and public health. We also believe it is unnecessary that EPA regulate CCRs as non

- hazardous waste under Subtitle D of RCRA as being considered under the proposed rules.

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

Units IV an d V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the tec hnical standards the Agency is promulgating in
this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans. Moreover, b e cause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D re gulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final25

conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06068

- 6 

### Organization 1 

### : Utah Physicians for a Healthy Environment 

### Commenter 1 : John Veranth Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: On FR page 35133 is indicated that EPA is seeking comment on “adequacy of state programs [for CCRs].” This is a problem in Utah since the State Department of Environmental Quality is prohibited by statute from imposing requirements stricter that the corres ponding federal regulation. Thus, the state program in Utah defaults to the minimum allowable under the federal
rules.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans. Moreover, b ecause EPA is deferring its fin al Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state

progra ms because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06129

- 5 

### Organization 1 

### : City Utilities of Springfield, MO 

### Commenter 1 : David M. Fraley Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:26



### Comment Excerpt Text: This observation is especially true in Missouri, where t he state has already implemented an aggressive regulatory program for CCRs. Missouri is among a number of states that studied this issue years ago and developed technically sound solid waste rules that hearken to engineering standards applicable to municip al solid waste landfills, yet recognize the chemical, physical, and operational issues unique to these dedicated disposal areas. The Missouri rules do require landfill liners and groundwater monitoring, two parameters specifically solicited by EPA in the p roposal. While City Utilities has always managed CCRs in engineered disposal units, these state rules have pushed other generating facilities to move away from disposal impoundments to dry, aboveground monofills.

Response: The Agency acknowledges and app reciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CC R rules into state solid waste management plans. Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant
comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s prov isions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06190

- 6 

### Organization 1 

### : Lafayette Utilities System 

### Commenter 1 : Lisa G. Dowden and Steven C. Pearson Commenter Type: Electric Utility Facility Classification: Substantive Comment Category: Current Task: Examin e Context Assigned/Due:



### Comment Excerpt Text: EPA has specifically sought comment on the adequacy of state regulatory programs to ensure proper management of CCRs. [Footnote 13: 75 Fed. Reg. at 35,133]. Lafayette supports the D

prime option because it is consistent with the Louisiana regulations under which the Rodemacher surface impoundments are currently permitted and operated. The effectiveness of Louisiana’s existing regulatory framework supports Lafayette’s position. As noted in the May 29, 2009 Comments submitted in this proceeding by the LDEQ, L ouisiana has successfully regulated CCR through its industrial solid waste program since 1983. [Footnote 14: May 29, 2009 letter from Cheryl Sonnier Nolan, Assistant Secretary of LDEQ to Matt Hale, Director of Resource27

Conservation and Recovery of EPA]. No twithstanding the fact the LDEQ has seen no data suggesting that CCR qualifies as hazardous waste, the LDEQ requires permitted impoundments, such as those at Rodemacher, to have liners [footnote 15: The Rodemacher impoundments are clay

- lined, consistent wi th regulatory requirements at the time of construction. New impoundments in Louisiana must have composite liners] and groundwater monitoring programs, in addition to meeting all national standards for location, design, operation, closure, post closure,

cor rective action and monitoring. [Footnote 16: Id.].

In other words, Louisiana has successfully regulated disposal of CCR from Rodemacher for twenty

- seven years, and “all available soil, groundwater and surface water monitoring data show that [Louisiana’s] current regulatory scheme is fully protective of those media.” [Footnote 17: Id.]. EPA should not punish responsible coal generating utilities that have operated in compliance with effective state regulatory programs by imposing costly retrofit or closure requirements that the state, which has twenty

- seven years of experience regulating these wastes, has not found necessary. Even if EPA concludes that there is a need to strengthen regulation in states that have not taken such proactive measures to regulate the storage and disposal of CCR, there is no need for EPA to pursue such a course in Louisiana, or in other states where existing successful state programs already protect the environment.

Response: The Agency acknowledges and appreciates the comment. T he commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans. Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherw ise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage ca ses. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number : EPA

- HQ

- RCRA

- 2009

- 0640

- 06196

- 31 

### Organization 1 

### : Comite Dialogo Ambiental 

### Commenter 1 : Ruth Santiago Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.2 

### Comment Excerpt Text:28

EPA’s lack of regulation of CCRs is based, in part on presumed state regulation. In the case of Puerto Rico, the “gaps in state oversight”, means that there is an absolute void in terms of CCR regulation.

The regulation of nonhazardous waste s in Puerto Rico is delegated to a government body known as Junta de Calidad Ambiental or Environmental Quality Board (EQB). To this date, there is no regulation regarding CCR generation, disposal or secondary use. It should be noted that there are no disp osal facilities (e.g. landfills, impoundments) in Puerto Rico for CCRs.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the com menter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans. Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support ce rtain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusio ns on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06203

- 10 

### Organization 1 

### : Arizona Public Service Company (APS) 

### Commenter 1 : Scott Davis Commenter T ype: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.2.2 7.4.1 

### Comment Excerpt Text: A. Mechanism for State Implementation of CCR Rules

While APS supports the Subti tle D Prime option, a major shortcoming of this approach, as well as with the other Subtitle D alternatives, is the lack of any mechanism for qualified state programs to step in and directly administer the Subtitle D CCR regulations, where the state

progra ms meet or exceed the federal controls. Such an approach makes no practical sense, and it would result in parallel and redundant regulatory programs for the same materials. Many states have regulatory programs in place that meet or exceed the Subtitle D st andards in EPA's proposal
and for this reason APS believes the D

- Prime option should allow qualified state programs to administer the federal program.29

For example, the Arizona Department of Environmental Quality ("ADEQ") administers the Aquifer Protectio n Permit program ("APP Program"). This is a comprehensive program that protects the state's groundwater resources by a combination of discharge reduction through use of Best Available Demonstrated Control Technology ("BADCT") and compliance with Aquifer
Wa ter Quality Standards ("AWQS") at the applicable Point of Compliance ("POC").

A permitee is required to "...ensure the greatest degree of discharge reduction achievable through application of the best available demonstrated control technology, processes, operating methods or other alternatives, including, where practicable, a technology permitting no discharge of pollutants." Arizona Revised Statutes § 49243. B.1. Pollutants discharged from the permitted facility may not exceed an AWQS at the applicable P OC. The POC is located down gradient of the site at the edge of the Pollution Management Area ("PMA"). There are both numeric and narrative standards that apply and all aquifers are protected for drinking water use and the AWQSs are drinking water standard s. In addition, if the ambient water quality of the aquifer exceeds an AWQS, no pollutant discharged may further degrade the water quality at the applicable POC.

The program is broad in scope and detailed in its requirements. All facilities that discharg e are required to obtain an Aquifer Protection Permit (APP). The definition of discharge is "...the addition of a pollutant from a facility either directly to an aquifer or to the land surface or the
vadose zone in such a manner that there is a reasonable probability that the pollutant will reach an aquifer." Arizona Revised Statutes § 49

- 201.12. In addition to this general requirement, many facilities are categorically defined as discharging facilities. These include surface impoundments
and solid waste la ndfills. Arizona Revised Statutes § 49

- 241 .B 1. An aquifer is defined as "a geologic unit that contains sufficient saturated permeable material to yield usable quantities of water to a well or spring." Arizona Revised Statutes § 49

- 201.2. The APP regulati ons further define the term "usable quantities" to mean "...five gallons of water per day." Arizona
Administrative Code R18

- 11

- 501.4.

The major components/requirements of an APP are listed below:

• BADCT

• Compliance with AWQSs at the POC

• Technic al Capability30

• Financial Capability

• Zoning

The aquifer protection permit program is designed to protect groundwater quality using a two tiered approach. The first level of protection is discharge reduction through the use of BADCT. The goal of the BADCT requirement is to prevent to the greatest extent possible the discharge of pollutants to the aquifer. In fact as noted above, the BADCT design must, where practicable, include alternative technologies permitting no discharge of pollutants. Permits i nclude inspection and monitoring requirements to insure that the facility BADCT performs as designed.

The second level of defense is the requirement to meet AWQSs at the applicable POC. Arizona Revised Statutes § 49

- 243. The POC is located in the shallow most aquifer at the downgradient edge of the PMA. For example, the PMA for a surface impoundment is the outer edge of the impoundment. The POC must also be located to ensure protection of all current and reasonably foreseeable future uses of the aquifer. Arizona Revised Statutes § 49

- 244.

The permittee must also show that they have the technical and financial capability to construct, operate and eventually close the facility. Arizona Administrative Code R18

- 9

- A203. Design plans and most required technica l reports require submittal by a registered engineer or geologist. The permittee must also submit financial information on the costs to construct and operate, and the cost associated with post closure and closure of the facility. The permit would not be is sued without presenting an approved method of financial assurance. This showing can take the form of a surety bond, certificate of deposit, trust fund, letter of credit, insurance policy, cash deposit, or financial guarantees. ADEQ can withdraw approval to operate if there is evidence that the permittee would lose the capability to meet the requirements for financial assurance.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans. Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to s ignificant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relati ng to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to supp ort any of the final rule’s provisions.31



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06223

- 2 

### Organization 1 

### : Ohio Utility Group 

### Commenter 1 : Michael E. Born Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: I. Ohio EPA has adequate and appropriate laws and regulations that govern CCR handling and disposal; increased federal regulation is not needed.

Since 1976, Ohio Revised Code (“ORC”) Chapters 3745 and 3734 have required permitting and regulation of CCRs as either a solid waste or as a special waste. Ohio Administrative Code (“OAC”) Chapters 3745

- 27, 29, and 30 provide a comprehensive regulatory scheme for permitting CCRs such as scrubber sludge or gyps um and other industrial and municipal solid wastes. OAC Chapter 3745

- 31 requires installation permits for ash disposal facilities. As a result of these rules, all CCR facilities constructed in Ohio since the early 1980s have permits and substantial regulat ory oversight by Ohio EPA.

Not only is Ohio’s regulatory oversight substantial, it meets and exceeds U.S. EPA standards for an “adequate” regulatory program for solid waste. In the preamble, EPA identifies several characteristics of an adequate state prog ram, including: 1) leachate collection; 2) groundwater monitoring; 3) whether a unit must be lined; 4) the effectiveness of existing management units compared to new units; 5) whether the state requires routine analysis of CCRs; and 6) the overall

extent o f permit requirements. Ohio’s solid waste laws provide broad and comprehensive legislation addressing landfill permitting, siting and design standards, financial assurance, owner/operator background checks, solid waste planning, disposal fees, and state re cycling goals.

With respect to solid waste regulations, ORC 3734.05(A)(2) states that “each person proposing to open a new solid waste facility or to modify an existing solid waste facility shall submit an application for a permit with accompanying detail plans and specifications to the environmental protection agency for required approval . . . pursuant to division (A) of section 3734.02 . . . and division (D) of section 3734.12.” Specifically, facilities responsible for the management of CCRs are designa ted as Class III Residual Waste Landfills. Regulatory requirements include:

- Permit to Install Application (OAC 3745

- 30

- 05)

- Specific Siting Criteria (OAC 3745

- 30

- 06(H))

- Construction and Design Quality Assurance Requirements (OAC 3745

- 30

- 07(H))which32

pr ovides for testing procedures and frequency, soil liner system, leachate collection and management system, cap system, permanent groundwater control structures, and permanent
surface water control structures

- Groundwater Monitoring Program (OAC 3745

- 30

- 08 )

- Final Closure/Post

- Closure Plan (3745

- 30

- 09)

An additional measure of protection for Class III Residual Waste Landfills is the requirement to conduct laboratory leaching tests on the residual waste. Fifteen parameters are required for Ohio’s Class II I Residual Waste leaching tests: arsenic, barium, cadmium, chloride, chromium, fluoride, iron, lead, manganese, mercury, pH, selenium, sodium, sulfate and total dissolved solids. (OAC 3745

- 30

- 03(A)(1) and OAC 3745

- 30

- 04 Appx. I). Over the past twenty

- five years, Ohio EPA and the industry have developed a significant data base which includes the physical and chemical characteristics of CCRs, as well as their potential impacts on groundwater and the environment. Ohio EPA’s analysis of the permitted facilities demonstrates that CCR units in Ohio are well regulated and have a minimal impact on the environment [Footnote 1:“Correlating Geologic Setting, Engineering and Groundwater Quality at Hazardous and Non

- Hazardous Waste Storage, Treatment and Disposal Sites i n Ohio.” Ohio Environmental Protection Agency, Division of Drinking and Groundwater (September 4, 1998).]. Furthermore, it is anticipated that the potential impacts from these regulated facilities on the environment will be further minimized in light of Oh io’s adoption of more stringent regulationsin 2004 [Footnote 2: Ohio EPA Guidance #0690, Solid Waste Landfill Siting, Permitting, & Hydrogeologic Investigation (June 2004).].

Ohio has also operated a similar program for surface impoundments under its wast ewater preconstruction permitting program. The development of new surface impoundments has been authorized under the permitting requirements in OAC Chapter 3745

- 31, and new facilities incorporate many of the same safeguards found in the Class III Residual Waste Rules. Discharges from the impoundments are authorized under the National Pollutant Discharge Elimination System (“NPDES”) permitting program and are subject to routine monitoring and reporting requirements. Most new facilities incorporate liners, gr oundwater monitoring, and follow similar siting standards as those applied to dry landfill facilities.

In short, states like Ohio already have adequate regulatory programs in place to address CCRs. The isolated failure of a minority of other states to ado pt similar programs does not justify a massive federal undertaking and cannot justify regulating CCRs as hazardous waste.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussi on for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.33

Moreover, b ecause EPA is deferring its f inal Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, becau se EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state

prog rams because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06226

- 8 

### Organization 1 

### : Pennsylvania Coal Association (PCA) 

### Commenter 1 : Josie Gaskey Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.3 

### Comment Excerpt Text: Pennsylvania already has an effective st ructure in place to handle CCRs

Pennsylvania has more than 30 years experience successfully and effectively managing CCRs. Our residual waste regulations govern the transportation, storage and disposal of CCRs and are based on scientific and engineering s tandards similar to the RCRA Subtitle D

- authorized municipal waste regulations. Pennsylvania's current monitoring and operational requirements exceed what is being proposed in either Subtitle C or Subtitle D. These include specific requirements for the cha racterization of coal ash, including sampling protocol and established analytical limits. Their experience and successful environmental efforts are outlined in an April 10, 2009 letter to Mr. Matt Hale at EPA from PA DEP Deputy Secretary Thomas Fidler as
f ollows:

"Since 1985 DEP has provided oversight on the use of the beneficial use of coal ash for mine reclamation and other uses. In 1992, Pennsylvania implements regulations governing the management of coal combustion wastes covering storage, disposal and beneficial use. Under those regulations and oversight, coal [ash] has been successfully used for mine reclamation throughout the Commonwealth. Through our groundwater monitoring program and data collected at reclamation sites, we have found no indication of ground water degradation attributable to the placement of coal ash."

Given the proven track record of the success of the beneficial use program, it makes no sense to suggest that Pennsylvania not administer the federal Subtitle D rules.

In addition t o the Pennsylvania mine reclamation regulations which require mining companies to post a bond to ensure that reclamation of the mine is completed, OSM oversight data of the Pennsylvania mining program indicate PA DEP is administering a program where active mining sites are, with few exceptions, in compliance with planning, mining, and reclamation standards.34

Reclamation of active mining sites is thorough and proceeds in a contemporaneous fashion. PA DEP's abandoned mine land program restoration is effective in abating safety and environmental problems on previously mined sites. These Pennsylvania programs continue to effectively achieve or exceed the regulatory and reclamation goals of SMCRA.[Footnote 5: 2010 Annual Evaluation Report, U.S. Department of the I nterior, Office of Surface Mining and Reclamation, Pittsburgh Field Division, Harrisburg Office.]

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans. Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06248

- 1 

### Organization 1 

### : Lignite Energy Council 

### Commenter 1 : John W. Dwyer Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The North Dakota Department of Health (NDDOH) regulates the disposal of CCRs as well as the beneficial use of CCPs.3 In particular NDDOH Guideline 11 outlines the specific areas that must
be addressed by any company proposing to beneficially use CCPs. These areas include, but are not limited to, identifying the ash quality and quantity, the proposed use of the ash, site characterizations, potential receptors, how the material will be handled, contingenc y plans in case adverse environmental conditions arise, how the site will be monitored to ensure environmental protection, what will be done when the use of the material is completed, any local health or zoning issues, and site closure and reclamation.4 De pending upon the nature of the project, the guideline requires, among other things, leach analysis; a field simulation that will determine any impact on the environment from initial waste placement; an analysis of any potential impact through continued wea thering, mechanical abrasion, erosion, and fill runoff; and monitoring of surface, groundwater and soil.5 This comprehensive program ensures that the35

beneficial use of CCPs is conducted in a manner which does not adversely impact the
environment.
Coal com bustion products are also used for soil stabilization applications, liquid solidification and for subbase enhancement for haul roads at lignite mines in North Dakota. Fly ash is also used as cement replacement in grout injection to fill abandoned undergrou nd mines in North Dakota. The North Dakota Public Service Commission (PSC) operates the North Dakota Abandoned Mine Land Reclamation Program pursuant to the Surface Mining Control and Reclamation Act. Oversight of the program is conducted by the regional f ield office of the Office of Surface Mining. North Dakota has 600 documented underground abandoned mine lands (AMLs). The PSC utilizes a grout mix that includes fly ash which was reviewed and approved by the NDDOH for use in AML projects. In addition, the PSC requires contractors performing the reclamation of AMLs to test the grout to ensure that it meets specifications established by
NDDOH. 1 Review of North Dakota Regulations, Standards, and Practices Related to The Use of Coal Combustion Products,
Fina l Report, Energy & Environmental Research Center, April 2008. 2 Id.at page 5. 3 See, Chapter 23

- 29 N.D.C.C. (ND Solid Waste Law); Article 33

- 20 N.D.A.C. (ND Solid Waste Management Rules); and Chapter 61

- 28 N.D.C.C. (ND Water Pollution Law).
4 Guideline 1 1

– Ash Utilization for Soil Stabilization, Filler Materials and Other Engineering Uses, ND Department of Health, March 2010.
5 Id.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 65 

### Organization 1 

### : We Energies 

### Commenter 1 : Art Covi Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: COMMENT: We Energies used monofill landfills and followed Wisconsin regulations and approvals for CCP disposal in p lace for that period of time. Obviously, regulations, standards and designs have evolved over time. One important change was the self implementing provisions of NR 538 which facilitated utilization to meet construction needs and schedules as opposed to
ind ividual exemptions for use on a specific project basis. Self implementation was a key supportive feature of the regulation which made beneficial use more acceptable and desirable by36

contractors and engineers.

Response: The Agency acknowledges and appreci ates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Unit VI o f the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR ru les into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant
comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts

inv olved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisi ons.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 1 

### Organization 1 

### : Kentucky Department for Environmental Protection 

### Commenter 1 : R. Bruce Scott Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Ass igned/Due: Other Sections: 4.5 

### Comment Excerpt Text: The Commonwealth of Kentucky currently has the responsibility to oversee the proper management and beneficial reuse of Coal Combustion Residuals within the state. Kentucky recognizes that appropriate a dditional controls are warranted for the management of CCR based on historical practices and monitoring. Regulation of coal combustion residuals should be revised, but the method of regulation should be carefully considered given the possible costs and
ben efits. However, we believe that the management of CCR is best handled at the local and state
level.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.37

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 137 

### Organization 1 

### : Kentucky Department for Environmental Protection 

### Commenter 1 : R. Bruce Scott Commenter Type: State Government Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.7.5.1 

### Comment Excerpt Text: p. 35183: Nevertheless, EPA solicits comment on whether EPA should modify the corrective action requirements under section 3004(x) of RCRA. Commenters sh ould specifically address the issue of how other alternatives could be protective without mandating corrective action as needed for all solid waste management units from which there have been releases of hazardous
waste or hazardous constituents at the fac ility.

The Commonwealth believes that existing programs will provide sufficient protection. 401 KAR 48:300, Section 1 ofthe solid waste regulations states:

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

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

"Section 1. Applicability. The requirements of this adminis trative regulation apply to owners and operators of special waste landfills, Type A special waste landfarming or composting sites or facilities, other special waste sites or facilities at which the cabinet determines groundwater and
surface water monitorin g shall be required, and special waste sites or facilities required to perform corrective action as a result of documented groundwater contamination ..."

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

by

- rule, such as surface impoundments and temporary waste piles.38

The Underground Storage Tanks Branch of the Division of Waste Management regulates releases from subterranean enclosures pursuant to 40 CFR 280. The Superfund Branch of the

same agency regu lates releases from surface tanks and all other releases of hazardous substances not specifically covered by another program.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble disc ussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Age ncy is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 23 

### Organization 1 

### : Kentucky Department for Environmental Protection 

### Commenter 1 : R. Bruce Scott Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 11.1 

### Comment Excerpt Text: No. Even though the four materials vary somewhat in composition and properties, the group should be regulated together as coal combustion residuals. Kentucky treats the group of substances as "special wastes" and "utility wastes" pursuant to 401 KAR Chapter 45 and KRS
224.50

- 760 which states:

"(1) (a) For purposes of this section and KRS 224.46

- 580(7), special wastes are those wastes of high volume and low hazard which include but are not limited to mining wastes, utility wastes (fly ash, bottom ash, scrubber sludge), wastes from coal gasification facilities (vitrified coarse solid residues, prilled or blocked sulfur) approved by the cabinet based on submittal of appropriate testing demonstrating that the wastes are of low hazard, sludge from water treatment
facilities and was tewater treatment facilities, cement kiln dust, gas and oil drilling muds, and oil production brines. Other wastes may be designated special wastes by the cabinet; ..." (our italics).39

For beneficial use purposes, the different properties of the materials would have to be considered by the project Professional Engineer. For example, fly ash is best used in cement production or
other uses for its micro

- sized properties, bottom ash is a good sandblast alternative and makes good roof tile granules; FGD is best in wall board while boiler slag is an excellent roadbase or
structural fill material.

Response: The Agency acknowledges and appreciates the comment. As defined in the rule, the Agency is regulating CCR or coal combustions residuals. The commenter is re ferred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to t he final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06275

- 18 

### Organization 1 

### : Lansing Board of Water and Light (BWL) and Michigan State University (MSU) 

### Commenter 1 : Jeffrey L. Woolstrum Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: E xamine Context Assigned/Due:



### Comment Excerpt Text: A. CCRs Are Expressly Regulated As “Solid Waste” Under Michigan’s Natural Resources And
Environmental Protection Act.

Part 115 of Michigan’s Natural Resources and Environmental Protection Act (“Part 115 ”) [Footnote 5: M.C.L. § 324.11501 et seq.] and the administrative rules promulgated under that act (the “Part 115 Rules”) [Footnote 6: Mich. Admin. Code r. 299.4101 et seq.] impose a comprehensive regulatory scheme upon the collection, transportation, sto rage, processing, and disposal of all solid waste generated or disposed of in Michigan. Part 115’s definition of “solid waste” is similar to RCRA’s, i.e., “garbage, rubbish, ashes, incinerator ash, incinerator residue, street cleanings, municipal and indus trial sludges, solid commercial and solid industrial waste, and [certain] animal waste.” [Footnote 7: M.C.L. § 324.11506(1).] Part 115 divides the universe40

of “solid waste” into four broad categories: (1) household waste; (2) commercial waste; (3)

construc tion and demolition waste; and (4) industrial waste. The “industrial waste” category, which includes all solid waste that is generated by manufacturing or industrial process or that otherwise originates from an industrial site, [Footnote 8 Mich. Admin. Cod e r. 299.4103(n). is further divided into two subcategories: low hazard industrial waste, and all other industrial waste. “Low hazard industrial waste,” which is defined generally as an industrial waste that has a low potential for groundwater contaminatio n when managed in accordance with the Part 115 Rules, expressly includes “coal ash,” [Footnote 9: Mich. Admin. Code r. 299.4103(x).] i.e., the “residue remaining after the ignition of coal, and may include “noncombustible materials,
otherwise referred to a s bottom ash,” and the “airborne residues from burning coal that are finely divided particles entrained in flue gases arising from a combustion chamber, otherwise referred to as fly ash.” [Footnote 10: M.C.L. § 324.11502(6).] Thus, because CCRs are express ly included in the definition of “solid waste,” Michigan’s comprehensive solid waste statutory program fully regulates the management and disposal of CCRs.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of th e technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreov er, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 062 80

- 13 

### Organization 1 

### : South Carolina Department of Health and Environmental Control 

### Commenter 1 : Daphne Neel Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
As discussed in greater detail in the Department's cover letter, South Carolina has a comprehensive regulatory framework for the management of CCRs under the Department's existing authorities.41

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06280

- 3 

### Organization 1 

### : South Carolina Department of Health and Environmental Control 

### Commenter 1 : Daphne Neel Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.2 

### Comment Excerpt Text: This letter provides a general overview of South Carolina's current regulatory structure for CCRs, and why the Department believes it adequately ad dresses CCR management without the necessity of federal regulation. A more detailed document containing specific, technical comments on the proposed rule is attached and made a part of this letter. The technical
comments address issues under both RCRA Subt itle C and D. While the Department does not support regulation under Subtitle C, technical comments on Subtitle C are included to illustrate some of the concerns and questions that have arisen in reviewing the proposed rule.

Response: The Agency acknowle dges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is refer red to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorp orate the CCR rules into state solid waste management plans.42

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy o f the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06280

- 5 

### Organization 1 

### : South Carolina Department of Health and Environmental Control 

### Commenter 1 : Daphne Neel Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: South Carolina currently regulates twelve coal

- burning power plants that manage CCRs through the use of landfills, surface impoundments, and beneficial use determination. Each management strategy is discussed in more detail below.

Response: The Agency acknowledges and appreciates the comment. B ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has respond ed to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to

comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06291

- 2 

### Organization 1 

### : Labadie Environmental Organization 

### Commenter 1 : Ginger Gambaro Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: I live in Missouri which is supposed to be one of the states with decent regulations. I can assure you there may be regulations on the books but they are not being enforced. My home is not far43

fr om a huge 2400 MG very dirty coal

- fired power plant. They promote themselves as being good neighbors but they are far from good neighbors. In fact, EPA issued 4 NOV's in January of this year against Ameren Missouri. But we believed them until we knew bette r. Now we know we need federal oversight and strict guidelines that are standard and consistent across the entire country. Their ash ponds are leaking approximately 43000 gallons of toxic effluent PER DAY since 1992 into the Missouri River. They and the M oDNR have done nothing to correct that. In addition, the plant spews between 25 MM and 45 MM gallons of toxic effluent into the mighty Missouri River everyday. There is no monitoring of toxins. And now they want to construct a 400 acre, 100 feet
tall coal ash landfill in the floodplain of the Missouri River. Groundwater ranges from 2

- 10 feet below the surface. This is very frightening and even though they claim "state of the art" construction methods, I know that in 50 years, or 75 years, or even earlier, that landfill will leak or the Missouri River will flood (it is prone to big floods) and there will be a price to pay. It may not affect me in my lifetime or even my child's but it will affect somebody's life.

Response: The Agency acknowledges and apprec iates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR r ules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 33 

### Organization 1 

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

### Commenter 1 : Paul L. Sloan Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Tennessee has successfully implemented both the Subtitle C and Subtitle D programs. Tennessee has approximately fifty FTEs in its Subtitle Solid Waste Progr am and 65 FTEs in its Hazardous Waste Program. Tennessee has been authorized by EPA to implement the Hazardous Waste Program in

- lieu of the RCRA Subtitle C Program and the state's Solid Waste program has been approved by EPA.

Response: The Agency acknow ledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 34 

### Organization 1 

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

### Commenter 1 : Paul L. Sloan44

Commenter Type: State Government Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 8.6 

### Comment Excerpt Text: The December 2008 ash pond failure in Kingston, Tennessee was not due to a lack of regulations or the chemical properties of fly ash. The TVA Kingston failur e was due to structural failure. TVA's investigation revealed that TVA was aware of the potential structural failure of the landfill via information from its employees and consultants. The TVA Office of Inspector General, July 23, 2009 report notes on page 4, "TVA was aware of 'red flags' that were raised over a long period of time signaling the need for safety modifications to the TVA ash ponds. These 'red flags' were raised by both TVA employees and consultants hired by TVA. Specifically, a 1985 internal memorandum written by a TVA engineer and two 2004 reports by external engineering consultants raised concerns about the stability of the Kingston ash storage
facilities."

This information was not communicated to the regulatory agency. TVA's failure to rep ort its own internal warnings about a pending failure of the landfill to the department did not allow the department to take the actions needed to prevent this incident. The failure of TVA to address these problems resulted in a spill with costs that may e xceed $1.3 billion.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfill s and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not r esponded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no fina l conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 41 

### Organization 1 

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

### C ommenter 1 : Paul L. Sloan Commenter Type: State Government Classification: Substantive Comment Category:45

Current Task: Examine Context Assigned/Due: Other Sections: 8.1 

### Comment Excerpt Text: The extent of damage cases, on a national level, appears relatively minimal when compared with both the quantity and the period of time CCRs have been generated. The extent of risks posed appears minimal based on the current regulatory methodology used by EPA to determine the release potential. Tennessee, like o ther states, has appropriate solid waste regulations in place for CCR management and disposal. The TVA Kingston landfill failure did not occur due to poor regulations but due to failure to acknowledge structural deficiencies and poor operation, particularl y a properly operating drainage system.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 43 

### Organization 1 

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

### Commenter 1 : Paul L. Sloan Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Page 35133, Column 1: “The Agency would implement similar technical controls under RCRA subtitle C or D.
Th erefore a central issue is the adequacy of State Programs.”

Since either option would be protective of health and the environment, there is clearly no technical or scientific justification to incur the higher expenses and much greater regulatory
burden as sociated with the regulation of CCR under Subtitle C. Tennessee's current solid waste regulations already include most of the technical controls proposed except for those regarding surface impoundments. For the record, we regard the effectiveness of our so lid and hazardous waste regulatory programs as equally effective as the equivalent portions of the federal environmental programs.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical standards th e Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.46



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06305

- 3 

### Organization 1 

### : Clean Water Network 

### Commenter 1 : Natalie Roy Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 6.1.1 

### Comment Excerpt Text:
S tate regulation now is minimal or not existent. Some states do require monitoring of contaminated leachate that may be leaving the site. Every one of the coal ash dump sites within the August 2010 study, equipped with groundwater monitoring wells, found co ncentrations of heavy metals such as arsenic and lead exceeding the standards. Therefore it is likely that the number of polluted sites nationwide exceeding federal health

- based standards is significantly higher.

Response: The Agency acknowledges and app reciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06307

- 3 

### Organization 1 

### : Alaska Community A ction on Toxics, et al. 

### Commenter 1 : Sarah B. Petras Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 8.7 6.1.1 3.1.1 

### Comment Excerpt Text: In Alaska’s Interior, coal combustion waste has been disposed of with virtually no restrictions for decades. At the urging of Alaskan residents living near coal ash disposal sites, a public health advocacy organization commissioned an independent analysis of coal ash samples collected in Fairbanks, Alaska. The results of this coal ash analysis (“Coal Ash in Alaska: Our Health, Our Right to Know”) found in almost every case that the levels of toxic chemicals were much higher than background soil samples from Fairbanks. In the coal ash samples, levels of arsenic and vanadium were found at concentrations that may harm human health. Two samples from the University of Alaska Fairbanks coal

- fired power plant show arsenic concentrations more than 100 times higher t han the standard for residential soils set by the EPA. Furthermore, mercury was found at levels 70 times higher than background soils, and at levels high enough to be a potential concern if inhaled in the form of windblown dust.47

This is a matter of prote cting public health. Adverse health effects associated with exposure to arsenic, vanadium, and mercury include cancer, neurological problems, and developmental defects. In order to keep our communities safe and healthy we need to be sure these hazardous
ch emicals from coal ash do not end up in our neighborhoods. However, Alaskans are currently surrounded by these toxics on university land, in public spaces, and throughout residential neighborhoods.

Because the coal ash produced in Fairbanks contains highe r levels of toxic chemicals than background soil, it should not be considered "inert" as is currently the case (“Coal Ash in Alaska: Our Health, Our Right to Know”). Without regulatory improvements, existing waste disposal and reuse practices in Alaska wil l continue indefinitely. Thus the undersigned 11 public interest organizations, representing several thousand Alaskans, respectfully ask the EPA to enforce "Subtitle C" to protect US citizens and their environments from hazardous coal ash.

Response: The A gency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The comm enter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect st ates to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to signifi cant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support an y of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 86 

### Organization 1 

### : Earthjustice et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.2.2 

### Comment Excerpt Text: This survey indicates that some states have regulations already in place, but also indicates that other states have few or no regulations for CCR disposal. This patchwork of regulations strongly48

s uggests that a more uniform approach under Subtitle C is needed.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subt itle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commente r is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support cer tain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusion s on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 17 

### Organization 1 

### : Earthjustice et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Grou p Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: 1. The Failure of States to Regulate Adequately the Disposal of Coal Combustion Waste Supports the Need for Federal Standards under Subtitle C of RCRA.

EPA has identified the adequacy of state regulation of the management of coal combustion residuals (CCRs) as a “central issue” in its determination of whether to regulate CCRs under Subtitle C of RCRA. [Footnote 68: 75 Fed. Reg. at 35, 133.] As discussed below, the glaring inadequacies of state regulatory authority make mandatory federal standards imperative for the protection of human health and the environment. Indeed, EPA’s own reports have documented
extensive deficiencies in state r egulation of coal ash landfills and surface impoundments. Following EPA’s request for comments, we conducted a comprehensive evaluation of the current landscape of state regulation of CCR disposal. Our analyses identify additional significant gaps
in state programs, buttress EPA’s data that indicate state programs are inadequate to protect health and the environment, and further demonstrate why regulation under subtitle C is necessary to guarantee the safe disposal of CCR nationwide.

a. EPA’s Own Reports Document the Substantial Gaps Persisting in State Regulatory49

Programs.

In its May 2000 Regulatory Determination, EPA expressed significant concern about the lack of adequate state regulation of CCR disposal. [Footnote 69: 65 Fed. Reg. at 32,218.] A decade later, many of the identified regulatory gaps persist. Two EPA reports completed after the 2000 Regulatory Determination detail such continuing substantial deficiencies, finding that state regulations routinely lack requirements for essential safeguards f or the disposal of CCR in landfills and surface impoundments. [Footnote 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

- RCRA

- 2006

- 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 ].] In April of this year, EPA updated its state regulatory analysis in the “Regulatory Impact Analysis.” [Footnote 71: Office of Res. Conservation & Recovery, U.S. EPA, Regulatory Impact Analysis for EP A’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 ]).] The findings of these reports, as well as our recent analyses of state regulatory deficiencies, provide a solid basis for regulation of coal ash under Subtitle C of RCRA.

The 2010 RIA , prepared by the EPA’s Office of Resource Conservation & Recovery, illustrates a shocking absence of CCR disposa l requirements across the nation. The report updated the 2005 DPRA Report ’s examination of the regulatory programs of 34 states; both reports found basic safeguards for CCR disposal seriously lacking. Among the key findings of the 2010 RIA : [Footnote 72: 2 010 RIA , at Appendix E, Baseline State Government Regulatory Requirements for CCR Disposal Units in Top

34 Coal Utility States.]

- 85 percent of the states surveyed do not require groundwater monitoring and leachate collection at all surface impoundments (both new and existing).

- 45 percent of the states surveyed do not require post

- closure groundwater monitoring at coal ash surface impoundments.

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

- Over 50 percent of the states surveyed have no requirement for financial assurance for surface impoundments.

- 38 percent of the states surveyed do not require groundwater monitoring at all landfills (both new and existing).

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

- 15 percent of the states surveyed do not require liners, leachate collection systems, or financial
assurance for coal ash landfills.

The 2006 DOE/EPA Report , which reviewed in detail the regulatory framewo rks of 11 states, also documented continuing substantial deficiencies in state regulation of CCR management. The report found that between 1999 and 2005 none of the states surveyed tightened regulatory controls on CCR landfill disposal; that is, no state a dded specific requirements governing liners, groundwater monitoring, leachate collection, closure and postclosure, siting, and financial50

assurance since the 2000 Regulatory Determination. [Footnote 73: 2006 DOE/EPA Report , Table 22.] In addition, the repor t identified four states (Alabama, Florida, Illinois, and Texas) that had relaxed certain CCR disposal controls since 1988. [Footnote 74: Id . The 2006 DOE/EPA Report also identifies nine states that reportedly tightened certain regulatory controls since 19 88. However, the majority of such tightenings appear to have taken place before the 2000 Regulatory Determination.] According to the EPA, [Footnote 75: 2010 RIA , Ex. 3D.] these four states collectively were responsible for generating 26.4 million tons of C CR, approximately 19% of total CCR generation in 2005. [Footnote 76: All references to percentage of total CCR in the U.S. are based on 2005 CCR generation data presented in Exhibit 3D of the 2010 RIA . In 2005, a total of 141.2 million tons of CCR was gene rated 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).]

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

- producing st ates evaluated failed to mandate one of the most basic mechanisms for regulating waste disposal, namely the authority to permit CCR landfills and surface impoundments. Of the 11 states evaluated, five exempted CCR landfills from solid waste permitting requ irements. Alabama excludes all CCR from its definition of solid waste; thus, solid waste permits are not required for CCR disposal. Similarly, Ohio exempts the large majority of its CCR by classifying it as “nontoxic,” and
landfills at which nontoxic CCR i s disposed do not require solid waste permits. Florida, Illinois, and Texas all exempt on

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

- site disposal, the exemption of on

- site units from permitting creates a significant gap. [Footnote 77: 75 Fed. Reg. 35,128, 35,158.] These five states generated 36.8 million tons of CCR in 2005

— over 26 percent of the total CCW generated in the United States that year. The report ident ifies an additional three states (Colorado, Maryland, and Utah) that exempt on

- site CCR landfills from state solid waste permitting requirements. [Footnote 78: 2006 DOE/EPA Report , tbl. 20.] In addition, the report only identified one state (Pennsylvania) that required solid waste permits for all surface impoundments receiving CCR. [Footnote 79: Id. at A

- 18.] Based on these exemptions and exclusions, the report concluded that approximately 30 percent of all disposable coal ash generated in the United States is potentially totally exempt from solid waste permitting requirements. [Footnote 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
Fe d. Reg. at 35,151.] 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), [Footnote 81: Id. tbl. 9.]these are no substitute for a solid w aste operating permit, without which the dangers posed by the mismanagement of coal ash are likely to have a significant negative impact on human health and the environment.

In addition to these wholly unacceptable gaps in the regulation of coal ash dispo sal that leave approximately 30% of the waste stream unregulated, many of the states in which solid waste permits are required for CCR management units do not make mandatory those regulatory controls that are needed to ensure adequate environmental protect ion. For landfills, the 2006 DOE/EPA Report found that:

- No state surveyed requires a composite liner for all coal ash landfills. [Footnote 82: Id. tbl. A.6.]51

- 5 of the 11 states surveyed have no liner requirement for coal ash monofills. [Footnote 83: Id

. ]

- 5 of the 11 states surveyed do not require groundwater monitoring at coal ash landfills. [Footnote 84: Id. tbl. A.13

. ]

- No state surveyed requires quarterly groundwater monitoring for the active life of a coal ash landfill. [Footnote 85: Id. ]

- 5 of the 11 states surveyed do not require leachate collection systems at coal ash landfills. [Footnote 86: Id. tbl. A.15

. ]

The findings pertaining to surface impoundments, which pose even greater risks than landfills, [Footnote 87: See Office of Solid Waste & Emergency Response, EPA, Human and Ecological
Risk Assessment of Coal Combustion Wastes 2

- 4 (draft) (Apr. 2010) [hereinafter 2010 Risk Assessment].] revealed even more significant gaps in state regulatory authority:

- Only one of the states survey ed requires solid waste permits for all coal ash surface impoundments. [Footnote 88: 2006 DOE/EPA Report , tbl. A.4.]

- Only one of the states surveyed requires groundwater monitoring at coal ash surface impoundments. [Footnote 89: Id. tbl. A.13.]

- Only on e of the states surveyed requires a leachate collection system at coal ash surface impoundments. [Footnote 90: Id. tbl. A.15.]

- Only one of the states surveyed requires corrective action for coal ash surface impoundments. [Footnote 91: Id. tbl. A.19(only the five pilot states were surveyed for corrective action requirements).]

- Only one of the states surveyed requires financial assurance for coal ash surface impoundments. [Footnote 92: Id. tbl. A.22. (only the five pilot states were surveyed for financial assurance requirements).]

- Only three of the states surveyed require liners at coal ash surface impoundments. [Footnote 93:
Id. tbl. A.6.]

- Only two of the states surveyed have siting restrictions for coal ash surface impoundments restricting their dist ance from public water supply wells, other potable water supplies, inhabited dwellings, floodways, wetlands, and the groundwater table. [Footnote 94: Id. tbl. A.20 (only the five pilot states were surveyed for siting restrictions).]

Even the most recent d ata submitted to EPA by the states themselves indicate that basic safeguards are simply not required by the majority of states. According to a survey by the Association of State and Territorial Solid Waste Management Officials (ASTSWMO), only 33 percent of the states responding to the survey impose a requirement that coal ash surface impoundments have a liner, only 14 percent of the states require leachate collection at coal ash ponds, and only 31 percent of the states require financial assurance for coal a sh ponds. [Footnote 95: Association of State and Territorial Solid Waste Management Officials (ASTSWMO) Survey (Feb.

– Mar. 2009), (Docket ID No. EPA

- HQ

- RCRA

- 2009

- 0640

- 0025), available at www.regulations.gov.] It is not clear from the ASTSWMO survey how many states responded, so these percentages may, in fact, overestimate the number of states that have regulatory safeguards.

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

As troubling as the regulatory deficiencies in EPA’s reports are, a more comprehensive analysis52

of state regulations reveal that the situation is much worse than previously understood. Both of EPA’s reports make clear that gross deficiencies in state regulatory authority persist, but even these reports fail to paint a complete picture of the abysmal state of current CCR management. For example, the 2006 DOE/EPA Report ’s conclusion that “improved disposal unit management practices and State application of environmental regulations appear to be occurring” [Foo tnote 96: Id. at 67] is based largely on self

- survey data from a narrow sample of permitted new or expanded units in 11 states. As EPA has noted, new management units only represent about 10 percent of all disposal units; it will take decades to replace th e large collection of older units. [Footnote 97: 75 Fed. Reg. 35,128, 35,151.] In addition, even if it can be assumed that the new permitted units described in the 2006 DOE/EPA Report are an indication of future disposal practices

— which is questionable

— it is clear that the problem of CCR mismanagement is far
from solved.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subt itle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commente r is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support cer tain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusion s on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 19 

### Organization 1 

### : Earthjustice et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Grou p Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: As discussed above, the 2006 DOE/EPA Report concluded that approximately 30 percent of the

net disposable CCR generated in the United States is potentially totally exempt from regulation under state solid waste programs. While alarming in itself, this figure is actually an underestimation of the amount of potentially exempt CCR because it excludes the percenta ge of CCR that is totally exempt from regulation based on future beneficial reuse. According to EPA, approximately 50.1 million tons of CCR were beneficially reused and 10.5 million tons were53

dumped into mines in 2008, representing 45 percent of the total CCR generated that year. [Footnote 100: 75 Fed. Reg. at 35,151.] Thus, well over half of all CCR generated in the United States is potentially exempt from solid waste regulation, either excluded completely from regulation (as in Alabama) or excluded by vir tue of its future beneficial reuse.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal o f CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is
also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical req uirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those

progra ms and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 20 

### Organization 1 

### : Earthjustice et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 9.3.1 

### Comment Excerpt Text:
The 2010 RIA likewise fails to express fully the deficiencies that plague the current landscape of state CCR disposal regulation. Of particular sig nificance, the report drastically underestimates the inadequacy of state regulations by ignoring exemptions from and opportunities for variance of state regulatory requirements and by failing to distinguish between the mandatory requirement
of essential sa feguards 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” [Footnote 101: 2010 RIA , Appendix E] ignores the fa ct that Alabama and Utah exempt CCR landfills from groundwater monitoring and engineering control requirements (despite the fact that such exemptions were documented in the 2006 DOE/EPA Report ), that Ohio exempts its “nontoxic” CCR from such requirements, that Indiana exempts from certain requirements CCR that is disposed of at certain classes of landfill, and that five states exempt on

- site CCR disposal from all requirements. In addition, our review of state regulations found that at least 13 states allow state regulators to grant variances from or waivers54

of regulations governing CCR disposal, and an additional five states leave the question of whether groundwater monitoring at CCR landfills is necessary up to the discretion of state regulators. Indeed, ev en the 2006 DOE/EPA Report documented 52 requests for variances from CCR disposal requirements, of which 47 were granted by state regulators [Footnote 102: 2006 DOE/EPA Report , tbl. 23.] Nevertheless, the 2010 RIA ignores this distinction, thereby allowing for gross exaggerations of the scope and effectiveness of state programs.

As EPA’s own reports have revealed, the discretion given to state regulators and the variances that they subsequently grant may significantly compromise the safety of a waste dispo sal unit. For example, West Virginia regulators waived the liner requirement for a leachate collection pond at two facilities, [Footnote 103: Id . at 57.] cover requirements at two structural fill sites,
and allowed the construction of a landfill over an un derground mine. [Footnote 104: Id . at 66.] Indiana regulators allowed the use of ash as a liner and cover at three facilities and waived the cover requirement at a second landfill. [Footnote 105: Id . at 58.] Georgia regulators waived entirely the leachate collection and treatment during the post

- closure care period and daily cover; [Footnote 106: Id.] and Ohio regulators waived the cover requirements on two FGD sludge ponds. [Footnote 107: Id at 59.] These variances reveal that when state law gives regulato rs discretion to waive basic safeguards such as liners and cover, the states use that discretion liberally.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 21 

### Organization 1 

### : Earthjustice et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:55



### Comment Excerpt Text: 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, includ ing the specific requirements that states have in place to regulate CCRs and the extent to which such requirements apply to older, existing units. We have reviewed the regulatory programs of 37 states, looking specifically at whether states have imposed re quirements to address: (1) groundwater monitoring; (2) unit liners; (3) leachate collection systems; (4) financial assurance; (5) post

- closure monitoring and maintenance; and (6) extent of permitting requirements

— issues EPA has identified as having particu lar relevance to
its decision

- making process. [Footnote 108: 75 Fed. Reg. at 35,157.] Our analyses of these issues provide an up

- to

- date and more comprehensive understanding of the significant regulatory gaps that currently exist in state programs. (The fu ll analysis is set forth in Attachment 4 to our comments.) Our conclusion is that these programs do not and cannot adequately protect health and the environment from the dangers posed by CCR disposal. Such gaps illustrate the necessity for EPA to promulgat e expeditiously mandatory minimum federal standards under subtitle C of RCRA for the safe disposal of CCR.

[see original comment for Table 1: Overview of Mandatory State Requirements for CCR Disposal ; organized by requirement and applicability to landfill s and surface impoundments ]

The above table is a damning indictment of current state of regulatory programs, revealing a widespread absence of mandatory basic safeguards. For example:

- Only 4 states (comprising less than 4 percent of the CCR generated i n 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 st ates (comprising 7 percent of the CCR generated in the U.S.) require composite liners for all new landfills; and

- Only 4 states (comprising 19 percent of the CCR generated in the U.S.) require composite liners for all new surface impoundments.

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

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

— Alabama, New Mexico, and Utah [Footnote 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).]

— exempt coal ash completely from regulation as a solid waste, leaving the disposal of CCR virtually unregulated. In addition, Ohio excludes virtually all CCR f rom regulation by classifying it as “nontoxic” and, therefore, exempt. [Footnote 110: Ohio Admin. Code 3745:27

- 01(S)(23) (2010).] Texas excludes all coal ash that is disposed of on

- site (defined as anywhere within 50 miles of the place of generation) or de stined for beneficial reuse (the vast majority the state’s CCR) from regulation [Footnote 111: 30 Tex. Admin. Code §§ 335.2(d); 335.1(138)(H) (2010).] In these states, which together generate approximately 33.4 million tons of CCR each year (almost a quart er of total CCR generated in the U.S.), none of the basic safeguards such as groundwater monitoring that EPA recognizes as necessary are required.56

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
techn ical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ec ause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D reg ulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 27 

### Organization 1 

### : Earthjustice et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 9.3.1 

### Comment Excerpt Text: d. The Results of EPA’s Analys es 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. [Footnote 118: 2010 RIA , Appendix E.] 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 exempts from such requirements those units that are located on

- site at a power plant, it would be inaccurate to characterize groundwater monitoring at landfills as a minimum requirement. A regulatory baseline exists only where all units must meet certain minimum requirements. Thus, the “minimums” listed in Appendix E to the 2010 RIA are more properly
characterize d as potential requirements

— standards that might or might not apply to any particular disposal unit.

The yes/no dichotomy utilized in Appendix E both overstates and oversimplifies regulatory requirements for the 34 state programs it attempts to summarize . For example, Exhibit E1 answers “Yes” for whether groundwater monitoring of CCR landfills is required in Colorado. While some landfills in Colorado may in fact require such monitoring, where CCR is disposed of

on

- site, Colorado’s waste management regulat ions do not require groundwater monitoring.57

[Footnote 119: 6 CO ADC 1007

- 2:1

- 1.4(1).] 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 regu latory requirements. Such oversimplifications are made with respect to the majority of states programs assessed in the 2010 RIA . Thus, EPA vastly overestimates the adequacy of current state regulation of CCR disposal.

Our independent review of state regul atory authority reveals that the actual “baseline” of state regulation of CCR disposal is woefully inadequate. The following discussion and side

- by side comparison of the discrepancies between EPA’s characterization of baseline state regulatory requirement s and our analysis of such requirements demonstrates the shortcomings of the 2010
RIA ’s assessments as well as the lack of the minimum requirements necessary for the safe disposal of CCR. Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a p resentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid w aste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwis e relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage case s. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 41 

### Organization 1 

### : Earthjustice et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
3. Proliferation of D isposal Units Constructed and Operated without the Basic Safeguards Necessary to Prevent and Detect the Release of Contaminants.

The failure of states to require basic safeguards has resulted in the proliferation of disposal units constructed and operate d without the basic safeguards necessary to prevent and detect the release
of contaminants.58

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, pa rticularly surface impoundments, lack liners and groundwater monitoring systems. The 1999 Report to Congress reported that 74 percent of the surface impoundments and 43 percent of the landfills constructed
before 1995 had no liners or soil

- only liners and that 62 percent of the surface impoundments and 15 percent of the landfills lacked groundwater monitoring. [Footnote 183: 65 Fed. Reg. 32,216.] Because these data were based on a voluntary industry survey of 181 facilities (less than a third of the operati ng disposal units) conducted by the Electric Power Research Institute, it is likely that the controls were overestimated when applied to the entire universe of disposal units. [Footnote 184: 2010 Risk Assessment, at 1

- 2 (citing Electric Power Research Inst itute (EPRI) Comanagement Survey).] Another voluntary survey by the Utility Solid Waste Activities Group of 56 permitted units constructed or expanded between 1995

– 2004, revealed a much higher usage of liners and groundwater monitoring, but the data do lit tle to change the percentage of units with basic controls since the new permitted units constitute less than 5 percent of the universe of operating landfills and impoundments. [Footnote 185: EPA & U.S. Dep’t of Energy, Coal Combustion Waste Management at L andfills and Surface Impoundments, 1994

- 2004,
DOE/PI

- 0004, 2006 at 31

- 36.]

There is no reason to expect a dramatic improvement in the overall picture of basic controls at coal ash disposal sites. As described in section III.B.1.c of these comments, supra , most states still do not require the installation of liners and groundwater monitoring and other basic safeguards. In fact, to reiterate, approximately 76 percent of the coal ash currently generated in the United States is managed in states that do not r equire groundwater monitoring at either existing or new surface impoundments. Monitoring of groundwater around CCR disposal unit is the single most important safeguard to prevent the poisoning of drinking water sources from the deadly constituents in CCR. But other critical safeguards are missing as well at a majority of coal ash disposal units. EPA in its preamble describes some of the available data. The docket contains additional detailed data concerning surface impoundments, informed by the response of utility companies to EPA’s information request letters.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 5 

### Organization 1 

### : Earthjustice et. al

. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group Classification: Substantive Comment Category:59

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

o State Regulations are Grossly Deficient in the Majority of States

Our thorough analysis of the state regulations reveals that most states fail to require essential safeguards for landfills and surface impoundments disposing of coal ash, including liners, groundwater monitoring, leachate collection, dust controls and financial assuran ce. The majority fail to prohibit the placement of coal ash in water tables, wetlands, unstable areas and floodplains.

EPA’s own analyses in 2005, 2006 and 2010 reveal that states have not improved their regulations to close these gaps over the last decad e. EPA even acknowledges that, based on severe and entrenched state resistance to regulating ash, the Agency expects only 48 percent of the total amount generated in the US to be governed by stricter state regulation, if these regulations are not made mand atory under subtitle C. Moreover, we include in our comments a thorough, up

- dated analysis of state regulations in 37 states, comprising 98 per cent of the coal ash generated nationally. Our analysis reveals a far grimmer picture of state regulatory progra ms than is contained in EPA’s analyses.

These regulatory failure have left the public exposed to pollution that is dangerous and illegal.
Part 257.3

- 4 of Subtitle D, which is supposed to guide state programs, defines coal ash ponds or
landfills that conta minate groundwater outside their perimeter as “open dumps” that must be closed or cleaned up, subject to narrow exceptions. Our comments show that dozens of ash disposal sites have violated these standards (which are based on drinking water limits) with li ttle consequence, and without serious corrective action.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D ru le for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is
also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to
comments tha t pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the ade quacy of those programs and is not relying on state programs to support any of the final rule’s provisions.60



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06316

- 3 

### Organization 1 

### : Earthjustice et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: [Copy of November 2007 report prepared by Plains Justice: "Iowa Coal Combustion Waste Disposal]

Response: The Agency acknowledges and appre ciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant
comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts

in volved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provis ions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06340

- 2 

### Organization 1 

### : Alaska Community Action on Toxics (ACAT) 

### Commenter 1 : Pamela K. Miller and Sarah B. Petras Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Exami ne Context Assigned/Due: Other Sections: 8.7 6.1.1 

### Comment Excerpt Text:
Health Concerns

For decades, coal

- fired power plants have dumped their coal ash into unlined ponds and landfills, resulting in dozens of polluted drinking water supplies and spills into our rivers and streams. Communities across the country are routinely put at an elevate d risk of cancer, organ damage learning disabilities, birth defects and other illnesses due to coal ash contamination.61

In Alaska, coal ash has been disposed of with minimal restrictions for decades, and reuse of coal ash has been encouraged because of th e sheer quantity of this material. Alaskans have been repeatedly assured by industry and regulatory agencies that coal ash is a non

- toxic substance that is safe to use throughout the community and at home

— even in garden soil. Such widespread use
of a hazar dous material may pose serious health risks, yet there is no publicly available, up

- to

date information on what is in Alaska’s coal ash.

In June 2010, at the request of concerned local residents, a sampling project was conducted in the
Fairbanks area in a n effort to determine the composition of Alaska’s coal ash and whether it may be hazardous to public health. Researchers collected samples from sources of coal ash and sites with disposed and reused coal ash, such as residential fill piles and road surfaci ng areas of concern to local citizens. The samples were analyzed for a range of metals, and preliminary findings show that numerous toxic elements are present in Fairbanks, AK coal ash. All of the coal ash samples contained detectable levels of the element s aluminum, antimony, arsenic, barium, cadmium, cobalt, chromium, manganese, mercury, nickel, thallium, uranium, vanadium, and zinc. Most concerning, levels of arsenic and vanadium were found at concentrations that may harm human health.

Coal ash is extre mely hazardous, yet currently it is less strictly controlled than household garbage. The EPA must adopt enforceable, federal safeguards, not suggested guidelines that will protect our communities.

Response: The Agency acknowledges and appreciates the comm ent. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preambl e for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into stat e solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that ar e otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts
involved in the d amage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06355

- 6 

### Organization 1 

### : Birchwood Power Partners, L.P. 

### Commenter 1 : Julie Caiafa Commenter Type: Electric Utility Facility Classification: Substantive62

Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: • Virginia operates a solid waste management program that complies with RCRA Subtitle D and the state has successfully regulated CCRs as an industrial waste under the state program. Birchwood agrees with the VDEQ that the state has a strong s olid waste program that has successfully regulated coal ash Virginia.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the comm enter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support ce rtain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusio ns on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06356

- 4 

### Organization 1 

### : U.S. Chamber of Commerce 

### Commenter 1 : William L. Kovacs Commenter Type: T rade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: IV. State Regulation Is Protective Of Health And The Environment.

A. The U.S. Chamber supports smart and efficient State regulation of CCR disposal sites. We concur with the States that argue first that the data does not clearly demonstrate CCRs pose a threat to human health and the environment, and second that current regulatory programs are
sufficient.63

B. As EPA notes:

In September 2008, the Environmental Council of the States (ECOS) issued a resolution...a federal regulation is not necessary. The 2008 ECOS resolution was revised in March 2010 and calls upon EPA to conclude that additional federal CCR regulations would be duplicative of most state programs, are unnecessary, and should not be adopted. See 75 Fed. Reg. at 35143

- 144.3 EPA fails to describe or addresses the specific bases of the States’ contention that federal regulation is unnecessary. Instead, EPA claims fed eral regulation is needed to “address the many problems that have occurred, and are likely to occur in the future.” See 75 Fed. Reg at 35221. However, the record is bare of facts demonstrating that “problems”, however defined, are “likely”, however defined , to occur in the future. EPA further claims it “does not believe that [State regulation] is at all acceptable, and that national regulations...needs (sic) to be promulgated.” Id. Yet, this claim too is entirely unsupported 3 See LINDA LUTHER,
CONGRESSIONAL RESEARCH SERVICE, REGULATING COAL COMBUSTION WASTE DISPOSAL: ISSUES FOR CONGRESS, 20 (2010)(describing State regulators’ concerns regarding EPA’s proposed CCR rules). by citations to the record. See 75 Fed. Reg. at 35159. Therefore, EPA has failed to demon strate the evidence supports expanded federal powers and more federal regulation

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulga ting this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore

, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not re sponded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06360

- 15 

### Organization 1 

### : ARIPPA 

### Commenter 1 : Jeff A. McNelly Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 12.1.1.4 4.1.1 

### Comment Excerpt Text:64

EPA has often stated that its regulations must be based on “sound science.” The experience of states like Pennsylvania that have longstanding and sophisticated regulatory programs for the beneficial use of CCPs, as well as the recommendations of the National Research Council Committee on Mine Placement of Coal Combustion Wastes, provides a sound scientific basis for regulating the management and beneficial use of CCPs under Subtitle D of RCRA. These proposed regulations should not be used as a pretext for a policy decision further limiting coalfired generation of electricity in the absence of an express Congressional directive.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of C CR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is
also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requir ements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those

programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06360

- 56 

### Organization 1 

### : ARIPPA 

### Commenter 1 : Jeff A. McNelly Commenter Type: Trade Association Classification: Substantive
Comment Cat egory: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
In 2009

- 2010 The Environmental Council of the States (ECOS) wrote to EPA stating the following:

“ECOS Agrees with U.S. EPA’s finding in the 2005 study previously cited that “the regulatory infrastructure is generally in place at the state level to ensure adequate management of these wastes” and believes that states should continue to be the principal regulatory authority for regulating CCW as they are best suited to develop and implement CCW regulatory programs tailored to specific climate and geological conditions designed to protect human health and the environment;65

Believes that the adoption and implementation of a federal CCW regulatory program would create an additional level of oversight that is not warranted, duplicate existing state regulatory programs, and require additional resources to revise or amend existing state programs to conform

to new federal regulatory programs and to seek U.S. EPA program approval;

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating thi s subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the co mmenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclus ions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06360

- 57 

### Organization 1 

### : ARIPPA 

### Commenter 1 : Jeff A. McNelly Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.1 

### Comment Excerpt Text: Therefore ECOS calls upon U.S. EPA to conclude that additional federal CCW regulations would be duplicative of most sta te programs, are unnecessary, and should not be adopted, but if adopted must be developed under RCRA Subtitle D rather than RCRA Subtitle C, and calls upon U.S. EPA to begin a collaborative dialogue with the states to develop and promote a national
framewo rk for beneficial use of CCW including use principles and guidelines, and to accelerate the development of markets for this material.”

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the prea mble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical standard s the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.66

The commenter is referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.



### Comme nt Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06360

- 58 

### Organization 1 

### : ARIPPA 

### Commenter 1 : Jeff A. McNelly Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
As ECOS conclude s, the states have devised effective regulatory schemes for managing coal
combustion residuals in accordance with state

- based regulatory schemes promulgated in
accordance with Subtitle D.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06384

- 9 

### Organization 1 

### : Public Utilities Commission of Ohio 

### Commenter 1 : Rebecca L. Hussey Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.2 

### Comment Excerpt Text:67

The Ohio EPA has successfully administered CCR facility oversight and enforcement over the years. As such, the PUCO does not believe that any regulation of CCRs under RCRA S ubtitle C is warranted. The PUCO feels that it is prudent and necessary to take these potential circumstances into account when considering any final rule on the regulation of CCRs.

Response: The Agency acknowledges and appreciates the comment. The com menter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a prese ntation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise r elevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06388

- 2 

### Organization 1 

### : Louisiana Public Service Commission 

### Commenter 1 : Eve Kahao Gonzalez Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3. 1 10.1.1 

### Comment Excerpt Text: I understand that numerous State environmental agencies have already expressed their opposition to the regulation of CCRs under RCRA's hazardous waste rules, arguing that CCRs should instead be regulated as non

- hazardous was te under RCRA Subtitle D. The States have taken this position because regulation as non

- hazardous waste would preserve and expand the beneficial use of CCRs, and because the States already have the regulatory infrastructure in place to ensure
the safe mana gement of these materials. Furthermore, CCRs exhibit no hazardous characteristics, and regulation of these materials as "hazardous" would prevent the beneficial uses of the material due to the stigma that would attach.

The Commission believes the same to be true for Louisiana. As Louisiana Department of Environmental Quality ("LDEQ") Secretary Harold Leggett noted in correspondence to you dated May 29, 2009:68

"The LDEQ has successfully regulated [coal combustion waste ("CCW")] by regulation since
1983. Cur rent EPA regulations do not provide standards for managing and disposal of industrial solid waste such as CCW. However, the LDEQ has developed an industrial solid waste program and has promulgated regulations based upon LDEQ's EPA

- approved municipal landfi ll regulations.

The data we have seen indicates that CCW would not qualify as characteristic hazardous waste under RCRA Subtitle C. Levels of toxic constituents and permeability are both very low. Nevertheless, Louisiana's regulations require that landfil ls that accept CCW must have liners and groundwater monitoring. All available soil, groundwater and surface monitoring data show that our current regulatory scheme is fully protective of those media.

Regulating CCW under RCRA Subtitle C would provide no c lear advantages to Louisiana's solid waste or hazardous waste programs that cannot be accomplished under a RCRA Subtitle D regulatory approach. On the contrary, regulation of CCW under RCRA Subtitle C would needlessly complicate Louisiana's existing progra ms and increase costs to the regulated community. Under Louisiana law, hazardous waste and nonhazardous solid waste are distinct types of wastes. A federal hybrid approach that would designate a CCW a hazardous waste, but allow it to be managed at a solid waste disposal facility, would conflict with Louisiana law.

Furthermore, a large portion of the fly ash CCW generated in Louisiana is sold as a by

- product, replacing Portland cement. This use avoids the emission of carbon dioxide that would result from
th e production of Portland cement."

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.

The commenter is also referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.69



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 4 

### Organization 1 

### : Duke Energy 

### Commenter 1 : Mike Stroben Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Any Subtitle D regulatory program for CCR, however, must include a mechanism for the administration and implementation of Subtitle D rules by the states. As EPA itself has concluded, many states already have well

- established and protective regulatory contr ols for CCR.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 68 

### Organization 1 

### : Duke Energy 

### Commenter 1 : Mike Stroben Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.4.7 

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

- site. If Duke Energy determines an impact to groundwater has occurred a t one of its facilities, the appropriate federal and/or state regulatory agency is notified. Duke Energy then works with those regulators in determining the appropriate steps to be taken to mitigate any impact to groundwater. Duke Energy has been involved and worked with the North Carolina Department of Environment and Natural Resources, Indiana Department of Environmental Management, Ohio EPA, and Kentucky Department of Environmental Protection in determining the appropriate remediation steps to be taken w hen an impact to groundwater has been detected. Further, Duke Energy has taken measures to help reduce or eliminate any potential future groundwater impacts at other Duke Energy facilities. Duke Energy has voluntarily initiated groundwater monitoring aroun d active CCR surface impoundments used to dispose of coal ash in all of the states in which it operates. The involvement and interaction that Duke Energy has with the various regulatory agencies in the states in which it operates demonstrates how a state

- i mplemented, non

- hazardous waste program70

for CCR under Subtitle D will be protective of human health and the environment.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussio n for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments,
as well as the technical criteria for these units that is discussed in Unit VI. The commenter is
also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06411

- 11 

### Organization 1 

### : Alabama Department of Environmental Management (ADEM) 

### Commenter 1 : Gerald Hardy Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 7.4.1 

### Comment Excerpt Text: It is our firm contention that Alabama's solid waste program is mor e than sufficient to adequately implement the regulatory requirements in the proposed Subtitle D option. While there may be resource issues that come to bear related to the potential increase in workload due to this proposed option, the same concerns would exist with the Subtitle C option. In fact, as stated earlier, the demands for State implementation of the Subtitle C option would be even more taxing on our existing resources.

Response: The Agency acknowledges and appreciates the comment. The comment er is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments,
as well as the technical criteria for these units that is discussed in Unit VI. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06415

- 1 

### Organization 1 

### : The Virginia Coal Association, Inc. (VCA) 

### Commenter 1 : John T. Heard Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.3 

### Comment Excerpt Text: Virginia's Regulat ion of Coal Ash Disposal and Reuse71

Coal mined in Virginia is used in the steel manufacturing process or burned to generate electricity. Virginia coal is burned by a number of power plants located in our state. The recycling/reuse or disposal of coal combu stion residuals (CCRs) that are generated by these power plants is governed by a comprehensive coal combustion waste regulatory program administered by the Virginia Department of Environmental Quality (DEQ). The Virginia Solid Waste Management Regulations (VSWMR) set out criteria that must be complied with by facilities that store, treat, or dispose of solid waste. Facilities that dispose of coal combustion waste (CCW) in a landfill are required to meet the industrial landfill provisions of the VSWMR,
to ob tain a permit in accordance with those regulations, and are subject to regular inspection by solid waste compliance staff. These industrial landfill requirements provide standards for siting, design, operation, monitoring, closure, and post

- closure of the landfill. The VSWMR also allow for certain exclusions and exemptions from CCW's regulation as a solid waste when the material is beneficially reused (i.e., when used in manufacturing of products, used as base/sub

- base fill under footprint of road, building , or other structure, and other uses as excluded/exempted by this regulation). Additionally, Virginia has a separate regulation, the Coal Combustion By

- Products Regulation, which provides regulatory criteria for the use, reuse, or reclaiming of these mater ials by applying them to or placing them on land in a manner other than addressed in the VSWMR.

Coal combustion by

- products (CCB) are defined as residuals, including fly ash, bottom ash, boiler slag, and flue gas emission control waste produced by coal

- fi red electrical or steam generating units. CCW's managed within surface impoundments and lagoons arc regulated under state water control laws. These units are permitted and inspected under Virginia's water program.

As DEQ's Director David Paylor noted in h is September 30, 2009 letter to you, "our regulations provide requirements for coal ash management as a solid waste, including appropriate criteria for disposal units. These regulations also allow for its beneficial reuse in a manner that is protective
of human health and the environment. Virginia, like many states, has a strong solid waste management program. Our solid waste statutes include enforcement authorities, as was demonstrated to EPA when we obtained approval for our municipal solid waste program (a RCRA subtitle 0 program). Virginia has an ongoing process to evaluate its Subtitle D program including regulations that allow for the beneficial use of waste materials. We are committed to continuously improving the process." In fact, the DEQ has contin uously reviewed and updated Virginia's Coal Combustion By

- Product Regulations since their initial promulgation in the early 1990's to ensure their effectiveness. The most recent review took place in 2009.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments,

a s well as the technical criteria for these units that is discussed in Unit VI. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.72



### Co mment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 23 

### Organization 1 

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

### Commenter 1 : Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.7.5 

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

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments,

a s well as the technical criteria for these units that is discussed in Unit VI, in particular the discussion on groundwater monitoring and corrective action requirements. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06418

- 6 

### Organization 1 

### : Virginia Independent Power Producers, Inc. (VIPP) 

### Commenter 1 : August Wallmeyer Commenter Type: Trade Associ ation Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Enhancements to CCR Regulations are Best Left to the States; Virginia’s CCR Regulatory
Framework has Proven Effective and Protective of Human Health and the Environment

VIPP strongly agrees with the Virginia Department of Environmental Quality, (DEQ) that any required improvements to the regulatory management of CCRs are best left to the individual states. Like DEQ, VIPP believes that re gulation under Subtitle C would be inappropriate and
unwise.

Virginia's solid waste management program is protective of the environment and human health and complies with RCRA Subtitle D. The Virginia program has an extremely successful record of regulati on of CCRs in the Commonwealth.73

Virginia's program has consistently demonstrated the ability to conduct an effective compliance and enforcement program, as affirmed by EPA’s feedback during the State Review Framework process. Simply stated, there is no ne ed or justification for disrupting an active ongoing, effective CCR regulatory apparatus in Virginia

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s ra tionale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments,
as well as the technical criteria for these units that is discussed in Unit VI. The commenter is also referred to Unit IX of the preamble for a di scussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06422

- 7 

### Organization 1 

### : Dynegy Inc 

### Commenter 1 : Ben C. Trammell Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.2.2 

### Comment Excerpt Text: Additionally, more stringent state program requirements must still be met. Indeed, Subtitle C regulation arbitrarily ig nores that recently constructed surface impoundments and landfills are lined and may have leachate collection systems due to state requirements. For example, Dynegy's Danskamrner facility landfills CCRs not beneficially reused in an onsite double

- lined lan dfill that is subject to stringent New York State Department of Environmental Conservation requirements, including leachate collection, groundwater monitoring and permitting. Similarly, since the early 1990's Dynegy has constructed surface impoundments at four of its 1llinois facilities with each of these impoundments lined and subject to Illinois Environmental Protection Agency groundwater monitoring requirements.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred t o Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments,
as well as the technical criteria for these units that is discussed in Unit VI. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06424

- 10 

### Organization 1 

### : Garrett & Moore, Inc. 

### Commenter 1 : Bernie Garrett Commenter Type: Other Company Classification: Substantive74

Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.7 7.4.2 

### Comment Excerpt Text: Consideration for Existing CCR Surface Impoundments and Ex isting CCR Landfills

Constructed with Engineered Liner Systems Obviously, the focus of the proposed rules are the older, unlined, existing CCR surface impoundments that were constructed 20 or more years ago absent of today’s environmental rules and const ruction standards. However, many existing CCR surface impoundments and existing CCR landfills have been permitted and constructed under current environmental rules that have required liners, leachate collection systems, and other
modern controls. The liner s and leachate collection systems in these modern facilities were approved by state regulatory agencies and were deemed protective of human health and the environment. However, in many cases the liner systems, leachate collection systems, or other
controls , may not match the specific design criteria in EPA’s proposed rule. There should be provisions in EPA’s rules, allowing for the states, when adopting EPA’s rules, to “grandfather” these modern existing CCR surface impoundments and existing CCR landfills.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments,

a s well as the technical criteria for these units that is discussed in Unit VI. In particular the commenter is referred to the requirements for existing units depending on the unit’s liner type. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06516

- 1 

### Organization 1 

### : Plains Justice, Iowa Environmental Council, Iowa Interfaith Power & Light,
Iowa Physicians for Social Responsibility 

### Commenter 1 : Carrie La Seur Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 5.5.2 

### Comment Excerpt Text: To give you some perspective into the dangers Iowans face from unlined, unmonitored coal ash dumps and underregulated re

- use, we attach 2007 and 2010 reports on coal ash dumping in Iowa (Exhibits A and B). These studies show that, in the rare instances that groundwater mon itoring takes place in Iowa, it has already begun to indicate leaching from coal ash disposal sites. We also attach a letter (Exhibit C) sent to EPA by the Iowa Environmental Protection Commission, a
bi

- partisan body that oversees Iowa’s Department of Natu ral Resources, requesting expanded regulation of coal ash disposal. EPC voted unanimously to make this unusual appeal to EPA after becoming aware of the severity of Iowa’s coal ash disposal problem.75

Response: The Agency acknowledges and appreciates the c omment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments,
as well as the technical criteria for these unit s that is discussed in Unit VI. The commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06516

- 10 

### Or ganization 1 

### : Plains Justice, Iowa Environmental Council, Iowa Interfaith Power & Light, Iowa Physicians for Social Responsibility 

### Commenter 1 : Carrie La Seur Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: [ATTACHMENT: See original comment for 6516.2 with report: "Coal's Hidden Threat" by Plains Justice]

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of th e technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreov er, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitl e D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, respon ded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06516

- 11 

### Organization 1 

### : Plains Justice, Iowa Environmental Council, Iowa Interfaith Power & Light, Iowa Physicians for Social Responsibility 

### Commenter 1 : Carrie La Seur Commenter Type: Advocacy Group Classification: Substantive76

Comment Category: Current Task: Examin e Context Assigned/Due: Other Sections: 5.5.2 

### Comment Excerpt Text: [ATTACHMENT: See Docket Reading Room, found on EPA's DVD#1 and 6516.1 was loaded
into CommentWorks

-- "Iowa Coal Combustion Waste Disposal" by Plains Justice]

Response: The Agency ackn owledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is r eferred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to

in corporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the a ccuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06516

- 2 

### Organization 1 

### : Plains Justice, Iowa Environmental Council, Iowa Interfaith Power & Light, Iowa Physicians for Social Responsibility 

### Commenter 1 : Carrie La Seur Commenter Type: Advoc acy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.1 4.2.4 

### Comment Excerpt Text: It is the collective opinion of Iowa’s conservation community that Subtitle C provides the only effective option for protecting human health and the environment from the physical and the chemical dangers of coal ash. Subtitle D would allow EPA only to develop suggested guidelines for coal ash disposal, leaving citizens without federally enforceable r ules and permitting our state to opt out of the guidelines. As your analysis has already indicated, the majority of states are likely to ignore any EPA

- developed disposal guidelines and would continue to allow dangerous coal ash dumping under current, inad equate state programs.

We fear that this is the case in Iowa, where, unfortunately, industry has already begun to lobby
for self

- regulation and no meaningful change to the status quo should EPA choose Subtitle D regulation. In 2007, when our Department of Natural Resources responded to public concern77

with a proposal to improve regulation of coal ash, industry responded immediately with a campaign to shut down regulatory reform. Several dozen coal ash producers sent nearly identical letters to DNR, pleading economic hardship if minimally protective regulations such as liners and groundwater monitoring were put in place. As a result, DNR shelved the proposed reforms, with the justification that EPA would soon put stronger regulation in place that would supers ede any effort by DNR.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landf ills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preambl e for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue . However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06538

- 1 

### Organization 1 

### : South Carolina Office of Regulatory Staff (ORS) 

### Commenter 1 : Florence P. Belser Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.1 

### Comment Excerpt Text: By letter dated August 26, 2009, the ORS previously submitted comments to the EPA on this matter. [Footnote 3: Letter o f C. Dukes Scott, Executive Director, State of South Carolina Office of Regulatory Staff, to The Honorable Lisa Jackson, Administrator, U.S. Environmental Protection Agency (August 26, 2009) (submitted in Docket EPA

- HQ

- RCRA

- 209

- 0640)(Document ID: EPA

- HQ

- RC RA

- 2009

- 0640

- 0179).] The ORS stands by the previously submitted comments and maintains that Coal Combustion Residuals (“CCRs”) should be classified as nonhazardous waste under RCRA Subtitle D, rather than as hazardous waste under RCRA Subtitle C, because S outh Carolina has the regulatory infrastructure in place to ensure the safe management of these materials. The ORS understands that every state environmental agency that has weighed in on this issue to date has opposed regulating CCRs under RCRA Subtitle C

. As those state environmental agencies have advocated, the ORS takes the position that the best management option for regulating CCRs is under RCRA Subtitle D. Each state environmental78

agency contends that regulation under RCRA Subtitle D would preserve a nd expand the beneficial use of CCRs and that the regulatory infrastructure is in place to ensure the safe management of these materials. We at the ORS believe this is certainly the case in South
Carolina.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not r esponded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no fina l conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06545

- 2 

### Organization 1 

### : Commenter 1 : Mary Arlis Bates Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.1 

### Comment Excerpt Text: I am very concerned about the lax regulations of slurry and coal ash in Illinois. They are both
toxic to humans as well as the environment and should be regulated under subtitle C.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.79

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to

comment s that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain as pects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on th e adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06554

- 5 

### Organization 1 

### : Commenter 1 : Kristina Keeling Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 9.2.1 

### Comment Excerpt Text: Despite public outcry against the contamination of the Joliet area, little had been done in the way of regulation by the IEPA (Illinoi s Environmental Protection Agency).Agency officials claim that jobs made available by the CCR producing plant are needed for the stability of the community, and regulation would supposedly cut these jobs and endanger the economic and
social structure of th e Joliet area. We should not put our health at risk for the sake of the economy. In fact, insurance premiums and other exorbitant healthcare costs taken on by the individual due to these health effects would further stunt the economy, especially on a small scale like a town. Decreased productivity caused by sickness would also hinder economic prosperity. Essentially, we would create a community of sick and poor individuals at the behest of large corporation initiatives, where wealth is consequently distribu ted elsewhere.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.80



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06591

- 2 

### Organization 1 

### : Commenter 1 : R. Turner Goins Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Studies show that ash is hazardous, and that ground water under ash impoundments violates water quality standards, yet West Virginia does not limit contamination, showing why federal oversight is needed.

Response: The Agency ackno wledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is re ferred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to

inc orporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06661

- 2 

### Organization 1 

### : Commenter 1 : Mass Comment Campaign sponsoring organization unknown (65) Commenter Type: Private Citizen Classification: Non

- substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.1 

### Comment Excerpt Text: Subtitle C will help ensure that states with lax coal combustion waste standards. like Indiana, will not allow drinking water sour ces to become contaminated from unsafe disposal of coal ash waste. In Indiana, poorly regulated coal ash disposal at landfills and lagoons has resulted in drinking water contamination in at least two areas: Town of Pines and East Mt. Carmel. Both

towns are clear examples of the inadequate regulation of coal ash waste in our state and the threat to public health that results. Please adopt Subtitle C for coal ash waste disposal.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is81

also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste manage ment plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06723

- 11 

### Organization 1 

### : West Virginia Department of Environmental Protection (WVDEP) 

### Commenter 1 : Gary Casto on behalf of Randy C. Huffman Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: West Virginia enacted solid waste disposal regulations in 1990 that contain design and performance standards that are nearly identical to those referenced in proposed Su btitle D

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06726

- 2 

### Organization 1 

### : The North American Coal Corporation 

### Commenter 1 : Joseph D. Friedlander Commenter Type: Other Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: States are clearly "stepping up to the plate" with regard to CCR regulation, reducing the need for federal regulation. Indeed, in the preamble EPA states, "In the May 2000 Regulatory82

Deter mination, the Agency concluded that the utility industry had made significant improvements in its waste management practices for new landfills and surface impoundments since the practices reflected in the 1999 Report to Congress, and that most state regula tory programs had similarly improved". 75 Fed. Reg. 35,143.

States are cognizant of their recently increased regulatory activities regarding CCRs and are thus strongly opposed to unnecessary federal regulation of CCRs. The Environmental Council of the
St ates, the national non

- profit, non

- partisan association of state and territorial environmental agency leaders, noted in a resolution on The Regulation of Coal Combustion Products (September 22, 2008, revised March 23, 2010) that "state CCW [coal combustion waste] regulatory requirements have become more stringent in recent years, the vast majority of new and expanded CCW disposal facilities have state

- of

- the

- art environmental controls " and resolved that the Environmental Council of the States, "Agrees with the U.S. EPA's repeated assessments in 1988, 1993, 1999,2000, and 2005 that CCW disposal does not warrant regulation as hazardous wastes under RCRA Subtitle COO (see www.ecos.org/files/4018 file Resolution 08 14 2010 version.doc).

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states t o incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06808

- 3 

### Organization 1 

### : New Mexico Environment Department (NMED) and Energy, Minerals and Natural Resources Department (EMNRD) 

### Commenter 1 : Bill Brancard Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 12.1.1.3 

### Comment Excerpt Text: Authority. New Mexico currently regulates the disposal of coal combustion residuals (CCRs) under both its water quality laws and its coal surface mining law. New Mexico currently has one CCR disposal facility permitted and regulated under the New Mexico Water Quality Act,
Sections 74

- 6

- 1 to 74

- 6

- 17 NMSA 1978, and one under the N ew Mexico Surface Mining Act,
Sections 69

- 25A

- 1 to 69

- 25A

- 36 NMSA 1978.

Under the Water Quality Act, the NM Water Quality Control Commission (“WQCC”) is authorized to require “a permit for the discharge of any water contaminant”. Section 74

- 6

- 5(A)
NMSA 1 978. Under the WQCC rules, “no person shall cause or allow effluent or leachate to83

discharge so that it may move directly or indirectly into ground water unless he is discharging pursuant to a discharge permit...”. 20.6.2.3104 NMAC.

Response: The Agency ack nowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06808

- 5 

### Organization 1 

### : New Mexico Environment Department (NMED) and Energy, Minerals and Natural Resources Department (EMNRD) 

### Commenter 1 : Bill Brancard Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
New Mexico does not currently regulate the disposal of CCRs under either its solid waste or
hazardous waste laws. Under bot h the New Mexico Solid Waste Act and the Hazardous Waste Act, CCRs are exempt from regulation.

Under the Solid Waste Act,

"Solid waste" does not include: ... (2) fly ash waste, bottom ash waste, slag waste and flue gas emission control waste generated pr imarily from the combustion of coal or other fossil fuels and wastes produced in conjunction with the combustion of fossil fuels that are necessarily associated with the production of energy and that traditionally have been and actually are mixed
with and are disposed of or treated at the same time with fly ash, bottom ash, boiler slag or flue gas emission control wastes from coal combustion;
Section 74

- 9

- 3(N) NMSA 1978.

Under the Hazardous Waste Act,

"Hazardous waste" does not include any of the follo wing, until the board determines that they are subject to Subtitle C of the federal Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. 6901 et seq.: (b) fly ash waste; (c) bottom ash waste; (d) slag waste; (e) flue gas emission contro l waste generated primarily from the combustion of coal or other
fossil fuels
Section 74

- 4

- 3(K)(2) NMSA 1978.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is84

also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06808

- 6 

### Organization 1 

### : New Mexico Environment Department (NMED) and Energy, Minerals and Natural Resources Department (EMNRD) 

### Commenter 1 : Bill Brancard Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: CCR Disposal Facilities. There are three coal burning electrical generation facilities in New Mexico that produce significa nt amounts of coal combustion residuals (CCRs). These facilities

are:

1. Four Corners Generating Station (Arizona Public Service Company) (“Four Corners”)

2. San Juan Generating Station (Public Service Company of New Mexico) (“San Juan”)

3. Escalante Generating Station (Tri

- State) (“Escalante”)

EPA’s documentation indicates that the three facilities produced 3,983,300 tons of CCRs in 2007. CCRs from each of these facilities are disposed in New Mexico, but the disposal is subject to different regulat ing agencies and regulatory agencies.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06815

- 11 

### Organization 1 

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

### Commenter 1 : Liane J. Shekter Smith Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:85

Other Sections: 4.1.1 

### Comment Excerpt Text: The DNRE recommends that if CCR regulations are to be promulgated under RCRA, the subtitle D option would be the preferred approach. Michigan currently regulates CCR as a solid waste and has design, corrective action, and financial assurance requirements similar to those proposed under the June 21, 2010, proposed rules for bot h the RCRA C and D options.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06815

- 4 

### Organization 1 

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

### Commenter 1 : Liane J. Shekter Smith Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The State of Michigan has regulated coal combustion residuals (CCR) as a solid waste since the
enactment of the Solid Waste Management Act, 1978 PA 641, as amended (Act 641), which had an effective date of January 11, 1979. Michigan's Solid Waste Management Act was codified as Part 115, Solid Waste Management, of the Natural Resources and Environmental Protecti on Act, 1994 PA 451, as amended (Michigan Compiled Laws 324.11501 et seq.). Amendments to Michigan regulations since the enactment of Act 641 include allowing beneficial re

- use of CCR
after the 1987 amendments to the Act and classification of CCR as a low

- hazard industrial waste when the Solid Waste Management Act administrative rules were amended in 1993.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06816

- 5 

### Organization 1 

### : Phoenix Cement Company (PCC), Salt River and Rock, Salt River Materials Group 

### Commenter 1 : Roger R. Smith Commenter Type: Beneficial User Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 11.2.5 7.3.1 7.4.1 9.2.2.2 4.5 3.1 .2 

### Comment Excerpt Text: PCC opposes any additional regulation of CCR. Arizona already has the appropriate regulatory framework in place to protect human health and the environment from CCR management units. The adoption of a new federal regulatory progra m would overlap with Arizona’s existing regulatory program, would not provide any additional protection to human health and the environment, but would simply require Arizona to expend already strained resources to amend its proven regulatory program to con form to an unproven federal regulatory program.86

Additionally, it would undermine our company and eliminate jobs in these already difficult economic times. If EPA insists on further regulating CCR, it should be under a Subtitle D solid waste approach which will work in conjunction with existing state programs, not under Subtitle
C as a hazardous material.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06819

- 1 

### Organization 1 

### : Missouri Department of Natural Resources 

### Commenter 1 : Robert Stout on behalf of Dru Buntin Commenter Type: Sta te Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The Missouri Department of Natural Resources (department) has reviewed the proposed regulatory options proposed by the U.S. Environmental Protection Agency (EPA) regarding the disposal and beneficial reuse of coal combustion residuals (CCRs) also referred to as coal combustion wastes. The department believes that Missouri has adequate regulatory controls in place to ensure the proper management of CCRs. EPA should avoid a "one size fits all" approach that will unnecessarily divert limited technical resource s from existing permitting or compliance
and enforcement work.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtit le D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06819

- 7 

### Organization 1 

### : Missouri Department of Natural Resources 

### Commenter 1 : Robert Stout on behalf of Dru Buntin Commenter Type: State Government Classification: Substantive Comment Category:87

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Missouri has received approval to implement RCRA Subtitle D regulations and our staff has the expertise necessary to implement the subtitle D regulations as we already require UWLF's built and operated in Missouri to comply with most of the proposed regulations.

Response: The Agency acknowledges and a ppreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06820

- 4 

### Organization 1 

### : Western Business Roundtable 

### Commenter 1 : Holly Propst Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 11.2.5 

### Comment Excerpt Text: Heavy

- handed federal regulation of CCRs is unnecessary.

The Roundtable understands and supports the responsible disposal of CCRs. However, we have reservations about EPA’s push to elevate its r ole as regulator. The longstanding system of oversight by states has proven generally effective. We understand EPA’s concerns about the handling and storage of CCRs after the highly publicized spill at the Tennessee Valley Authority's Kingston facility. We believe that any operator that fails to properly manage CCRs in a safe and environmentally responsible manner should be held accountable. That does not mean, however, that the system at large is broken.

In fact, EPA’s own findings show that the current system of state regulatory oversight is working. A DOE/EPA report, “Coal Combustion Waste Management at Landfills and Surface Impoundments, 1994

- 2004” found that, without additional federal regulations, state regulatory oversight and ash management practic es made significant strides. Some of that report’s key findings:

A trend towards management in landfills (dry ash handling) and away from surface impoundments (wet handling) is evident.

100 percent of landfills and surface impoundments are authorized b y one or more permits.

The use of liners has become “essentially ubiquitous” and the protective qualities of the liner materials have improved for both landfills and surface impoundments.

91 percent of units (landfills and surface impoundments) built o r expanded between 1994 and 2004 have groundwater monitoring.88

These advancements occurred under state oversight. It is this record that should inform EPA’s approach to federal regulations of CCRs. Clearly, there is much that works well in the current

sys tem. EPA does not need to reinvent the wheel. A federal regulatory regime

– if it must occur

– should build on what has been successful in the states.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06838

- 1 

### Organization 1 

### : Minnesota Pollution Control Agency (MPCA) 

### Commenter 1 : Lisa Mojsiej on behalf of Tim Scherkenbach Commenter Ty pe: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Currently, the MPCA regulates disposal of coal combustion waste through wastewater and solid waste permitting programs. Slurry pond disposal facilities are regulated by the MPCA's wastewater program and dry disposal facilities are regulated by the solid waste program.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06838

- 3 

### Organization 1 

### : Minnesota Pollution Control Agency (MPCA) 

### Commenter 1 : Lisa Mojsiej on behalf of Tim Scherkenbach Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.1 

### Comment Excerpt Text: The MPCA requires coal ash landfills and surface impoundments to meet requirements similar to those being proposed in this rule making. At the facilities constructed and operated in accordance
wit h those standards, the MPCA has not identified adverse environmental impacts. Therefore, the MPCA urges the USEPA to continue to exempt coal combustion waste from Subtitle C of RCRA. The MPCA supports the USEPA in the development of regulations for landfil ls and surface impoundments under Subtitle D of RCRA.89

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is
also re ferred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06845

- 1 

### Organization 1 

### : Arizona Chamber of Commerce and Industry 

### Commenter 1 : Rebecca Hudson on behalf of Glenn Hamer Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.1 

### Comment Excerpt Text: While the Chamber recognizes the need for and supports regulation that is protective of human health and the environment, regulating CCRs as non

- hazardous solid wastes under RCRA Subtitle D is the appropriate regulatory approach. In two separate reports to Congress, in 1988 and 1999, and more recently in a 2000 regulatory determination, [Footnote 1: 65 Fed Reg. 32214 (May 22, 2000)] the EPA determined that CCRs are high volume and low hazard, and do not warrant regulation under Subtitle C. In addition, there are robust Arizona state progra ms already in place that can effectively implement a federal Subtitle D program and ensure environmentally protective and safe management of CCRs as non

- hazardous solid wastes.

We believe that regulating CCR’s as non

- hazardous solid waste under Subtitle D will still offer the necessary protections to public health and the environment without creating the economic impacts that a Subtitle C designation will have in Arizona.

Response: The Agency acknowledges and appreciates the comment. The commenter is
ref erred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and d iscussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management p lans.



### ------------------------------------------------------------------------------------------------------ Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06846

- 5 

### Organization 1 

### : Florida Department of Environmental Protection (FDEP) 

### Commenter 1 : Richard B. Tedder on behalf Mary Jean Yon Commenter Type: State Government Classification: Substantive90

Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.5.2.2 7.3.1 

### Comment Excerpt Text: o The subtitle C regulatory approach to disposal will include many new regulatory requirements that are not needed for CCRs. For example, this approach will include the manifesting of CCRs from their generation point to their final disposal. The Department is not aware of any problems resulting from the trans portation of CCRs in Florida and the addition of this regulatory requirement will create an unwarranted burden on the regulated community while adding no significant protection for the public. The subtitle C approach will also likely require hazardous

wast e treatment, storage and disposal permits for many generators of CCRs in Florida. The Department believes that CCRs are already adequately regulated as a solid waste in Florida and the addition of the hazardous waste permitting requirements will do nothing to improve environmental protection. The Department also does not have the resources necessary to assume the significant increase in workload that will result if EPA regulates CCRs under subtitle C.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the pre amble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06846

- 6 

### Organization 1 

### : Florida Department of Environmental Protection (FDEP) 

### Commenter 1 : Richard B. Tedder on behalf Mary Jean Yon Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.3 7.4.1 

### Comment Excerpt Text: The Department believes, with its existing state laws, it is appropriately regulating the disposal
of CCRs as solid wastes in Fl orida. In addition the Department intends to develop a new rule to update and consolidate our requirements for managing industrial wastes including CCRs. However, the Department has no fundamental objection to EPA regulating the disposal of CCRs
as solid w astes under RCRA subtitle D (in particular the D prime approach) provided sufficient flexibility is built into those regulations to recognize Florida's unique situation.

Response: The Agency acknowledges and appreciates the comment. The commenter is
ref erred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and d iscussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is91

also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management p lans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06852

- 4 

### Organization 1 

### : Green Delaware 

### Commenter 1 : Alan Muller Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.2 

### Comment Excerpt Text: 4. Many state agencies are opposing needed reform of coal ash management in a “turf defending” mode and/or at the behest of industrial interests. They argue that state

- directed policies have been adequately protective but the record i s otherwise, and they show little inclination to correct the errors in those policies.

5. For example, the Delaware Department of Natural Resources and Environmental Control(DNREC)continues to allow the dumping (“beneficial reuse”) of coal ash at hundreds of sites throughout Delaware with little or no oversight or documentation. This ensures the future creation of poorly identified contaminated sites posing health and environmental hazards.

6. Likewise, the DNREC arranged, or connived at, the reopening o f the long

- closed Pigeon Point landfill to the dumping of millions of tons of coal ash mixed with sewage sludge and other potentially harmful materials under the pretext of “landscaping” or “capping” or “regrading,” etc. The height of this unlined dump was increased from approximately 60 feet to approximately 90 feet. Green Delaware has reported on this many times including Alert #261: Closed Pigeon Pont landfill reopened to dumping... [Footnote 2: http://groups.yahoo.com/group/greendel/message/374] incorpo rated herein by reference, and Alert 571: Public hearing Sept 12: help stop the "daylight dumping" [Footnote 3: http://groups.yahoo.com/group/greendel/message/1262], also incorporated by reference.

7. Likewise, large amounts of coal ash have been accumul ated in the City of Wilmington by VFL Technology Corp., and perhaps others, in connection with essentially

- unregulated “beneficial reuse” schemes. Green Delaware has received calls from workers in the area concerned about their exposure to harmful substanc es in these large, uncovered piles of fly ash. These deposits could end up being abandoned in place.

8. Likewise, an ash impoundment/dump at the Indian River Generating Station in Delaware is essentially at sea level, surrounded by the waters of the Indi an River and Bay. The contents of this dump were allowed to wash directly into the water and leachate discharges into ground and surface waters. Heavy metals and other contaminants accumulate in finfish and shellfish. The problems at this site were discove red accidentally by an off

- duty DNREC staffer who happened to be fishing in the area. It seems clear from the developing record that the DNREC lacks the ability or the will to require adequate remediation of this site. See, for example, this newspaper
arti cle [Footnote 4: http://www.capegazette.com/storiescurrent/201011

- 01

- 15/12012

- coal

-92

ash.html] incorporated by reference.

9. The DNREC has not only refused to properly regulate coal ash, but has even refused to accept testimony from on the need to do so.

This is from the transcripts of two hearings [Footnote 5: http://greendel.org/?p=9313] held on October 22, 2007: [Muller] 15 And, very candidly, a very high percentage of 16 the scandals and controversies that we have got in 17 Delaware have got to do with waste management. 18 You know, just last week Bob Haynes conducted 19 a hearing on the Pigeon Point garbage dump, and 20 although that would be considered primarily a matter
21 for the solid rather than the hazardous waste 22 regulations, hundred s of thousands of tons of coal ash 23 are coming in there every year from out of state, and 24 the EPA has a proceeding going on now, which I will put
9 1 into the record, and the issue there is that although 2 coal ash is not now regulated, it is, in fact, nasty 3 stuff, it’s full of hazardous constituents, and I heard 4 a lot of testimony from a variety of people who are 5 very upset that this material is being hauled into 6 Delaware and put on a dump that’s supposedly closed. 7 It’s being done under pretext. 8 MS. VEST: I understand, Alan, and that record 9 is still being open, but as a matter of point here, 10 that’s Pigeon Point and that’s another hearing matter. 11 This hearing tonight is just for comments on the 12 proposed regs.
13 MR . MULLER: Well, I understand that, Lisa, 14 and the reason I am making that comment is simply to 15 make the point that Delaware’s regulations governing 16 hazardous waste aren’t, in fact, governing effectively 17 the management of hazardous waste in D elaware and some 18 very substantial changes are needed in those 19 regulations far and above, you know, having a cap on a
20 used oil tank. 21 And I won’t go on and on now at length about 22 that, but I think it’s important to note that there are
23 many, many issues that aren’t addressed in this 24 document, and the record needs to remain open in order
10 1 that we and other members of the public have an 2 opportunity to comment on that. 3 MS. VEST: Duly noted, and the record should93

4 reflect, I will say it now, that the record is going to

5 remain open for public comment until the close of 6 business October 31, so, you know, absolutely if you 7 feel like you would or other members would like to 8 submit written comments, please do so. That g ives you 9 a full week to get more comments in, and they will 10 become part of the record. 11 MR. MULLER: I know they will, and I would 12 like to ask you to hold the record open for 30 days.
13 MS. VEST: I will take that under advisement.
14 MR. MULLER: You are only talking ten, and I 15 don’t think that

– 16 MS. VEST: But, Alan, these have been noticed
17 for awhile. 18 MR. MULLER: Well, they have, and you are 19 quite right about that, but it’s also true that there 20 hasn’t been any substantial public outreach about this 21 that I am aware of, and I haven’t seen anything in any 22 DNREC publications inviting public comment. 23 MS. VEST: Did the Department not workshop
24 this?
11 1 MR. DAVIS: Yes, we did workshop this, yes. 2 MS. VEST: And when did you workshop it?
3 MR. DAVIS: That is shown in exhibit

— That 4 is shown in Exhibit 2. We had a workshop on August 22, 5 and here is the presentation, and we also received some 6 comments, and these are the people who participated,
7 and here is the letter tha t went to all the hazardous 8 waste generators in the state, who they were sent to, 9 and here is the notice that was on the DNREC web page 10 and the public notice that appeared.
11 MR. MULLER: And I was in Minnesota at that 12 time and I didn’t attend th e workshop, but I noticed 13 your mailing list was hazardous waste generators?
14 MR. DAVIS: Yes. 15 MR. MULLER: Did you send that to the press or 16 to any nongovernmental organizations, advocacy groups, 17 any other organizations?
18 MR. DAVIS: DNREC did issue a press release, 19 yes. 20 MR. MULLER: I am just asking about that 21 mailing. 22 MR. DAVIS: That was a specific letter 23 specifically to hazardous waste generators. [emphasis added]94

MR. MULLER: Okay, now, Amendment 3 speaks to
2 industrial landfi lls and liner. Now, there is a 3 proceeding going on now involving the reissuance of 4 permits for a coal ash dump at DuPont Edgemoor Plant? 5 MS. VEST: And I am not going to entertain any 6 comments or questions in this record on that. That’s
7 another ma tter entirely. 8 MR. MULLER: Well, I don’t think so, Lisa, 9 because here we are, Amendment 3, liner, general 10 provisions, but this is a facility that has no liner 11 and DNREC is proposing to re

- issue the permit. 12 MS. VEST: Alan, I am not going to giv e you 13 much more leeway on this. We are not going to talk 14 about Pigeon Point, Cherry Hill, DuPont Edgemoor. 15 These are comments on the regulations at hand. I am 16 not going to let you bring them in in a sideways
17 manner. 18 If you have comments o r concerns about the 19 proposed amendments, we will entertain them. If you 20 have additional comments that you wish the Department 21 to elaborate on, such as explanations or definitions 22 contained within the amendments, we will certainly
23 entertain those, but I will put a stop to you bringing 24 in other matters inclusive into this record. It’s not
25 1 going to happen. 2 MR. MULLER: Well, I realize, Lisa, that short 3 of a humongous wrangle, it’s going to be very 4 difficult, but my point was to est ablish a context and 5 to point out why Amendment 3 on industrial landfills is 6 unsatisfactory, because there are issues in Delaware 7 right now involving industrial landfills that need 8 liners and don’t have them. And the only provision
9 here does not appear to me to address that, and the
10 issue needs to be addressed.
11 The issue that needs to be addressed is that 12 any landfill of that kind that is now operating without 13 a liner should not get a new permit and should not be 14 continued to operat e, should not be allowed to continue 15 to operate without a liner.

And so on......

10. Scandals aren't limited to Delaware. Basin Electric in North Dakota, campaigning aggressively [Footnote 6:95

http://www.basinelectric.com/News_Center/Publications/Fea ture_Articles/EPA_proposal_a_cost ly_burden.html] against effective regulation of coal ash, claims: “The states do an extremely good job of controlling, inspecting and monitoring all ash disposal sites,...” but also says “Livestock producers mix coal ash wi th the soil in their feedlots. Testing has shown that using coal ash improves wet, muddy feedlots, which can prevent animals from growing effectively and staying healthy.”

11. The Minnesota Independent reports [Footnote 7: http://minnesotaindependent.com /29606/fly

- ash]:

“...the Minnesota Pollution Control Authority (MPCA) has approved the use of fly ash from Otter Tail Power Company’s Hoot Lake facility in Fergus Falls, Minn., to be used as a soil stabilizer in livestock pens, as an aggregate for privat e roads and as a base pad in feed storage. Up to two inches of ash can be spread over an area to treat the top six inches of soil.”

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06852

- 7 

### Organization 1 

### : Green Delaware 

### Commenter 1 : Alan Muller Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assign ed/Due: Other Sections: 1.1 

### Comment Excerpt Text: Both state and federal regulatory agencies have failed to regulate coal ash effectively or in accord with existing law. The situation is in fact one of the great scandals in the history of US environmental regulation. The integrity of state and federal has agencies buckled under pressure. This integrity needs to be restored. Our interactions with Delaware regulators have convinced96

use that they lack the understanding, the will, and perhaps the capacity to undertake effective regulation at the state level. T hus, it is essential that EPA take prompt and unambiguous action.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subt itle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commente r is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 25 

### Organization 1 

### : Avista Corp. 

### Commenter 1 : Darrell Soyars Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.2.2 

### Comment Excerpt Text: The Subtitle D approach must allow for state implementation of the fed eral regulations. While Avista supports the Subtitle D Prime option (with the adjustments discussed below), a major shortcoming of this approach, as well as with the other Subtitle D alternatives, is the lack of any mechanism for qualified state programs to step in and directly administer the Subtitle D CCR regulations exist. For instance, Montana’s Major Facility Siting Act [under which Colstrip is regulated through its Certificate of Environmental Compatability and Public Need], meets or
exceed the feder al controls. EPA’s proposed approach makes no practical sense, and it would result in parallel and redundant regulatory programs for the same materials. Colstrip has been fully regulated by the Montana Department of Environmental Quality (DEQ) since the pl ant was constructed, Avista is very concerned about how problematic it will be to maintain compliance with dual regulatory programs

– both state and federal

– for CCR. Furthermore, such an approach would directly contravene the Bevill Amendment’s directive that EPA must avoid duplication of effort with pre

- existing regulatory programs.
See RCRA 8002(n) [Footnote 1: This section provides, in relevant part, that “the Administrator shall, as he deems appropriate, review studies and other actions of other Fede ral and State agencies concerning [CCRs] and invite participation by other concerned parties, including industry and other Federal and State agencies, with a view toward avoiding duplication of effort.”]. EPA has previously recognized this point. One of th e Agency’s primary reasons for concluding in its 2000 Regulatory Determination that CCRs do not warrant Subtitle C regulation was Congress’s admonition in the Bevill Amendment against duplication of efforts by other federal and state agencies.65 Fed. Reg. 32215. Unfortunately, EPA has failed to adhere to this Congressional directive in the proposed Subtitle D regulatory alternatives, including the Subtitle D Prime option, and has proposed a self

- implementing program that will impose duplicative and
redundan t requirements.97

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills a nd surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 26 

### Organization 1 

### : Avista Corp. 

### Commenter 1 : Darrell Soyars Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: As a result of its findings in the final 2000 Regulatory Determination and the supplemental 2007 joint EPA/DOJ Report of state CCR programs, EPA is well aware that there are many mature state CCR regulatory programs with requirements for permitting, liner, and groundwater monitoring controls similar to those proposed in the Subtitle D options. In fact, EPA concluded in its 2000 Regulatory Deter mination that state CCR controls have “substantially improved over the last 15 years,” and that a “high percentage of states had authority to impose protective management standards on surface impoundments and landfills, especially for groundwater
monitorin g, liners, and leachate collection . . . .” Id. at 32229. The joint 2007 DOE/EPA Report, which evaluated changes in state CCR controls that occurred after 1995 (the cut

- off date for the data used in the 1999 Report to Congress), found even further improvem ents in state CCR controls. Based on the states surveyed, the report found more stringent state CCR controls with respect to permitting, liner, groundwater monitoring, leachate collection, closure and post

closure care, and siting requirements. 2007 DOE/EP A Joint Report at S

- 8. In addition, the most recent survey of state CCR controls compiled in 2009 by the Association of State and Territorial Solid Waste Management Officials (“ASTSWMO”) confirms the increasing level of protection provided by state contro ls, finding, among other things, that 86% of the states with CCR landfills and 69% of states with CCR surface impoundments have permitting requirements for these disposal units. Letter from ASTSWMO to Matt Hale, EPA, April 1, 2009

Response: The Agency ack nowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.98

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not r esponded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no fina l conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06865

- 2 

### Organization 1 

### : Constellation Energy 

### Commenter 1 : Charlene Zaruba on behalf of Paul Allen Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Regulation by States Is Appropriate and Sufficient EPA is soliciting comments specifically on the adequacy of state programs to ensure proper management of CCRs. Constellation owns coal

- fired generation in four states (MO, PA, CA, and UT. In all four states Constellation has observed active and rigorous re gulatory programs that review and approve our CCR management, and they require regular groundwater monitoring and reporting, as well as stipulations for CCR placement and capping. In Maryland where a significant portion of our coal

- fired generation resides , Maryland Department of the Environment (MOE) inspectors make regular appearances at our CCR management facilities. Maryland has recently enacted a comprehensive CCR management program, and such programs exist in other states (for example, Pennsylvania, W isconsin). Because Constellation already sees active oversight on the state level, we see no need for additional federal oversight Subtitle D regulations have been adopted at the federal level, implemented at the state level and have been through almost 20 years of use under various site

- specific and waste

- specific conditions. Many states currently use a version of Subtitle D for their regulation of CCRs now, and there is a proven track record for the success of these programs. Through this process the stat es have had the regulatory flexibility to customize the regulations to meet their state

- specific criteria. The states are also staffed with persons knowledgeable of the Subtitle D regulations and their implementation. Therefore the regulation of CCRs when destined for disposal under Subtitle D approach can be implemented under proven methods and with the least amount of trial and error. The proposed Subtitle D regulation allows the management of CCRs using methods that are proven to be safe and reliable.
R ecognition of Local Conditions Constellation operates coal

- fired generation stations in differing geographical, geological and hydrogeological regimes. While minimum standards for liners and caps may be fitting, the regulation should allow for flexibility on a site

- specific basis to enable the generator and the state agency to tailor the engineering design to the local conditions. For example, where a single composite liner system may be appropriate in regions in the eastern U.S., it may not be necessary99

i n areas of the west or southwest where rainfall is limited and the depth to groundwater can be hundreds of feet. Variations based on specific local conditions have been successfully implemented under existing Subtitle D programs. Application of Subtitle D to CCRs will incorporate these state specific practices and approvals and eliminate the need to create the same flexibility under Subtitle C. Subtitle D will allow the implementation of new standards much more quickly than recreating a new review process. Any gaps that may exist in the regulation of CCRs at the state level under Subtitle D can be filled with the implementation of the federal standards and methods to address alternatives at the stale level with EPA input

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred t o Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant
comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule ’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06866

- 23 

### Organization 1 

### : Washington State Department of Ecology 

### Commenter 1 : Ken Zarker for K. Seiler Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Ecology's Solid Waste and Hazardous Waste Programs work in partnership with jurisdictional Health Departments to implement regulations for municipal solid waste and for limited purpose
landfills and su rface impoundments under Washington Administrative Code, Chapters 173

- 351
and 173

- 350, respectively.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in t his rule. Furthermore , the commenter is100

also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06868

- 3 

### Organization 1 

### : Cleco Corporation 

### Commenter 1 : Bill Matthews Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Louisiana's solid waste program for landfills and impou ndments is very similar to the subtitle D Prime program. The Louisiana program requires, among other things, consideration of unit design

- structure, liners, and groundwater monitoring. Impoundments existing prior to October 1993 were required to have liner s having a coefficient of permeability no greater than 1x10

- 7 cm/sec. This was the case for the Cleco impoundments. The Cleco units have clay or composite liners, have experienced no releases due to structural failure and no overflows. Groundwater
monitori ng over the course of years has shown that there has been no adverse impacts to groundwater from Cleco impoundments and landfills. Therefore it can be said that the Louisiana version of subtitle D Prime is protective of human health and the environment. Ob viously the Subtitle D Prime option is an acceptable option in lieu of Subtitle C.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06868

- 4 

### Organization 1 

### : Cleco Corporation 

### Commenter 1 : Bill Matthews Commenter Type: Electric Utility Company Classification: Substanti ve Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: In the August 9, 1993 regulatory determination, EPA stated that "it is unlikely that Subtitle C would effectively address the problems associated with the four large

- volume fossil fuel combustion wastes (CCRs) without imposing unnecessary costs". EPA also stated in that regulatory determination that "regulation under Subtitle C of RCRA is inappropriate for the four waste streams that were studied (fly ash, bottom ash, boiler slag, and flue gas emission control101

waste) because of the limited risks posed by th em and the existence of generally adequate State and Federal regulatory programs". These statements focus on costs versus performance of the two programs. These statements are supported by the fact that the Louisiana solid waste regulatory program, which i s very similar to a Subtitle D Prime program, requires for impoundments and landfills specific unit design requirements as well as engineered liners having a coefficient of permeability no greater than l x l0

- 7 cm/sec.In addition, the Louisiana program

req uires groundwater monitoring. The Cleco impoundments and landfills meet these Louisiana solid waste permitting requirements. The Cleco units have experienced no releases due to structural failure and no overflows. Groundwater monitoring over the course of years has shown that there has been no adverse impacts to groundwater from Cleco impoundments and landfills. So, it is evident that the Louisiana program is an adequate regulatory program.

Response: The Agency acknowledges and appreciates the comment. T he commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06872

- 1 

### Organization 1 

### : State of Pennsylvania Department of Environmental Protection 

### Commenter 1 : Todd M. Wallace Commenter Type: State Government Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The management of CCR is very important to this state, both environmentally and economically, as most of the facilities generating electricity in Pennsylvania combust either pul verized coal or waste coal as fuel and depend on an environmentally sound program to ensure the effective management of their waste coal ash.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06872

- 11 

### Organization 1 

### : State of Pennsylvania Department of Environmental Protection 

### Commenter 1 : Todd M. Wallace Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due :102



### Comment Excerpt Text: The management of CCR is very important to Pennsylvania (PA), both environmentally and economically. Most of the utilities that generate electricity in PA combust either pulverized coal or waste coal as fuel and depend on a predic table, environmentally sound program to ensure the effective management of their CCR, PA possesses more than 30 years experience with the management of CCR. Specifically, PA DEP has already developed a comprehensive regulatory program for the disposal of C CR that exceeds either the Subtitle C or Subtitle D approaches that are proposed in this federal rulemaking.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Ag ency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgati ng in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is re lying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06872

- 15 

### Organization 1 

### : State of Pennsylvania Department of Environmental Protection 

### Commenter 1 : Todd M. Wallace Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
There are 43 coal

- fired electricity producers in PA that generate approximately 20 million tons of CCR annually. Of those 20 million tons/year, 11 million tons/year are beneficially used in mine reclamation and as structural fill, and slightly less than one million tons/year is used for other
beneficial use s. The remaining 8 to 9 million tons/year are landfilled as residual waste.

PA established residual waste regulations in 1992 that govern the transportation, storage and disposal of CCR. These regulations are based on sound scientific and engineering stan dards, and
are similar to the Commonwealth's RCRA Subtitle D

- authorized municipal waste regulations.CCR landfills have been designed and operated in accordance with these regulations and are protective of Pennsylvania's environment and human health and saf ety. These residual103

waste regulations were used as a basis for EPA's existing Guide for Industrial Waste Management. According to EPA, that guide was designed to protect groundwater, surface water,
and air resources under an industrial Subtitle D

- like resi dual waste program.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfill s and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble f or a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA ha s responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not rel ying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06876

- 3 

### Organization 1 

### : Tennessee Riverkeeper, Inc. 

### Commenter 1 : David Whiteside Commenter Type: Advocacy Group Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: In at least ten states that produce large amounts of coal ash, there is no law requiring monitoring of operating coal ash ponds. In Alabama, most coal ash disposal sites are not subject to any state regulation whatsoever. The same goes for Texas. In Tennessee, home to five proven damage cases and the TVA’s massive spill of over 1 billion gallons of coal ash slurry, coal ash impoundments are still unregulated, and there are no sta ndards for structural integrity, groundwater monitoring, corrective action, or post

- closure care. Nor are there any regulations that cover transportation of coal ash before its disposal. The regulations for coal ash waste are
inconsistent from state to sta te. The federal government and the EPA need to step in and provide consistent regulations for the state regulatory agencies to follow.

One of those high hazard coal ash impoundments is on the Tennessee River in Tennessee. The
Johnsonville Fossil Plant NPD ES permit does not contain any numeric effluent limits for metals contained in, or whole effluent toxicity caused by, discharges of coal combustion waste (“CCW”) pollutants to the Tennessee River. Although required by the Clean Water Act, The Tennessee Dep artment of Environment and Conservation (TDEC) has failed to set technology

-104

based effluent limits or water quality

- based effluent limits in the Johnsonville Fossil Plant draft permit. TDEC has not taken action to stop the unpermitted discharge of pollutant s from the Johnsonville Fossil Plant or correct the conditions that created longstanding seepage problems from Johnsonville’s CCW ponds and impoundments in the draft permit, according to the Environmental Integrity Project.

The amount of damage caused by coal ash in certain states, as well as monies paid for corrective action and lawsuit settlements, reveals the true cost of these states’ weak and often nonexistent regulations. The failure of a discharge pipe at a plant in Alabama cost $9.2 million to corr ect a 6.1 million gallon release from an FGD pond. A similar example occurred outside the Tennessee Valley, in Pennsylvania, where the release of water and fly ash from a power plant to the Delaware River in 2005 cost approximately $37 million to clean up.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impou ndments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06877

- 1 

### Organization 1 

### : Detroit Edison Company 

### Commenter 1 : Dennis Leonard Principal Engineer Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The State of Michigan has a robust and effective program for regulating CCRs. The company
and the state have worked to upgrade the company's landfills to meet standard as they have been developed and we have worked to assure that the ground water standards contained in 40 CFR
Part 257.3

- 4 have always been met.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.105



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06885

- 3 

### Organization 1 

### : Hoosier Environmental Council (HEC) 

### Commenter 1 : Jesse Kharbanda Commenter Type: Advocacy Group Classification : Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.1 

### Comment Excerpt Text: 3. State regulation is not adequate to assure proper management. The State of Indiana has not taken steps to assure protection of health and the environment from improper disposal practices.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06885

- 8 

### Organization 1 

### : Hoosier Environmental Council (HEC) 

### Commenter 1 : Jesse Kharbanda Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: State regulation is not adequate to assure proper management.

The State of India na’s record on oversight and enforcement related to CCR disposal is limited, inconsistent, and inadequate to protect human health and the environment. The EPA’s Subtitle D proposal would be unlikely to substantially change the state’s approach to CCR regul ation. Indiana has 53 surface impoundments at 16 power plants. These facilities are lightly regulated, with no firm requirements for liners or effective groundwater monitoring. Under Indiana law, no construction permit is required for these facilities, whi ch are typically located in floodplains adjacent to waterways. Despite a requirement in state law that state rules be adopted for regulating these impoundments, no such rules have ever been adopted. Moreover, the state’s rules for CCR landfills do not prov ide for adequate groundwater monitoring or full characterization of the geologic conditions at the site.

Indiana does not have enforceable regulations for minefilling of CCRs. Despite numerous calls by citizens groups for effective regulation of this dis posal practice, Indiana has chosen to adopt a “guidance document” instead of binding regulations, and has permitted the disposal of these106

wastes in surface mines without adequate protection for water supplies or requirements for effective groundwater monit oring.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surfa ce impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discus sion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on sta te programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06886

- 2 

### Organization 1 

### : Heart of Illinois Group Sierra Club 

### Commenter 1 : Joyce Blumenshine Commenter Type: Advocacy Group Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 6.1.1 1.4 

### Comment Excerpt Text: We see the impacts of coal ash in our community. The failure of the Illinois Environmental Protection Agency to adequately regulate coal ash has meant the “solution by dilution” answer to groundwater contamination by the Ameren Duck Creek Power Plant, near Canton, Fulton County. Our members reside in the immediate area and have private water wells, fish, swim and recreate near this power plant. The IL EP A took over seven years to deal with the boron groundwater contamination from this power plant's ash settling ponds. Now the contaminated water is being allowed to be let into the Illinois River in 'regulated' amounts. The Duck Creek plant had to get piped water from the City of Canton for their potable water as they polluted their groundwater at the plant with their treatment ponds. Our concerns are for the Illinois River mussel beds that were known to be near where the water discharge was proposed to be a nd other aquatic life. We believe the IL EPA has inadequate oversight of such 'solution by dilution' means of dealing with coal ash contamination and that the only way to really have this corrected is with federal regulation of coal ash.

Our members commu te to work and meetings by the Ameren A.G. Edwards Power Plant, Peoria County, at the edge of Bartonville. This plant has only a levee between it and the Illinois River.107

The coal ash piles are visible from the highway and to our knowledge this ash area ha s no liners and does not even have water monitoring. These old coal plants and coal ash impoundments are ticking time bombs for our community health and well being. The Peoria metro area has very high asthma rates and high cancer rates for the state of Ill inois. We are very concerned that without Subtitle C regulations as Special Waste, the same old practices from fifty years ago will continue to be used at these plants for their handling of coal ash. Our IL EPA is short staffed and
does not seem to be able to make headway in any kind of current best science practices to apply to these coal ash sites to improve protections for public health and long

- term safety.

The Dynegy Midwest Havana Power Plant has one of the top 50 most hazardous coal ash impoundments in the nation, according to a listing from the EPA. I have talked to citizens living near this impoundment, and they have never received any information from the power company about emergency procedures or safety regarding the ash impoundment next to thei r residential area. If this impoundment were to break, the slurry wave is expected to inundate several miles from the waste area, which will include many homes. Within the first block north of this coal ash slurry is a home daycare business and retired sen ior citizens. What would become of these citizens if the ash pond fractured? We contend that neither the utility companies nor the IL EPA are doing their jobs adequately in Illinois to insure protections for current and future generations
of citizens from coal ash impacts.

The U.S. EPA must move forward with the known scientific facts that coal ash is toxic. Children, the elderly or those with health problems bear the health burdens of this pollution in our air and

water.

We are concerned about the long

- t erm impacts to our environment and for future generations if coal ash continues to be ignored as a toxic waste, even though it contains many heavy metals.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units I V and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Commen t Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06912

- 2 

### Organization 1 

### : Sunflower Electric Power Corporation 

### Commenter 1 : Paul E. Reynolds Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Holcomb Station is located in an arid locale in western Kansas and is one of eight coal

- fired108

power plants operating in the state of Kansas. The management of CCRs at each facility is overseen by the Kansas Department of Health and En vironment (KDHE).

Response: The Agency acknowledges and appreciates the comment.



### ___________________________________________________________________ Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06917

- 13 

### Organization 1 

### : Texas Commission on Environmental Quality (TCEQ) 

### Commenter 1 : Tangela Niemann on behalf of Mark R. Vickery Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 11.2.5 

### Comment Excerpt Text: The TCEQ believes tha t our state regulations and programs for CCR management are effective, provide for safe disposal practices, and promote conservation of natural resources.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06917

- 2 

### Organization 1 

### : Texas Commission on Environmental Quality (TCEQ) 

### Commenter 1 : Tangela Niemann on behalf of Mark R. Vickery Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Cont ext Assigned/Due:



### Comment Excerpt Text:

EPA

- funded studies confirm that Texas is the largest consumer of coal in the nation and consequently is one of the largest producers of CCRs. [Footnote 4: Buckley, Tera D., and Pflughoeft

- Hassett, Debra F., January 2005, Review of Texas Regulations, Standards, and Practices Related to the Use of Coal Combustion Products, Final Report, prepared for U.S. Environmental Protection Agency, Washington, DC 20460 by Energy & Environmental Research Center, University of Nort h Dakota, Grand Forks, ND., Publication 2005

- EERC

- 01

- 01.]. Texas has a big stake in the safe and environmentally sound management of CCRs. The following information provides details about current management practices and regulations in Texas that have help ed to effectively and safely manage large CCR quantities generated in the

state.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulg ating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is109

also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not r esponded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no fina l conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06917

- 7 

### Organization 1 

### : Texas Commission on Environmental Quality (TCEQ) 

### Commenter 1 : T angela Niemann on behalf of Mark R. Vickery Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: CCRs are considered nonhazardous industrial solid wastes by the TCEQ consistent with EPA's May 2000 determination. Per TCEQ regulation at Title 30 Texas Administrative Code (TAC) Section 335.2, a facility is not required to obtain a permit for the processing or disposal of nonhazardous industrial solid waste (like CCRs ) if the facility is: (1) owned or otherwise effectively controlled by the owners or operators of the particular industrial plant, manufacturing plant, mining operation, or agricultural operation from which the waste results or is produced; and (2) located within 50 miles from the plant or operation that is the source of the industrial solid waste and the waste is not commingled with waste from any other source or sources. However, the facility is required to submit a notification and register with the TCEQ under 30 TAC Section 335.6 if the CCR is not recycled as a product.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06921

- 20 

### Organization 1 

### : Associated General Contractors of America (AGC) 

### Commenter 1 : Melinda L. Tomaino Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.4.5 

### Comment Excerpt Text: Private industry and other beneficial users of CCRs are not the only groups concerned about a110

using the material should EPA deem it hazardous. Some states, such as Florida, Illinois, Minnesota, Pennsylvania, Texas and Wisconsin

— which represent 32 percent o f the total 44.7
million annual tons of CCR beneficial uses as of 2004

— will not allow the beneficial use of a
hazardous material. Of the 10 states listed below (FL, GA, IA, IL, IN, MN, PA, TX, UT, WI) identified by ORCR as major users of coal combustion fl y ash, seven of these states have industrial waste regulations or
statutes that are available on

- line. Based on the 2007 EIA

- 860 "Annual Electric Generator Report" database published by the Energy Information Agency of the US Department of Energy,
these 10 states represent 188 (i.e., 38%) of the 495 NAICS 221112 coal

- fired electric utility plants, and represent 63 million (i.e., 42%) of the ORCR

- estimated 149 million annual tons CCR generation by these 495 plants (2007). Six of these 10 states (FL, IL, MN, PA, TX, WI) limit industrial waste beneficial use to “nonhazardous” wastes. These six states represent 32% percent of the total 44.7 million annual tons of CCR beneficial uses as of 2004. Consequently, if CCR disposal becomes listed as RCRA “hazardous” was te, then its beneficial use could be affected in these states if RCRAauthorized state government programs were to prohibit CCR beneficial uses as a result of such hazardous waste listing for CCR as a RCRA Subtitle C “hazardous” waste. (See Degreare and Coc hran, State Government Coal Combustion Ash Beneficial Use Programs and Federal RCRA “Hazardous Waste” Regulation, April 16, 2009, EPA

- HQ

- RCRA

- 2009

- 0640

- 0271)

Response: The commenter is referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.



### Co mment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06959

- 2 

### Organization 1 

### : Prairie Rivers Network, Illinois Chapter of the Sierra Club, American Bottom Conservancy 

### Commenter 1 : Traci L. Barkley Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 6.1.1 

### Comment Excerpt Text: Proper tracking and management of coal ash is critical to protect public drinking water supplies
and the health of our natural environment. Given the real threats to citizens as evidenced by our number one ranking in the number of coal ash contamination sites nationwide (Attachment A), many Illinoisans would be surprised to learn that no one within any of our state agencies
maintains a list or tracks where and how coal ash is used, stored or disposed of in the state. The public cannot responsibly avoid risk if they don’t know where the risk lies.

And the risk is great as coal ash contains arsenic, mercury, selenium, chromium and cadmium, among other pollutants. When co ntaminants enter drinking water supplies, they can cause damage to nervous systems and other organs, especially in children. In most states

— at ponds, landfills, and mine pits where coal ash gets dumped

— a slow seepage of the ash’s metals has poisoned wa ter supplies, damaged ecosystems, and jeopardized citizens’ health. Unfortunately,111

the Illinois communities of Marion, Joliet, Venice, Oakwood, Havana, Alton, Powerton, Hennepin, Hutsonville, Canton, Wood River, and Coffeen now know this.

Response: The Ag ency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The comme nter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect sta tes to incorporate the CCR rules into state solid waste management plans. The commenter is also referred to EPA’s discussions in Units X and XI of the preamble regarding risk assessment of CCR management and damage cases.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06959

- 4 

### Organization 1 

### : Prairie Rivers Network, Illinois Chapter of the Sierra Club, American Bottom Conservancy 

### Commenter 1 : Traci L. Barkley Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Ex amine Context Assigned/Due: Other Sections: 7.1.2.1 7.1.2.2 7.1.2.4 

### Comment Excerpt Text: As concern with rising health care costs and increasing prevalence of cancer mounts, one of the most responsible things we can do as citizens, elected officials and public service agencies is to reduce and mitigate the known threats to public health and sa fety. Unfortunately, the current regulatory framework to control these wastes is weak and convoluted. In Illinois, depending on where the coal ash is produced and where it will be disposed of, the party responsible for the coal ash may or may not need to c omplete paperwork or apply for a permit from one of three different state agency divisions. There also may or may not be an evaluation of the coal ash’s relative threats to existing uses or natural resources at the proposed disposal site. For example, no p ermit is required if coal ash is disposed of onsite at a power plant, though the Illinois EPA’s Bureau of Land is notified. No permit is required if the coal ash is dumped in an abandoned mine, though the Illinois Department of Natural Resources is notifie d. In both of these instances, no review of potential threat to groundwater or surface waters is conducted and no opportunity exists for the public to comment. If coal ash is disposed of at active mines, a permit is required by IEPA's Bureau of Water thoug h very few pollution controls like liners, currently recommended by the USEPA and the National Academy of Sciences, are required. In Illinois, our infrastructure and capacity to coordinate the proper monitoring and management of coal ash cannot be relied u pon to ensure adequate protections of our water supplies, resources and communities.

In fact, it wasn’t until the state

- wide review of ash impoundments in Illinois in the wake of the December 2008 impoundment failure in Kingston, Tennessee, that data col lected at coal ash disposal sites were reviewed by the Illinois Environmental Protection Agency. What the Agency has found is startling:112

1) Most coal ash impoundments do not have liners to contain waste and prevent pollution of groundwater. 2) Groundwater monitoring is not required at most coal ash impoundments. 3) Groundwater is contaminated at the ten power plant sites that have been investigated thus far,
and 4) Dams creating the impoundments at most sites are unpermitted and have not been inspected
for safety or stability.

In Illinois, we are missing what we so desperately need to protect our people and wildlife from
coal ash contamination

- liners, monitoring, effective clean

- up plans, dam safety requirements,
and enforceable standards.

Response: Th e Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The c ommenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06959

- 6 

### Organization 1 

### : Prairie Rivers Network, Illinois Chapter of the Sierra Club, American Bottom Conservancy 

### Commenter 1 : Traci L. Barkl ey Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Illinois EPA has proposed remedying several coal ash contamination sites in Illinois with “groundwater management zones” in which the contaminated groundwater is actively pumped to retreat the pollution plume and then discharged, without further treatment, to a nearby surface water under an NPDES permit. At one such site, the Ameren Energy Venice Power Stat ion, a contaminant plume of boron (> Class I GWS) extends 600 feet, and a contaminant plume of arsenic (> Class I GWS) extends even farther, into the Mississippi River. The plumes were discovered in the late 1990s when groundwater monitoring was finally re quired. In March 2010, a final plan for closure of the ash ponds was begun including a groundwater management zone and final capping of the impoundment system. While the groundwater management zone may prevent the groundwater contaminant plume from progres sing into the River, the mixing zone in the Mississippi River granted by the Illinois EPA will deliver the same pollutants but in much larger quantities, to the segment of the river just upstream of the drinking water intake for the
cities of East St. Loui s and Belleville.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for113

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble fo r a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06988

- 16 

### Organization 1 

### : Missouri Joint Municipal Electric Utility Commission 

### Commenter 1 : Floyd Gilzow Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 8.1 

### Comment Excerpt Text: EPA has no anecdotal or systemic data demonstrating that current state and federal regul ations administered by the EPA and MDNR are not protective of the environment.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgat ing this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore

, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases t o support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no fin al conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06988

- 5 

### Organization 1 

### : Missouri Joint Municipal Electric Utility Commission 

### Commenter 1 : Floyd Gilzow Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:114

The Solid Waste Management Program and the Water Protection Program of the Division of Environmental Quality at the Missouri Department of Natural Resources operates a credible program, protecting the environment from stored and reused CCR’s. There is no anecdotal or systemic evidence that the permits issued by the programs have allowed CCR’s to enter the
environment from sites in Missouri.

MJMEUC fully supports the comments on the sufficiency of the current regulatory structure provided by City Utilities of Springfield, MO.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble fo r a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state so lid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are ot herwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damag e cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Num ber: EPA

- HQ

- RCRA

- 2009

- 0640

- 06988

- 7 

### Organization 1 

### : Missouri Joint Municipal Electric Utility Commission 

### Commenter 1 : Floyd Gilzow Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The December 22, 2008 structural collapse of the coal ash pond at the Kingston Power Plant in Harriman, TN, was tragedy for the community and the environment. The state data collected and the experience of utilities in Missouri has sh own no significant release of pollutants into the environment. The use of CCR as fill in coal mines, for road beds, as well as storage in properly maintained and monitored coal slurry ponds has been accomplished without danger to the
environment or the hea lth of the citizens in the state.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.115

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is
also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans. With respect to the Tennessee spill referenced in the comment the commenter is referred to EPA’s discussion of damage cases in t he preamble (See Unit XI) as well as the supporting documents available in the docket supporting this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06991

- 1 

### Organization 1 

### : East Kentucky Power Cooperative (EKPC) 

### Commenter 1 : Jerry Purvis Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Kentucky classifies utility wastes (fly ash, bottom ash, scrubber sludge) as special wastes. Pursuant to Kentucky R evised Statute (KRS) 224.50

- 760(1), special wastes are defined as wastes of high volume and low hazard.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06991

- 4 

### Organization 1 

### : East Kentucky Power Cooperative (EKPC) 

### Commenter 1 : Jerry Purvis Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.2 10.4.2 

### Comment Excerpt Text: Impacts to EKPC and its members

EKPC does not believe the proposed regulations are necessary to manage the CCR produced at these facilities in an environmentally sound manner because:

- CCR are not hazardous wastes by characteristic under the federal Subtitle C regulations;

- Th e stigma of a hazardous waste listing will reduce the potential to utilize CCR for beneficial

reuse;

- Kentucky currently provides a regulatory framework for the disposal of CCR in Title 401 of the Kentucky Administrative Regulations Chapter 45; and

- EKPC maintains its coal

- fired generating facilities within this regulatory framework and oversight116

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rational e for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule . Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07394

- 4 

### Organization 1 

### : Coal As h Resources Research Consortium and Energy & Environmental Research Center of the University of North Dakota 

### Commenter 1 : Loreal V. Heebink Commenter Type: Academia Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.5 10.5.2.3 10.3.4 10.5.1.2 10.5.1.5 

### Comment Excerpt Text: [See original comment for Attachment A: Summary of Energy & Environmental Research Center (EERC) Coal Combustion Product

- Related Research.

This summary includes the followin g sections: Leaching Characterization Beneficial Unencapsulated Applications High CCP Utilization in Europe Mercury Emission Control Technologies
State Reviews List of References]

Response: The Agency acknowledges and appreciates the comment. Each of th e specific comments presented are addressed in the technical discussions supporting the technical
criteria established in the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07394

- 5 

### Organization 1 

### : Coal Ash Resources Research Consortium and Energy & Environmental Research Center of the University of North Dakota 

### Commenter 1 : Loreal V. Heebink Commenter Type: Academia Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.3 

### Comment Excerpt Tex t: [See original comment for 7394.2 with Attachment B: Buckley, T.D.; Pflughoeft

- Hassett, D.F. Review of Texas Regulations, Standards, and Practices Related to the Use of Coal Combustion117

Products ; Final Report for U.S. Environmental Protection Agency and H eadwater Resources;
EERC Publication 2005

- EERC

- 01

- 01; Energy & Environmental Research Center: Grand Forks, ND, Jan 2005.]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07394

- 6 

### Organization 1 

### : Coal Ash Resources Research Consortium and Energy & Environmental Research Center of the University of North Dakota 

### Commenter 1 : Loreal V. Heebink Commenter Type: Academia Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due : Other Sections: 10.5.2.3 

### Comment Excerpt Text: [See original comment for 7394.3 with Attachment C: Buckley, T.D.; Pflughoeft

- Hassett, D.F. Review of Florida Regulations, Standards, and Practices Related to the Use of Coal Combustion
Products ; Final Report for U.S. Department of Energy National Energy Technology Laboratory Cooperative Agreement No. DE

- AP26

- 04NT40808; Energy & Environmental Research Center: Grand Forks, ND, March 2006.]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07394

- 7 

### Organization 1 

### : Coal Ash Resources Research Consortium and Energy & Environmental Research Center of the University of North Dakota 

### Commenter 1 : Loreal V. Heebink Commenter Type: Academia Classification: Substa ntive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.3 

### Comment Excerpt Text: [See original comment for 7394.4 with Attachment D: Buckley, T.D.; Pflughoeft

- Hassett, D.F. Review of Pennsylvania Regulations, Standards, and Practices Related to the Use of Coal
Combustion Products ; Final Report for U.S. Environmental Protection Agency Contract No. X1

- 83275601, U.S. Department of Energy Agreement No. DE

- AP26

- 05NT51864, and American Coal Ash Association; EERC Publication 20 07

- EERC

- 03

- 04; Energy & Environmental Research Center: Grand Forks, ND, March 2007.]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07394

- 8 

### Organization 1 

### : Coal Ash Resources Research Consortium and Energy & Environmental118

Research Center of the University of North Dakota 

### Commenter 1 : Loreal V. Heebink Commenter Type: Academia Classification: Substantive Comment Category: Current Task: Examine Context Assigned /Due: Other Sections: 10.5.2.3 

### Comment Excerpt Text: [See original comment for 7394.5 with Attachment E: Buckley, T.D.; Pflughoeft

- Hassett, D.F. National Synthesis Report on Regulations, Standards, and Practices Related to the Use of Coal
Combustion Prod ucts ; Final Report for U.S. Environmental Protection Agency Contract No. X1

- 83316201

- 0 and U.S. Department of Energy Agreement No. DE

- AP26

- 06NT04745; EERC
Publication 2007

- EERC

- 12

- 11; Energy & Environmental Research Center: Grand Forks, ND, Dec 2007.]

Res ponse: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07394

- 9 

### Organization 1 

### : Coal Ash Resources Research Consortium and Energy & Environmental Research Center of the University of North Dakota 

### Commenter 1 : Loreal V. Heebink Commenter Type: Academia Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.3 

### Comment Excerpt Text: [See original comment for 7394.6 with Attachment F: Buckley, T.D.; Pflugh oeft

- Hassett, D.F. Review of North Dakota Regulations, Standards, and Practices Related to the Use of Coal
Combustion Products ; Final Report for North Dakota Industrial Commission, Basin Electric Power Cooperative, Great River Energy, and Minnkota Power Cooperative; EERC Publication
2008

- EERC

- 04

- 04; Energy & Environmental Research Center: Grand Forks, ND, April 2008.]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07395

- 15 

### Organization 1 

### : Texas Coa l Combustion Products Coalition (TCCPC) 

### Commenter 1 : Michael J. Nasi Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The TCCPC believes that Texas' regulations relating to the management of CCRs are effective119

and protective of human health and the environment. There are in fact no "proven" damage cases
in Texas

- the state with the highest CCP production rates. If, however , EPA decides to pursue a federal regulatory program, it is essential that the oversight and implementation of the program rests with the states. Furthermore, flexibility in key technical aspects, such as liner and monitoring requirements, is critical to t he proper implementation of such a program. This has already been proven effective in the Municipal Solid Waste (MSW) Landfill criteria found at 40
C.F.R. Part 258.

A. EPA Underestimates the Successes and Capabilities of Existing State Programs

EPA has s everely underestimated the authority and willingness of states to regulate CCRs. EPA's estimates of low state compliance rates, and diminished effectiveness of a Subtitle D option, is simply not supported by the facts EPA's own analysis, and the continual expansion of state regulatory programs. As outlined in EPA/DOE 2006 Report, and discussed above, there have been dramatic improvement in the management of CCRs [Footnote 37: EPA/DOE 2006 Report
at S

- 5.]. Without any federal regulation, liner usage had beco me "essentially ubiquitous" with 55 of the 56 new units having liners [Footnote 38: fd. at S

- 5.]. The vast majority (91 %) of the studied units built or expanded between 1994 and 2004 have groundwater monitoring [Footnote
39: fd. at S

- 5

- S

- 6.].

EPA's unde restimation is highlighted by the findings of the Office of Management and Budget (OMB), as follows:

"EPA approaches this rulemaking as a means to fill state regulatory gaps. The preamble repeatedly cites a need for federal enforcement and permitting. How ever, of the proven damage cases cited, the majority were addressed through state administrative action [Footnote 40: Interagency Working Comments at 1.].

"EPA cites existing state regulations as an uncertainty. Given part of the rationale for presenting this rule is state regulatory gaps, EPA needs to address this omission and develop a full assessment of existing state regulatory regimes rather than the anecdotal presentation in the draft proposed rule.”[Footnote 41: Id.].

Response: The Agency acknowle dges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is refer red to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorp orate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy o f the facts120

involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07395

- 3 

### Organization 1 

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

### Commenter 1 : Michael J. Nasi Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: 2. Texas Regulations Relating to the Management, Closure and Post

- Closure Care of CCR Disposal Units Are Comprehensive and Protective of Human Health

In EPA's review of state programs, EPA specificall y has targeted Texas as a state with a "significant gap" in existing state regulation [Footnote 13: Id. at 35,15l.]. The foundation of this statement is evidently based on the fact that Texas does not require a "permit" for on

- site waste management. By its own admission, EPA "lacks any real details regarding how states, in practice, oversee the management of these materials when treated as wastes”[Footnote 14: Id. at 35,152.]. The TCCPC believes that EPA's conclusion with regards to the Texas program is
dir ectly attributable to such lack of information. EPA has failed to fully investigate, and understand, the extensive regulatory structure controlling the handling and disposal of CCRs in
Texas.

The TCEQ administers laws pertaining to the management and disp osal of industrial solid waste [Footnote 15: The term "solid waste" is defined as "garbage, rubbish, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility, and other discarded material, including solid , liquid, semisolid, or contained gaseous material resulting from industrial, municipal, commercial, mining, and agricultural operations from community and institutional activities." See TEX. HEALTH & SAFETY CODE §361.003(35); see also 30 TEX.ADMIN. CODE § 335.1(138)(A).]. Generators of industrial nonhazardous solid waste (e.g. CCRs) are required to keep records of the quantities generated, stored, processed, and disposed
of on

- site or shipped off

- site for storage, processing, or disposal [Footnote 16 Id. at § 335.009.
These records must include: (A) the description, character, and classification of each waste, and any changes and additional information required under § 335.6(c) and (d) of this title (relating to Notification Requirements); (B) the quantity g enerated; (C) except for conditionally exempt small quantity generators regulated under § 335.78 of this title (relating to Special Requirements for Hazardous Waste Generated By Conditionally Exempt Small Quantity Generators), the quantity held in on

- site storage as of December 31 of each calendar year; (D) the quantity processed or disposed of at each on

- site facility unit during the calendar year; (E) the method of storage, processing, or disposal as described by codes listed on the form or121

instructions; (F) the quantity shipped off

- site for storage, processing, or disposal each calendar year, including the name, address, and location of each off

- site facility and transporter receiving shipments; (G) the location of all hazardous waste accumulation areas, situated at or near any point of generation, where hazardous wastes under the control of the operator of the process generating the wastes are placed in containers and initially accumulated without a permit or interim status in accordance with § 335.69(d) of this title (relating to Accumulation Time).].

For those facilities where CCRs wil1 be disposed of on

- site, the owners/operators must register the disposal site with the TCEQ [Footnote 17: fd. at §335.6.]. As part of the registration process, various ty pes of information, including information concerning the type of waste management unit (e.g. landfill or surface impoundment), waste composition, waste management methods, facility engineering plans and specitlcations, groundwater monitoring plans, informa tion related to the geology and hydrogeology where the facility will be located, as well as closure and post

closure plans, among others, may be submitted to the TCEQ [Footnote 18: Id.]. The facility would also have to deed record the disposal area in the county deeds [Footnote 19: Id . at § 335.5.]. Once the information is submitted and approved, the facility is designated as a registered waste management unit.

The regulatory oversight necessary to ensure that these waste management units are protective of human health and the environment is generally performed by the TCEQ in three ways [Footnote 20: The TCEQ is charged with the duty to "safeguard the health, welfare, and physical property of the people and to protect the environment by controlling the manag ement of solid waste ...." TEX. HEALTH & SAFETY CODE §361.002(a).]. First, the TCEQ performs an analysis of all the above information and submittals (information related to waste composition, waste management methods, facility engineering plans and specifi cations, geologic and hydro

geologic, groundwater monitoring, closure and post

- closure plans) during the registration phase. In order to promote the proper management, storage and disposal of nonhazardous wastes, the TCEQ, pursuant to state regulations, ha s set forth a series of guidance documents [Footnote 21: 30 TEX. ADMIN. CODE §335.3.]. These guidance documents provide standards for various aspects of the waste management unit (landfills and surface impoundments) and their operations

the guidance addres ses components such as the liner, leachate collection system, cover, perimeter containment dikes, slope stability, erosion control mechanisms, hydrologic considerations, groundwater monitoring, and maintenance requirements, among others [Footnote
22: See T echnical Guideline No.2, industrial Solid Waste Landfill Site Selection; Technical Guideline No.3, Landfills; Technical Guidance No.4, Nonhazardous industrial Solid Waste Surface Impoundments; Technical Guidance No.6, Groundwater Monitoring; and Technical Guidance No. 10, Closure and Post

- Closure Cost Estimates.]. The TCEQ's review of the various submittals during the registration phase of the process is based on such guidelines and is comprehensive. Second, the TCEQ maintains regulatory jurisdiction and en forcement authority over the units to ensure that facilities follow through on their commitments to protect human health and the environment [Footnote 23: Texas has broad prohibitory language in regulation (30 TEX. ADMIN. CODE §335.4), the Texas Water Code (TEX. WATER CODE §26.121), and the Texas Solid Waste Disposal Act (TEX. HEALTH & SAFETY CODE Ch. 361). Texas' enforcement powers extend to discharges on land as well as surface waters and groundwater, activities that may create a nuisance, and activities that endanger public health and welfare.].122

Finally, the TCEQ administers a fornlal, thorough review and approval process over the closure and post

- closure care of the waste management units.

Therefore, proper construction, and operation of waste managemen t units is critical, as all such units have to ultimately be "closed" pursuant to the Texas Risk Reduction Program (TRRP).24 The closure performance standard is set forth in 30 TAC § 350.2(h) as follows:

"The person shall close a waste management facility component in a manner that minimizes or
eliminates the need for further maintenance and controls. The manner of closure shall also minimize or eliminate, to the extent necessary to protect human health and the environment, the post

- closure escape of waste , contaminants, leachate, run off, or decomposition products to the surrounding environmental media."

There are two main parts to this performance standard. The first addresses the overall expectations for the unit closure, while the second part addresses the applicability of TRRP to (1) the waste within the unit and (2) releases from the unit. If there is a release from the unit, the facility would have to address the release and would possibly have to apply the full extent of
TRRP for the assessment and remediation of the release. A release determination would have to be performed, and if a release is confitmed, the entity would have to perform a release assessment to determine to what extent the release has migrated from the unit into surrounding
environ mental media, and then perform the necessary remedy. The closure process, therefore, includes the managing of the waste in the unit as well as addressing any releases to the surrounding environmental media.

Without proper design and construction (and over all adherence to the set of guidelines established by Texas), significant groundwater data during operation of the unit, and the maintenance of management practice records, closure of waste management units in Texas
becomes an insurmountable obstacle.

In practice, therefore, information related to construction and operation of the on

- site unit is submitted to the TCEQ during the registration phase, and as noted, the elements reviewed by the TCEQ are precisely the same as those endorsed by EPA in the propos ed rules, and include information related to waste composition, waste management methods, facility engineering plans and specifications, geologic and hydro

- geologic, as well as groundwater monitoring. The TCEQ also has a set of comprehensive regulations re lating to the closure of such units. The intimate involvement of the TCEQ in all aspects of the waste management unit, including construction, operation, and ultimately closure is a fact that is often overlooked in EPA's critiques of the Texas program. Con trary to EPA's belief, the absence of a "pennit" for such units does not equate to lack of regulatory requirements. Indeed, the Texas program is comprehensive and protective of
human health and the environment.

Furthermore, should a facility owner or oper ator elect to operate a commercial nonhazardous disposal facility, the TCEQ imposes a set of comprehensive regulatory requirements, 24 30 TEX. ADMIN. CODE. §335.8. TRRP regulations can be found at 30 TEX. ADMIN. CODE Chapter 350, administered by means of a permitting process [Footnote 25: ld . at Chapter 335, Subchapter T.]. Similarly, if the waste management unit is located off

- site, it is subject to a permit. The123

petmitting process for off

- site and commercial facilities is, yet again, comprehensive and
add resses the same elements endorsed by EPA in its proposed rules.

The TCCPC believes that the TCEQ's registration process for on

- site units is comprehensive, as it involves the submittal and ultimate review by the TCEQ of detailed information related to the construction, operation, closure, and post

- closure of the unit. Nevertheless, should EPA believe that the process currently in place for on

- site units in Texas needs to move to a permitting process or otherwise be codified in the regulations to make obvio us the pre

- approval nature of the process, the TCCPC is committed to working with the TCEQ and EPA in making any such modifications to the current regulations. The TCCPC believes that this type of an initiative alleviates any concerns associated with EPA's proposed rules, is more efficient, and most importantly, will address the purpose of the proposed rules

- which after all, is the implementation of regulations that eliminates the occurrence of catastrophic releases of CCRs

Response: The Agency acknowledge s and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorpora te the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy o f the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07488

- 1 

### Organization 1 

### : Illinois Environmental Protection Agency 

### Commenter 1 : Scott O. Phillips Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine C ontext Assigned/Due:



### Comment Excerpt Text: The Illinois EPA prefers to regulate coal combustion residuals (CCR) under our existing State regulations. We believe that the current Illinois regulations are protective of human health and
the environment.124

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoun dments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on h ow EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has resp onded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comme nts relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state progra ms to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07488

- 10 

### Organization 1 

### : Illinois Environmental Protection Agency 

### Commenter 1 : Scott O. Phillips Commenter Type: State Government Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Illinois EPA respectfully requests that USEPA work with the states through such organizations as ECOS and ASTSWMO to develop an effective and efficient CCR program that can be
i mplemented at the state level.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is
also referred to Unit IX of th e preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07489

- 4 

### Organization 1 

### : Council of Industrial Boiler Owners (CIBO) 

### Commenter 1 : Robert D. Bessette Commenter Type: Trade Association Classification: Substantive125

Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: State Subtitle D programs EPA has furthered this stigma by not developing regulations for managin g CCB in past regulatory determinations under Subtitle D, and not assisting the states in developing consistently robust Subtitle D, CCB residual waste programs. Unfortunately, this has allowed for misinformation and inaccurate descriptions of CCB as “toxi c” or “hazardous” when, in fact, based on EPA’s own hazardous waste classifications, this material would be neither considered nor regulated as a hazardous waste. What makes more sense is to modify Subtitle D regulations to mirror exisiting exemplary state programs that incorporate leaching test data to determine the best management strategies for CCBs including criteria for beneficial use in manufacturing; highway construction; structural fills (that integrate both design and a supported end

- use); and the use of CCBs in mine land reclamation. States have developed their own programs that are adapted to the particular characteristics of the locale and wastes being handled. As proposed, EPA’s Subtitle D proposal needs significant revisions to be effective and build on existing, successful state programs. There is an existing, effective structure for CCB regulation. This permits continuing flexibility and adaptability to local conditions. Additional disposal requirements can be developed for nationwide applicat ion without reclassifying CCBs as Subtitle C waste. CCBs, based on their chemical, physical and leaching characteristics, have the potential to produce benefits when properly managed in the reclamation of coal mine lands, mine subsidence control, mine

- fire control, the amelioration of mine drainage problems as well as many other engineering, construction and manufacturing solutions. Many CIBO members operate facilities in states with longstanding, fully developed, environmentally successful CCB programs. As recognized by the National Academy of Sciences in its Report referenced bellow, it is possible that some states do not have fully developed management programs and therefore could benefit from clearer federal direction and support. CIBO members are strong ly vested in the ability to work with their state regulators who are knowledgeable in the local geology, hydrology, climatology, ecology, and other factors unique to the their state to develop management practices that incorporate appropriate site

- specific factors. CIBO strongly advocates continuing flexibility in state

- developed CCB management programs which allow states to address characteristics unique to their particular environment. Data compiled for this rule demonstrate that improved state oversight, changing practices and knowledge gained from past practices have all led to greatly improved environmental protection. A joint US Department of Energy (DOE)/EPA Report in 2006 concluded that states are working to ensure that CCB is properly managed.[Footn ote 2: Coal Combustion Waste Management at Landfills and Surface Impoundments, 1994

– 2004 , DOE/PI

- 0004, available at www.osti.gov/bridge. (DOE/EPA Report)] As recently as April 2009, DOE again concluded that Subtitle C regulation of these wastes is “unwar ranted.” [Footnote 3: April 1, 2009 DOE Memorandum to EPA Resource Conservation and Recovery Director Matt Hale, EPA

- HQ

RCRA

- 0640

- 0084.] As contemplated by Congress in establishing the federalism structure of RCRA, states look to EPA to provide leadership in addressing the proper management of CCBs. EPA worked with an inclusive group of stakeholders that included states, industries, utilities, waste management entities, environmental groups and others to develop and publish the 1999126

“Guide for Industrial W aste Management” (EPA Guide). [Footnote 4: EPA, Guide for Industrial Waste Management , EPA

- HQ

- RCRA

- 1999

- 0050.] The EPA Guide provides specific guidance on residual waste management, covering a full range of industrial wastes. It establishes objectives for environmental protection and provides a reasonable, risk

- based, tiered approach to managing waste, which is an approach that CIBO strongly advocates be part of any state or federal program. At the time of its development, participants expected the EPA Guid e to serve as the basis for state regulatory programs. The EPA Guide and RCRA itself, recognize that all industrial wastes are not the same and each type must be carefully characterized to determine appropriate handling methodologies. The known variability among wastes is further supported by the independent evaluation of the variation of CCR characteristics undertaken by the National Academy of Sciences (NAS) in its Report “Managing Coal Combustion Residues in Mines.” (NAS Report).[Footnote 5: National
Aca demy of Sciences (2006), Managing Coal Combustion Residues in Mines, Washington, D.C.,
EPA

- HQRCRA

- 2008

- 0329

- 0500.]While the NAS Report focused on the practice of minefilling with CCB, the overarching issues of environmental impact are the same. EPA should consider the contents of the EPA Industrial Waste Guide, rather than the categorical approaches proposed in this rule, and allow for differentiation of disposal methodologies that reflect science and measurable environmental consequences

Response: The Ag ency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The comme nter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 6 

### Organization 1 

### : Nebraska Departmen t of Environmental Quality (NDEQ) 

### Commenter 1 : David B. Haldeman Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.3 

### Comment Excerpt Text: Nebraska already has a comprehensive and protective regulatory program in place for the responsible management of these materials. We respectfully request that EPA maintain the Bevell Amendment and adopt an approach under Subtitle D for the management of CCRs in its
final rule.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impo undments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the127

technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 7 

### Organization 1 

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

### Commenter 1 : David B. Haldeman Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The State of Nebraska has a well established permitting and compliance program that has effectively managed CCR for sevente en years. The Nebraska Department of Environmental Quality (NDEQ) is the lead state agency that implements the permitting and compliance program. The statutory basis for the program is found in the Nebraska Environmental Protection Act, the Integrated Soli d Waste Management Act, and the Solid Waste Disposal Act.

The Environmental Protection Act, among other things, establishes the NDEQ’s rule making authority, permitting authority, and enforcement authority.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07608

- 2 

### Organization 1 

### : Commenter 1 : Sarah DePriest Commenter Type: Private Citizen Classification: Substantive Comment Category:128

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: More than two dozen individual state regulatory agencies

- environmental regulatory agencies, state Departments of Transportation (DOTs) and public utility commissions

- favor non

hazardous coal ash regulation. State environmental reg ulatory programs have become more robust and have the regulatory infrastructure to implement a federal Subtitle D program for coal ash. A 2006 EPA/DOE report documents the pronounced improvement in the management of coal ash by utilities at new and expande d disposal facilities and strengthened regulatory oversight of coal ash disposal by state regulatory agencies.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulg ating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### ____________________________________________________________________ Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07791

- 22 

### Organization 1 

### : Georgia Department of Natural Resources (GAEPD) 

### Commenter 1 : Jim Brown for Mark Smith Commenter Type: State Government Classifi cation: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 9.4.5 7.1.2.4 

### Comment Excerpt Text: EPA requests comment, at 75FR35218, regarding the cost/benefit estimation contained in the Regulatory Impact Analysis. GAEPD's evaluation is that the avoided costs due to "Catastrophic Failure" are skewed and significantly over

- estimated based solely on the Kingston, TN incident. There have been no similar incidences, before or since, relating to CCR impoundments. The root cause analysis developed for TVA regarding the Kingston incident, summarized at 75FR35150, states that the failure occurred through successive expansions and the inclusion of " ... a thin, weak layer of fly ash ('slime') on which (the dike) had been found ed (that) failed by sliding." GAEPD design requirements for Subtitle D units, and our NPDES and Safe Dams programs, have procedures and permit requirements in place to prevent just such a failure.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to volume XII of this document that addresses comments on the RIA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07791

- 7 

### Organization 1 

### : Georgia Department of Natural Resources (GAEP D) 

### Commenter 1 : Jim Brown for Mark Smith Commenter Type: State Government129

Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: GAEPD rules specifically define CCRs as "Industrial Waste" at 391

- 3

- 4

- .01(27) and "Solid
Waste" at 391

- 3

- 4

- .01(65).

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07791

- 8 

### Organization 1 

### : Georgia De partment of Natural Resources (GAEPD) 

### Commenter 1 : Jim Brown for Mark Smith Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: GAEPD rules require that, " ... no person shall engage in solid waste handling or construct or operate a solid waste handling facility .. . without first obtaining a permit from the Director authorizing such activity." [391

- 3

- 4

- .02(1)] However, the rules a lso provide for discretion in issuing permits; " . .. the Director may (emphasis supplied) issue permits for solid waste handling provided the application is judged complete and meets the requirements of the Georgia Comprehensive Solid Waste Management Act and these Rules." [391

- 3

- 4

- .02(2)]

• New permits and major modifications of existing permits are subject to the " ... siting and design standards .. .in effect on the date the modification (or new permit) is approved." [391

- 3

- 4

- .02(8)] Criteria for Sitin g are found at 391

- 3

- 4

- .05, and Criteria for Design and Operation are at
391

- 3

- 4

- .07.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07791

- 9 

### Organization 1 

### : Georgia Department of Natural Resources ( GAEPD) 

### Commenter 1 : Jim Brown for Mark Smith Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.4.4.2 4.4.4.3 4.4.4.4 4.4.4.5 4.4.4.6 

### Comment Excerpt Text: Siting criteria include: requirements if siting in a 100

- year floodplain [391

- 3

- 4

- .05(1)(d)]; restrictions on siting in wetlands [391

- 3

- 4

- .05(1)(e)]; restrictions on siting " ... within 200 feet (60 meters) of a fault that has had displacement in Holocene time ... " [391

- 3

- 4

- .05(1)(f)];130

restrictions on siting in " ... seismic impact zones ... " [391

- 3

- 4

- .05(1)(g)]; and restrictions on siting in " ... unstable areas ... " [391

- 3

- 4

- .05(1)(h)]. These requirements are virtually identical to the proposed 40CFR25 7.60

- 64.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07793

- 14 

### Organization 1 

### : South Dakota Department of Environmental and Natural Resources 

### Commenter 1 : Vonni Kallemeyn Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 11.2.5 

### Comment Excerpt Text: In summary, in South Dakota we believe we have in place the statutes, rules, and permitting
authorit y necessary to regulate the safe management and disposal of CCR.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subt itle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07793

- 3 

### Organization 1 

### : South Dakota Depart ment of Environmental and Natural Resources 

### Commenter 1 : Vonni Kallemeyn Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 11.2.5 

### Comment Excerpt Text:
South Dakota has a strong solid waste program and we have managed CCR in a responsible
manner for more than three decades.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.1 31

________________________________________________________________________________ 

### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07797

- 3 

### Organization 1 

### : Granger III and Associates, LLC (Granger) 

### Commenter 1 : Ralph Nurenberg Commenter Type: Beneficial User Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: It is our position that Michigan's regulation of CCR materials is both effective and pragmatic and could, along with other states with effective CCR regulations, serve as a model to better develop national requirements.

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

re ferred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to t he final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07798

- 1 

### Organization 1 

### : Citizens Against Ruining the Environment 

### Commenter 1 : Ellen Rendulich and Sandy Burcenski Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 1.4 

### Comment Excerpt Text: We have two polluting coal fired power plants in Will County, owned by Midwest Generation; one of these plants is in Romeoville and one here in Joliet. They are both grandfathered from the
Clean Air Act and since 1996 the Joliet facility has been exempt from the IL Class 1 Groundwater Standards. The Joliet facility also ranks in the top 40 for contaminated sites in the
United States.132

there is an unlined coal ash landfill known as Lincoln Stone Quarry also owned b y Midwest Generation who has been dumping coal ash and slag in this quarry since 1962. Since 1995 the IEPA has been aware that this landfill is the source of toxic contaminates and heavy metals such as "arsenic" which have already been detected off site. T hey also know there is a strong indication that these contaminates and toxic metals can potentially impact our drinking water.

According to the report by Environmental Integrity, the IEPA has allowed “ground water with concentrations up to 52 times stand ards for protection of public health to flow off site” from Midwest Generation’s unlined coal ash landfill. Why are they allowing them to continue poisoning our water?

Why have exemptions, adjusted and relaxed standards been given to this unlined coal ash landfill? There are approximately 94 private wells within a one mile radius of this facility and the majority of Will County’s water is well water. What is the IEPA doing to protect these wells, our groundwater and the DesPlaines River from contamination? How do we know that we aren’t contaminated already? We’d like to reiterate, that while the IL Environmental Protection Agency has known, since 1995, that contamination is flowing toward our groundwater they have not forced them to comply to the same stand ards as other industries. What do they intend to do to protect our groundwaters?

IEPA’s own reports confirm contamination has flowed off site, and may have already contaminated private wells and major waterways, and up to this point has done has done not hing to rectify past exceedances. It is obvious that the IEPA is not doing their job to protect the health of the public and the environment.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of t he preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical s tandards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulati on. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07799

- 3 

### Organization 1 

### : Municipal Electric Authority of Georgia (MEAG Power)133



### Commenter 1 : Brad Spooner Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Georgia already has a state regulatory program with permitting, liner, and groundwater monitoring controls for CCBs similar to those under the Subtitle D and Subtitle D

- prime approaches.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discus sion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the fin al subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, howev er, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08211

- 1 

### Organization 1 

### : North Dakota Department of Health 

### Commenter 1 : L. David Glatt Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The North Dakota Department of Health (NDDoH) regulates waste management activities in the state and has primacy for all of the RCRA programs. Our state initiated regulatory control of CCRs as a solid waste thirty years ago.

Response: The Agency acknowl edges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is refe rred to Unit VI of the preamble for a presentation and discussion of the134

technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to

incor porate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the fina l rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08211

- 27 

### Organization 1 

### : North Dakota Department of Health 

### Commenter 1 : L. David Glatt Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
References:

North Dakota Department of Health, "Coal Combustion Waste

- North Dakota Regulatory Perspective" 2002; http://www.ndhealth.gov/wm/Publications/CoalCombustionWasteRegulatoryPerspective.pdf

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state135

programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08211

- 3 

### Organization 1 

### : North Dakota Department of Health 

### Commenter 1 : L. David Glatt Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.1 

### Comment Excerpt Text: To this point, the state of North Dakota promulgated standards essentially equivalent to the currently proposed Subtitle D option over twenty years ago with location standard s and requirements for operation, design, groundwater monitoring/corrective action, closure/post

closure, and financial assurance. The program has provisions for public participation and broad provisions for open records. To our knowledge, no case of impac t to a public or private water supply well exists, and the NDDoH seldom receives concerns from state citizens on CCRs.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 13 

### Organization 1 

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

### Commenter 1 : Shari T. Wilson Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.3 

### Comment Excerpt Text: Beginning in 2007, Maryland has proposed and implemented new rules for CCR generators including reporting, new rules for disposal, obtained and implemented legislative authorization for a per ton fee to operate the programs, and is now developing rules to govern saf e beneficial

re use of CCRs.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 2 

### Organization 1 

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

### Commenter 1 : Shari T. Wilson Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.3136



### Comment Excerpt Text: Beginning in 2007, Maryland proposed and implemented new rules for CCR generators including reporting and disposal, obtained and implemented legislative authorization for a per ton fee to operate the program, and is now developing rules to govern safe beneficial re use of
CCRs.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 46 

### Organization 1 

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

### Commenter 1 : Shari T. Wilson Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.5.2.2 

### Comment Excerpt Text: Maryland examined the issue of transportation in a recent rulemaking which imposed standards on the transportation of coal combustion byproducts in Maryland (see COMAR 26.04.10.03,
which became effective in October 2010, which can be viewed at http://www.dsd.state.md.us/comar/comarhtml/26/26.04.10.03.htm . The problem encountered in transportation is not whether the material is transported to a legitimate disposal facility; instead,
it is whether the material is blowing off the trucks, or being dragged out onto public roads from the loading or disposal sites, and liberated into the air by traffic or washed off by precipitation into streams. In order to address these concerns, Maryland now requires that: “(a) Vehicles transporting coal combustion byproducts shall be fully enclosed, or fully enclosed on all sides and covered with a firmly secured canvas or other covering, so as to prevent any coal combustion byproducts from blowing off, falling off , or spilling out of the vehicle, or the coal combustion byproducts shall be handled and transported in sealed containers designed for transportation of powdery solids; (b) Before leaving a site where coal combustion byproducts are loaded or off loaded, vehicles transporting coal combustion byproducts shall be rendered clean and free of excess material or debris that could blow off, fall off, or spill during transportation; (c) Coal combustion byproducts being loaded into or off loaded from a vehicle sh all be sufficiently moistened or otherwise conditioned or contained to prevent particulate coal combustion byproducts from becoming airborne or causing fugitive air emissions; (d) Following loading but prior to any transportation of coal combustion byprod ucts, the transporter shall inspect each vehicle that contains coal combustion byproducts to ensure that the requirements of §B(4) of this regulation are met; (e) A transporter of coal combustion byproducts shall maintain an inspection log for each vehicl e that shall be maintained in the vehicle at all times during transport of coal combustion byproducts, and for 30 days thereafter that shall certify compliance with the standards in §B(4) of this regulation; and (f) An inspection log maintained by a trans porter of coal combustion byproducts shall consist of an entry for each inspection of a vehicle that has been conducted by the transporter. An inspection entry shall consist of the following information:137

(i) The date the inspection occurred; (ii) The tim e of day the inspection occurred; (iii) The name of the person conducting the inspection; (iv) The condition of the vehicle and any corrective action required to ensure compliance with this subsection, for example, "truck cleaned and covered" for a vehic le that meets the requirements, or "cover OK, right side wheels hosed off again" for a vehicle that was properly covered but which required re cleaning of wheels on the right side; and (v) The signature of the individual certifying compliance with §B(4) o f this regulation.”

These conditions are considered adequate to insure that the materials are managed in an adequately protective manner, without the incredible additional burden that regulating the
materials under the manifest rule would entail for both the haulers and the States.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 74 

### Organization 1 

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

### Commenter 1 : Shari T. Wilson Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Maryland has undertaken an extensive program to adopt comprehensive regulations governing CCR disposal, transportation, and use in mine reclamation. New regulations were promulgated in December 2008, and additions and amendments have refined and expanded the scope in several actions since that time. The key piece of the regulatory framework is COMAR 26.04.10, Management of Coa l Combustion Byproducts, which can be viewed in its current form at http://www.dsd.state.md.us/comar/SubtitleSearch.aspx?search=26.04.10.* . It also references other pertinent regulations that govern industrial waste landfills including CCR landfills, and

m ine reclamation activities including placement in coal and non coal mines. More information concerning the adoption of these regulations, including all of the comments received and MDE’s responses to those comments are available on our website at http://w ww.mde.state.md.us/programs/Land/SolidWaste/CoalCombustionByproducts /Pages/Programs/LandPrograms/Solid_Waste/ccbs/index.aspx

.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 76 

### Organization 1 

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

### Commenter 1 : Shari T. Wilson Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:138

Other Sections: 10.5.2.3 

### Comment Excerpt Text: The Depa rtment would be willing to provide additional information concerning the composition and activities of the program as requested.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 77 

### Organization 1 

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

### Commenter 1 : Shari T. Wilson Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: the Department has re cently undertaken an extensive program to regulate CCRs. Implementation of the program occurs through the Land Management Administration’s Mining and Solid Waste Programs, the Air and Radiation Management and Water Management Administrations, as well
as th e Office of the Attorney General. In addition to undertaking permitting, monitoring, inspection, and closure plan and field evaluations, the Department is currently engaged in a number of enforcement actions involving CCR sites.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 81 

### Organization 1 

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

### Commenter 1 : Shari T. Wilson Commenter Type: State Government Classification: Substantive
Co mment Category: Current Task: Examine Context Assigned/Due: Other Sections: 8.6.1 

### Comment Excerpt Text: The Department affirms that the BBSS site in Anne Arundel County, Maryland, which was cited by EPA as a site with confirmed impact due to CCRs, is in fact such a case. However, commenters have used this example to support the position that the States have not effectively addressed coal combustion residuals, and that the only alternative is to regulate these materials as
hazardous wastes.

The Departme nt points out that EPA’s discussion of this case in the Preamble makes reference to a Consent Order that included a significant penalty as well as remedial, closure, and post closure uses that require cleanup and closure that is protective pf public health and the environment.

While this site does show that Maryland’s previous regulatory requirements needed to be139

improved, it did not show that that CCR needed to be regulated as a hazardous waste. At the time of that enforcement action, Maryland had alread y initiated a process to promulgate new regulations for the disposal, storage, transportation, and use in mine reclamation that include permitting, design, monitoring and closure requirements that are very similar to and in some areas more protective than the proposed federal regulations. This approach, as well as the success of the 40 CFR 258 regulations governing municipal waste landfills, demonstrates that designation as a hazardous waste is not the only mechanism available to ensure that public health

a nd the environment are protected from the potential adverse effects of coal combustion
residuals.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08221

- 7 

### Organization 1 

### : NextEra Energy, Inc. 

### Commenter 1 : Tomey Tuttle Commenter Type: Electric Utility Company Classification: Substant ive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: In Georgia CCR is identified as an industrial solid waste and regulated under the solid waste management regulations.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08234

- 2 

### Organization 1 

### : Colorado Department of Public Health and Environment 

### Commenter 1 : Charles G. Johnson on behalf of Joe Schieffelin Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: 2) Background: .. a) The Solid and Hazardous Waste Program regulates all disposal and beneficial re

- use of Coal
Combustion Residuals in Colorado.140

b) Colorado has representative analytical data on the Coal Combustion Residuals produced in
Colorado and no data has ever indicated levels of contamination close to those that would make
the residuals hazardous waste.

c) Colorad o has ground water monitoring data around Coal Combustion Residuals de

- watering and disposal areas and no data indicates a release to ground water has occurred.

d) However, if a release were to occur: Colorado has enforcement authority to rapidly and
eff ectively deal with non

- compliant situations, including releases to soil, ground water, surface water, and exposures to people. This includes administrative order authority with injunctive relief, corrective action authority, and penalties up to $10,000/day /violation. Colorado actively uses these authorities in implementation of our Solid Waste Program.

e) Through this same regulatory construct, Colorado safely and effectively regulates municipal solid waste every day, a waste stream with higher hazards th an Coal Combustion Residuals because it includes household hazardous wastes, heavy metals, and organic, acidic, and alkaline
materials.

Response: The Agency acknowledges and appreciates the comment. B ecause EPA is deferring
its final Bevill Determination , EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency h as made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08243

- 1 

### Organization 1 

### : Commenter 1 : Gary Kuklish, et. al. Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 6.1.1 3.1.1 

### Comment Excerpt Text: LaBelle, Pennsylvania is a very small community of approximately 100 people. Most have live d in this town all of their lives: they love their homes, families and the rolling Monongahela River valley. Their once quiet community is being invaded by an insidious problem

– toxic coal ash

– that’s raining down on them from the sky, leaching into thei r water, and causing them to worry about their health and the health of their children and grandchildren. In the past five years, 38 of their neighbors, friends and family members have been diagnosed with cancer: some have died.

For decades, the PA DEP h as advocated for the placement of this dangerous waste. In fact, the PA DEP was instrumental in allowing the massive LaBelle site to become the massive coal ash141

dump site it is today.

Residents firmly believe that without the federally enforceable C desi gnation, the PA DEP would return to status quo

– allowing the LaBelle site to continue to accept more toxic coal ash for
decades to come.

The undersigned residents respectfully seek the Subtitle C option

– federally enforceable rules to protect them from the harmful pollution caused by toxic coal ash.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for t he disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is
also referre d to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08251

- 27 

### Organization 1 

### : Massachusetts Department of Environmental Protection 

### Commenter 1 : James C. Colman Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.3 

### Comment Excerpt Text: The Massachusetts solid waste regulations in clude extensive beneficial use regulations that were completely rewritten in 2005 (see Appendix B). The BUD program only applies to materials defined as solid wastes. The BUD program does not apply to materials regulated as hazardous waste, since they are regulated under different statutory and regulatory authority in Massachusetts. The definition of "Solid Waste" in the regulations specifically excludes "hazardous wastes as defined and regulated pursuant to 310 CMR 30.000", which are the
Massachusetts haza rdous waste regulations. There is no parallel BUD program in the hazardous waste program. To adopt a parallel BUD program under the hazardous waste regulations would require a lengthy regulation development process (e.g. new waiver regulations) that would likely take several years.

The BUD regulations include four categories of BUDs, the applicability of which depends on the type of use to which a material is to be put. In addition, BUD reuse standards were developed to
limit the contaminant levels in sec ondary materials depending on the type of use and the reuse environment. The BUD standards are based on a quantitative risk assessment approach for use of secondary materials in restricted and unrestricted applications when evaluating risk. The

assessment incorporates three methods for establishing criteria for comparison with secondary material constituent concentrations. Method 1 incorporates a list of hazardous material values that have been calculated based upon a predetermined set of exposure scenarios . Secondary
materials that contain constituents of concern that do not exceed these values have demonstrated142

no significant risk to the public health, safety and the environment. Method 2 may be used to
derive risk criteria when unavailable in the Method 1 assessment. Method 3 involves an
assessment of total risk based on site

- specific information.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08251

- 28 

### Organization 1 

### : Massachusetts Department of Environmental Protection 

### Commenter 1 : James C. Colman Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.3 

### Comment Excerpt Text: Solid Waste Approach to Benefi cial Use

Under the Massachusetts solid waste program, a material is a solid waste unless it is reclassified through a BUD permit that specifies that the waste is no longer a solid waste as long as the
material is used in accordance with the conditions of the BUD permit. Any non

- authorized use of the material would be in violation of the solid waste regulations and the BUD permit and the material would revert to classification as a solid waste, requiring proper disposal in accordance
with the solid waste r egulations.

In addition to benefits the material may provide to a product, beneficial use of the material can reduce the volume of solid waste requiring disposal. In a state with less capacity than is needed for disposal of all types of solid waste this is an important consideration. For example, beneficial use of CCR reduces the mining of materials for cement products and significantly reduces the volume of disposal capacity necessary for disposal of CCR.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08251

- 3 

### Organization 1 

### : Massachusetts Department of Environmental Protection 

### Commenter 1 : James C. Colman Commenter Type: State Governme nt Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:143



### Comment Excerpt Text: In the Federal Register notice, EPA requested information regarding how coal ash is regulated in the states. The Commonwealth of Massachusetts has well developed hazardous waste (Subtitle C) and solid waste (Subtitle D) programs that have been in place for decades. These two programs have been highly successful in closing and remediating hazardous waste facilities and unlined solid waste landfills that existed prior to establishment of the current programs, and establishing enviromnentally protective design and performance standards for active facilities.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08251

- 48 

### Organization 1 

### : Massachusetts Department of Environmental Protection 

### Commenter 1 : James C. C olman Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Appendix A Massachusetts General Law Chapter 111, section 150A Coal ash exemption paragraph

Ash produced from the combustion of coal, including but not limited to fly ash and bottom ash, shall not be construed as refuse, rubbish, garbage, or waste material under this section when used as a raw material for concrete block manufacture, aggregate, f ill, base for road construction, or other commercial or industrial purpose, or stored for such use. A location where such use or storage takes place may be constructed, established, maintained, and operated without being construed as a facility or site for a facility under this section, and no assignment or approval from the board of health or the department shall be required for such construction, establishment, maintenance, or operation; provided, however, the department shall have jurisdiction to
determi ne, after notice and hearing, that the establishment or operation of such a location has created a nuisance condition by reason of odor, dust, fires, smoke, the breeding or harboring of rodents, flies or vermin, or other causes, and to prevent or order aba tement thereof; and provided, further, that no final disposal of ash produced by the combustion of coal may be accomplished by burial of such ash in the ground, other than as base for road construction or fill, unless the place where such disposal takes pl ace has been assigned for such disposal by the board of health and plans for such disposal have been approved by the department pursuant to this section. The department may waive the requirements of the preceding paragraphs of this section and the applicat ion of any regulations, or portions thereof, promulgated under the preceding paragraphs of this section as they may apply to the disposal by burial of ash produced by the burning of coal, and shall review and may approve the plans, site and method of stora ge upon a determination that no nuisance is created and damage to the environment is minimal. Use of ash produced from the combustion of coal as intermediate cover material over rubbish at sanitary landfill facilities may be permitted by assignment of the board of health with approval of the department under144

this section.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this s ubtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the comme nter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08253

- 35 

### Organization 1 

### : Xcel Energy 

### Commenter 1 : Terry Coss Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 

### Comment Excerpt Text: 16 State Programs: Xcel Energy actively operates CCR landfills and impou ndments in three states

- Minnesota, Wisconsin and Colorado. All three states have programs that govern the design, operation and
eventual closure of such facilities. Minnesota and Wisconsin are similar in that CCR landfills are regulated in much the same m anner as other RCRA

- D landfill facilities, with a state review and permitting process that requires iiners and leachate collection, groundwater monitoring, capping, corrective action plans and post closure care. Colorado implements landfill requirements un der a program involving state and/or localIy reviewed design and operating plans. Colorado has significantly different climactic and geologic conditions than either MN or WI, and thus allows alternative designs that reflect the arid climate (meaning little leachate generation), passively protective characteristics of the location (presence of low permeability natural soils or rock formations), and deep groundwater (hundreds of feet). Our design engineers and State and local
authorities take these and other factors into consideration to ensure the design is protective of potable groundwater, human health and the environment. With respect to CCR impoundments, MN and WI regulate these under NPDES permit programs, although at our previously described
Sherco faci lity, closure after dewatefing is eventually completed under the state solid waste program oversight and authority. In Colorado, the few small CCR impoundments we operate are primarily regulated under facility NPDES pelanits, although the state also has so lid waste surface impoundment rules in place with revisions under development (expected to be final in 2011) to more broadly regulate surface impoundments of all types.

The states are in the best position to comment on concerns over dual regulation and

o verlap/conflict with state programs, but as a regulated entity this issue is of great concern to us.
RCRA

- C would be particularly disruptive and for this, as well as numerous other reasons described previously, is unworkable and counterproductive. States s hould continue to take the lead in regulating CCRs, given the collective knowledge, wisdom and experience of state and local officials and the professional staff engineers, geologists and hydrologists, who have145

extensive experience managing CCRs. These exp erts and authorities are in the best position to determine the appropriate design for a CCR management or disposal facility in their area. The optimum solution would be for EPA to allow states that have mature and effective programs to continue to implemen t them unchanged without federal interference, and to focus federal efforts on those states that are lagging. This would best be achieved by issuing a performance

- based
RCRA

- D Prime rule that offered the states the flexibility to implement protective stand ards appropriately tailored to local circumstances, such as area geologic and climatic conditions.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rati onale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08261

- 1 

### Organization 1 

### : Black Warrior Riverkeeper, Inc. 

### Commenter 1 : Eva Dillard Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 6.1.1 

### Comment Excerpt Text: The surface impoundments are at three of Alabama Power Company’s coal

- fired power plants near the Black Warrior River and its tributaries: Miller Steam Plant, Gorgas Steam Plant and Greene County Steam Plant. These steam plants are recognized as among the dirtiest nationwide.
Miller Stea m Plant, on the Locust Fork of the Black Warrior, emitted more mercury in 2007 than any other coal

- fired power plant in the country, according to EPA data compiled by the Environmental Integrity Project. Gorgas Steam Plant ranked 28th in this category (Tot al Mercury Pounds Emitted: 2007). In the category of "Top 50 US Power Plant Mercury Emitters by Pounds per GWh: 2007" Greene County Steam Plant ranked 8th, Miller Steam Plant ranked 15th, and Gorgas Steam Plant ranked 19th. The ash impoundments at each of these facilities are unlined and largely unregulated.1 To our knowledge, there is no groundwater monitoring being regularly performed at any of them. The only groundwater testing and monitoring apparent and available in the ADEM electronic permit files is in response to specific spills, not as a regular component of an environmental compliance plan. The Black Warrior River and its tributaries are a
tremendous natural resource for the area. The National Park Service has rated the Black Warrior’s three forks in the top 2% of United States streams for “outstandingly remarkable values.” The river’s Sipsey Fork is Alabama’s only federally designated Wild and Scenic River. The Black Warrior River watershed is home to 127 freshwater fish species (3 of which are
fed erally listed as endangered), 46 species of mussels (5 of which are federally listed as endangered), 15 turtle species (1 of which is federally listed as threatened), an endangered snail, and numerous other aquatic animals. The three forks of the Black War rior River supply around half the drinking water for the Birmingham area, Alabama’s largest population center. The upper146

Black Warrior River, which is downstream of Miller and Gorgas, supplies drinking water to large areas in Jefferson County (the most pop ulous county in the state), the city of Bessemer, and more. The Black Warrior River watershed is a popular destination for outdoor recreation of all kinds, including fishing, swimming, paddling and boating. The river is also heavily relied upon
for commerc ial navigation and industrial process water, making it a silent giant in the state's

economy.

The Gorgas Ash Pond Dam

The Gorgas Ash Pond Dam is located on Rattlesnake Creek, a tributary of the river’s Mulberry Fork, and constructed of dirt and rock. T his impoundment was first put into service in 1954. It has been expanded twice, first in 1979 and again 2007. According to Alabama Power, it is not known whether licensed engineers were involved in its initial construction. When it was last
measured in 200 9, the impoundment covered 420 acres and had the capacity to store approximately 17,342,755 cubic yards of ash. The dam for the impoundment is measured to be 140 feet high and it is sited on Rattlesnake Creek just prior to its confluence with the Mulberry Fork. According to the National Inventory of Dams (“NID”) database, the Gorgas Ash Pond is rated a “significant hazard,” that is its failure would lead not only to possible loss of life but to likely significant environmental and economic damage.2 No feder al or state agency regulates the Gorgas Ash Pond Dam; no federal or state agency currently inspects or evaluates the Gorgas Ash Pond Dam.3 Because of both agricultural and industrial pollution, the Mulberry Fork has less aquatic biodiversity than the other two Black Warrior forks. However, it is home for the many residents who live there and the site of significant recreational use by the community. Many nearby residents swim, boat and fish in the area. Fisherman cast lures and nets in the very slough where the Gorgas Ash Pond discharges.

The Miller Ash Pond Dam

The Miller Ash Pond Dam, which is an earthen berm, is located on a hillside adjacent to the Locust Fork of the Black Warrior River. This impoundment was placed in service in 1978. When
it was last measured in 2009, the impoundment covered 341 acres and had the capacity to store approximately 21,951,362 cubic yards of ash. The dam for the impoundment was measured to be 170 feet high. According to the National Inventory of Dams (“NID”) database, the Miller Ash Pond is rated a “low hazard,” which means that its failure would most probably not lead to loss of life but would result in significant environmental and economic damage. No federal or state agency currently regulates the Miller Ash Pond Dam; no federal or state agency inspects or
evaluates the Miller Ash Pond Dam. Upriver of the Miller Ash Pond Dam, the Locust Fork is one of Alabama’s longest remaining free

- flowing rivers. Just upstream of Miller, the Locust Fork enters the upstream end of Bankh ead Lake, a riverine impoundment created by Bankhead Dam far downstream. The Locust Fork around Miller is a remote and scenic stretch of mostly forested river where wildlife is common. This area is home to a number of residents, has several boat launches, and is the site of significant recreational usage including fishing at the mouth of the unnamed tributary where the ash pond discharges. Upon information and belief, the Miller Ash Pond Dam is constructed on top of the headwaters of an unnamed tributary to the Locust. As a result, there is a constant seep from the toe of the dam, which allows not only the migration of pollutants into the adjacent wetlands, unnamed tributary and he Locust Fork but also has the147

potential to undermine and destabilize the base of the dam.

The Greene County Ash Pond

The Greene County Ash Pond, an earthen berm enclosing the entire ash disposal area, is located on a bend of the lower Black Warrior River. The impoundment was placed in service in 1964 and expanded in 1996. It is n ot known whether licensed engineers were involved in its initial construction. When it was last measured in 2009, the impoundment covered 474 acres and had the capacity to store approximately 8,600,000 cubic yards of ash. The dam for the impoundment

was me asured to be 25 feet high. The Greene County Ash Pond is not listed in the NID database, perhaps because by construction and location it is less of a dam and more of a vast bermed disposal area. No federal or state agency currently regulates the Greene Cou nty Ash Pond; no federal or state agency regularly inspects or evaluates the Greene County Ash Pond. This bend in the river is the site of numerous wetlands, a number of which border the disposal area. Upon information and belief, the Greene County Ash Pon d is constructed on wetlands, creating yet another complication. The unmonitored migration of water from the unlined ash pond to the wetlands and then to ground and surface water is a very real possibility. The lower Black
Warrior is a treasure trove of fo ssils dating from the Cretaceous Period and a popular area for geology buffs. Like the Mulberry and Locust Forks, it is the site of significant recreational use and also subsistence fishing.

Comments and Conclusions

In January 2009, the Institute of Southern Studies compiled a list of the 100 most polluting coal plants in the United States in terms of coal combustion waste stored in surface impoundments.4 The data came from the EPA's Toxics Release Inventory (TRI) for 2006, the most recent year available. Gorgas Steam Plant ranked number 7 on the list, with 2,888,290 pounds of coal combustion waste released to surface impoundments in 2006. Miller Steam Plant ranked number 15 on the list, with 2,160,349 pounds of coal c ombustion waste released to surface impoundments in 2006. Greene County Steam Plant ranked number 30 on the list, with 1,343,973 pounds of coal combustion waste released to surface impoundments in 2006.

We are understandably concerned about the presence and proximity of these huge surface impoundments to the Black Warrior River and its tributaries. A breach at Miller or Gorgas would
release a tidal wave of CCRs and contaminated water that would inundate and devastate wetlands, streams and rivers for years to come, harming habitat, aquatic life, water quality, and all the recreational uses of the river. While a slightly less dramatic threat because of its flatter topography, the Greene County Ash Dam would contaminate the area’s streams and sensitive
wetlan ds with similar devastation. The very size of the three Alabama impoundments suggests that such any such breach or spill could dwarf the size of the catastrophic TVA Kingston
release.5 While these three surface impoundments of CCRs present a clear and imm ediate threat to the Black Warrior, that threat is now exacerbated by the installation of scrubbers at two of the three steam plants. Currently, Miller Steam Plant has three scrubbers on its four smokestacks and by early 2011 will have scrubbers on all sta cks. While scrubbers have been partially installed at Gorgas, Alabama Power continues to study a different solution for the older parts of that facility148

as well as for Greene County Steam Plant. While helping to reduce air pollution, the use of the
scrubbe rs means the capture of even more toxic pollutants in CCRs for disposal in surface impoundments. To cite EPA’s Mercury Roadmap, we believe one environmental problem (air pollution) is merely being traded for another (increased capture of CCRs that are stor ed in surface impoundments for “treatment” and then discharged to local waterways).6 You might expect that, with the increased pollutant loads in the coal slurry as a result of the scrubbers, the relevant state NPDES permits are being modified to include e ver more stringent monitoring requirements and discharge limitations. They are not. In fact, ADEM monitors or limits very few pollutants known to be constituents of coal ash by the terms of the NPDES permits it has written for the three steam plants in the watershed.

A review of the near identical permits for the three facilities demonstrates a disturbing lack of requirements to protect the public’s health. For the wastewater discharge from these three coal ash ponds, the only parameters subject to permit limits are pH, oil and grease and total suspended solids. The three facilities are also required to conduct toxicity testing by the permit terms. Additionally, Miller Steam Plant has a permit limit for zinc. Those are the only limits imposed by the permit s, even though coal ash is known to contain heavy metals and other toxic pollutants. Without adequate monitoring, testing and discharge limitations for the wastewater discharges that occur daily from these plants in large volumes, the public’s health, wate r quality, and wildlife are not being adequately protected. Moreover, local residents whose health may be affected do not have sufficient information available to them in the permit regulatory files to determine whether the ash ponds may pose a risk to the ir health.

We believe the poor regulation of coal ash impoundments in Alabama offers a textbook case of why EPA must regulate CCRs as hazardous waste under Subtitle C of RCRA. Without the stronger implementation and enforcement requirements of Subtitle C , public health and environmental protection in our state will continue to suffer, just as it does now.7 Currently, we are at the mercy of whatever Alabama Power chooses to do with their aging, unlined and largely unregulated impoundments. Moreover, our st ate agency ADEM does not write NPDES permits that protect the public’s health. Given the very real risks associated with CCRs, that is unacceptable. EPA must promulgate stronger regulations that set out clear enforceable measures that protect the public’s health and the environment.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units XI of the preamble for a discussion of damage cases. The commenter is also referred to the preamble to this rule for a compre hensive discussion of the technical requirements that are being promulgated for CCR landfills and surface impoundments.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08261

- 7 

### Organization 1 

### : Black Warrior Riverkeeper, Inc. 

### Commenter 1 : Eva Dillard Commenter Type: Ad vocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:149



### Comment Excerpt Text: Alabama has a long and troubled history with the coal industry, which has regarded human and environmental injury as a natural and unavoidable cost of doing business rather than a conscious choice. We have the unfortunate distinction of being the last state to end the use of convict mine labor, where the sacrifice of the poorest and least powerful among us was regarded as merely
i nevitable and necessary. The Bevill Amendment, which up until now has shielded CCRs from appropriate regulation under RCRA, bears the name of former Alabama Rep. Tom Bevill, who championed the amendment as a favor to the state’s coal industry. Even today, our state regulatory agency ADEM is simply not up to the task of ensuring that the public interest (rather than the interests of coal companies and power producers) is paramount. The unfortunate legacy of coal continues in other ways in Alabama today, as t he citizens of Perry County are burdened with the disposal of toxic CCRs from the TVA Kingston spill. EPA acknowledges that it is too
often the low

- income and minority populations, like the citizens of Uniontown in Perry County who disproportionately shoul der the burden of coal

- fired power plants and toxic ash impoundments. The only way to begin to shift for that balance is for EPA to effectively regulate
CCRs under Subtitle C.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste manage ment plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08690

- 3 

### Organization 1 

### : Commenter 1 : Greg A. VanDerwerker Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 6.1.3 

### Comment Excerpt Text: I live in South Carolina where 12 coal fired electric generation stations produce 2.1 million tons of coal ash annually. The residual fly ash is placed in 22 ash ponds at 9 coal plants and at least 5
landfills. All twelve South Caroli na coal plants are sited on rivers and lakes that provide drinking water to numerous communities. Coal ash contamination is already poisoning drinking water yet there are no federally enforceable regulations specific to coal ash and state regulation is min imal and ineffective. The Environmental Protection Agency's 2007 risk assessment found 6 of these ponds and landfills are unlined, one is clay lined and 6 sites have no leachate system.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.150

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08787

- 34 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Stephen A. Cobb (Al) Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: In essence, EPA should continue to build upon existing State programs through use of the Subtitle D app roach. The Subtitle D approach for solid waste management has existed since 1979 without significant programmatic problems being identified by EPA. State programs meet or exceed the 40 CFR part 257 national standards for solid waste disposal facilities. In many respects, many State programs already meet or exceed much of the EPA proposed CCR national
standards.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Age ncy’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgatin g in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08787

- 36 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Stephen A. Cobb (Al) Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comm ent Excerpt Text: ASTSWMO urges EPA to work with State programs regarding implementation of Subtitle D
CCR minimum standards.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for151

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

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08849

- 2 

### Organization 1 

### : Association of Electric Companies of Texas (AECT) 

### Commenter 1 : John W. Fainter Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The Texas Commission on Environmental Quality ("TCEQ") oversees the design, construction, monitoring, reporting and final closure of all CCR disposal facilities. TCEQ's state regulatory program ensures the disposal and reuse of CCRs are conducted In a mann er that IS protective of
human health and the environment

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D r ule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is
als o referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to
comments th at pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspect s of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the ad equacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08852

- 4 

### Organization 1 

### : Western Organization of Resource Councils (WORC) 

### Commenter 1 : Patrick Sweeney Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:152



### Comment Excerpt Text: During the 1970s our members were among the affected citizens who fought and won passage of the Surface Mining Control and Reclamation Act. It was clear at that time that a state

- by

- state regulation of coal mining was not going to garner adequate protection for land and water resources in the area. Regulation of coal waste has the same problems.

Response: The Agency ack nowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08852

- 6 

### Organization 1 

### : Western Organization of Resource Councils (WORC) 

### Commenter 1 : Patrick Sweeney Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.2 

### Comment Excerpt Text: State regulations, in more cases than not, have not been adequate to protect citizens from the dangers of coal ash and a lack of monitoring data at other disposa l sites makes it nearly impossible to believe that additional sites are not polluting.

For example, North Dakota’s regulation under solid industrial waste has not been sufficient to protect its citizens’ health or the environment. The state has been expo sed to two cases of proven contamination cases, according to your own agency, at the Neal Plant and Coal Creek Station, along with two

— LeLand Olds and Antelope Valley

— from the reports by EIP et al. additionally; the state did not take any corrective ac tion in either of the cases according to the EIP report.

During the regulatory process in 2000, the state of North Dakota told then Administrator Browner, “The State’s regulatory process meets all the requirements of an effective program and yet does not bridle the industry with unnecessary paper work and regulation.” Proven pollution at four of the seven coal fired power plant sites in the state hardly qualifies as an “effective” program. While North Dakota regulations seemingly have all of the proper re quirements in place, contamination still has occurred.

According to the same EIP report, the Big Stone Power plant in South Dakota is also polluting the groundwater near the plant: 21 of 25 monitoring wells report exceedences of multiple pollutants in tw o aquifers. South Dakota published a defense of the coal industry on their website, after receiving and providing information to requests from the Environmental Integrity Project. This is just a further example of our state governments acting more as an ag ent for the coal industry instead of in the best interest of the health of citizens and the environment within
the state.

The only coal

- fired power plant in Oregon, Portland Gas and Electric’s Boardman Generating Facility, has shown to contaminate local groundwater according, to an EIP report. Much like in153

North Dakota, Oregon’s regulations on waste have proper monitoring and safeguards in place, yet, due to grandfathering, the regulations are not applied to the plant.

Montana is the final state in the WORC region with a demonstrated case of contamination. Currently, the regulation of coal ash in Montana is confusing at best. Most states regulate coal ash as solid or industrial solid waste, and, ostensibly, so does Montana. However, the state specificall y exempts electrical generation from solid waste disposal requirements (75

- 10

- 214 MCA), leaving virtually no one in state government with a clear understanding of which regulations apply to coal ash.

A coal fired power plant in Billings, Montana has been discharging from its bottom ash handling system directly into the Yellowstone River under a water discharge permit from the Montana Department of Water Quality, which is the only permit we can find related to coal ash for the plant. This water has a mile and a half “mixing” zone that ends just before the water intake for a community in Billings. The bulk of the bottom ash is then used as mine fill.

Residents in and near Colstrip, Montana have seen exactly the problems that occur when citizens
are left to defend their right to a clean environment. In 2003 and again in 2007, lawsuits were filed based on ash ponds that are leaching pollutants into groundwater near the Colstrip Generating Facility, the second largest coal

- fired power plant west of the Mississ ippi. One of these suits was settled, in 2008, for $25 million dollars.

One of the ponds at Colstrip is 300 acres in size and has been shown to contaminate groundwater in a 3⁄4 mile radius from the pond, prompting PPL Montana, the operator of the plant, to turn the monitoring wells into pump back wells, not only damaging water quality but also violating water rights in an area where every drop of water is precious.

The cumulative effects of coal near Colstrip have had drastic impacts not only on human hea lth,
but also the economic livelihood of ranchers in the area. Area ranchers have had to fence off a reservoir and windmill to prevent cattle from drinking the water because the toxic level for
sulfates was 16 times what veterinarians recommend for cattle. The lower population density in the West should not warrant less protection than heavily populated cities, where a larger amount of citizens would be affected and could more effectively require protections to be made at the
state level.

Despite having n o cases of known contamination, the state of Wyoming’s regulation of coal ash is almost certainly inadequate. The State of Wyoming provides sweeping exemptions for coal ash disposal units. According to the Wyoming Industrial Landfill Regulations, coal comb ustion waste landfills over one acre in size are exempt from "engineered containment system" requirements, including liners and caps, groundwater monitoring requirements, and monthly cover requirements. See Chapter 3, Sections 4(j)(iv)), 6(b)(1)(A)(VI)), a nd 5(q)(1). According to Wyoming regulations, these unlined, unmonitored CCW landfills can be as large as 2.5 million cubic yards, equivalent to a capacity of approximately 2.5 million tons of ash.

Response: The Agency acknowledges and appreciates the co mment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for154

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the pream ble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans. Finally, the commenter is referred to Unit XI of the preamble for a discussion of damage cases.

B ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to tha t issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requiremen ts, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08854

- 3 

### Organization 1 

### : Environmental Council of the States (ECOS) 

### Commenter 1 : R. Steven Brown Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The ECOS resolution cites EPA's repeated assessments in 1988, 1993, 1999, 2000, and 2005 that CCR disposal does not warrant regulation as hazardous wastes under RCRA. Moreover, ECOS agrees with EPA's finding in a 2005 study that "the regulatory infrastruct ure is generally in place at the state level to ensure adequate management of these wastes."

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rational e for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule . Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08854

- 6 

### Organization 1 

### : Enviro nmental Council of the States (ECOS) 

### Commenter 1 : R. Steven Brown Commenter Type: State Government Classification: Substantive Comment Category:155

Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 7.4.1 4.1.1 

### Comment Excerpt Text:
Resolution Number 08

- 14 Approved September 22, 2008 Branson, Missouri Revised March 23, 2010 Sausalito, California As certified by R. Steven Brown Executive Director

THE REGULATION OF COAL COMBUSTION PRODUCTS

WHEREAS, The 1980 Bevill Amendment to the Resource Conservation and Recovery Act (RCRA) requires the U.S. Environmental Protection Agency (U.S. EPA) to "conduct a detailed and comprehensive study and submit a report" to U.S. Congress on the "adverse effects on human health and the environment, if any, of the disposal and utilization" of fly ash, bottom ash, slag, flue gas emission control wastes, and other byproducts from the combustion of coal and other fossil fuels and "to consider actions of state and other federal agencies with a view to
avoid ing duplication of effort;" and

WHEREAS, U.S. EPA conducted the comprehensive study required by the Bevill Amendment and reported its findings to U.S. Congress on March 8, 1988 and on March 31, 1999, and in both Reports that recommended that coal combust ion wastes (CCW) not be regulated as hazardous waste under RCRA Subtitle C; and

WHEREAS, on August 9, 1993, U.S. EPA published a regulatory determination that regulation of the four large volume coal combustion wastes (fly ash, bottom ash, boiler slag, a nd flue gas emission control waste) as hazardous waste under RCRA Subtitle C is "unwarranted;" and

WHEREAS, on May 22, 2000, U.S. EPA published a final regulatory determination that fossil fuel combustion wastes, including coal combustion wastes, "do not warrant regulation [as hazardous waste] under Subtitle C of RCRA," and that "the regulatory infrastructure is generally in place at the state level to ensure adequate management of these wastes;" and

WHEREAS, U.S. EPA is under no statutory obligation to promulgate federal regulations applicable to CCW disposal following the regulatory determination that hazardous waste regulation of CCW disposal is not warranted, and throughout the entire Bevill regulatory process, CCW disposal has remained a state regul atory responsibility and the states have developed and implemented robust regulatory programs tailored to the wide

- ranging circumstances of CCW management throughout the country; and

WHEREAS, in 2005, U.S. EPA and the U.S. Department of Energy published a study of CCW disposal facilities constructed or expanded since 1994 and evolving state regulatory programs that found: state CCW regulatory requirements have become more stringent in recent years, the vast majority of new and expanded CCW disposal facili ties have state

- of

- the

- art environmental controls, and deviations from state regulatory requirements were being granted only on the basis of sound technical criteria; and

WHEREAS, the states have demonstrated a continuing commitment to ensure proper156

mana gement of CCWs and several states have announced proposals for revising and upgrading their state CCW regulatory programs.

NOW, THEREFORE BE IT RESOLVED THAT THE ENVIRONMENTAL COUNCIL OF
THE STATES:

Agrees with U.S. EPA's repeated assessments in 1988, 1993, 1999, 2000, and 2005 that CCW disposal does not warrant regulation as hazardous wastes under RCRA Subtitle C;

Agrees with U.S. EPA's finding in the 2005 study previously cited that "the regulatory infrastructure is generally in place at the state l evel to ensure adequate management of these wastes" and believes that states should continue to be the principal regulatory authority for regulating CCW as they are best suited to develop and implement CCW regulatory programs tailored to specific climate a nd geological conditions designed to protect human health and the environment;

Supports safe, beneficial reuse of CCW, including for geotechnical and civil engineering

purposes;

Believes that the adoption and implementation of a federal CCW regulatory program would create an additional level of oversight that is not warranted, duplicate existing state regulatory programs, and require additional resources to revise or amend existing state programs to conform to new federal regulatory programs and to seek U.S. EPA program approval;

Believes that if U.S. EPA promulgates a federal regulatory program for state CCW waste management programs, the regulations must be developed under RCRA Subtitle D rather than RCRA Subtitle C;

Believes that designating CCW a hazardous waste under RCRA Subtitle C could create stigma and liability concerns that could impact the beneficial use of CCW; and

Therefore calls upon U.S. EPA to conclude that additional federal CCW regulations would be duplicative of most state progra ms, are unnecessary, and should not be adopted, but if adopted must be developed under RCRA Subtitle D rather than RCRA Subtitle C, and in addition, urges U.S. EPA to make a timely decision, and calls upon U.S. EPA to begin a collaborative dialogue
with th e states to develop and promote a national framework for beneficial use of CCW including use principles and guidelines, and to accelerate the development of markets for this
material.

Response: The Agency acknowledges and appreciates the comment. The c ommenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a pre sentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid was te management plans.157

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases . EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08857

- 15 

### Organization 1 

### : Department of Electric, City of Hamilton, Ohio 

### Commenter 1 : Charles Young Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comm ent Excerpt Text: Hamilton believes that it is more appropriate for the states to continue to have primacy for CCR regulation under existing and effective state laws.

Response: The Agency acknowledges and appreciates the comment. The commenter is
refer red to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and dis cussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08975

- 3 

### Organization 1 

### : Grand River Dam Authority 

### Commenter 1 : Charles J. Barney Commenter Type: Beneficial User Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other S ections: 10.5.2.3 

### Comment Excerpt Text: Lastly, the State of Oklahoma Department of Environmental Quality has expressed their view to EPA that coal ash is adequately regulated in Oklahoma, and should not be designated as a
hazardous waste. Their assessmen t is accurate and should be weighed heavily by EPA.158

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09237

- 4 

### Organization 1 

### : Ohio Coal Association 

### Commenter 1 : Michael T.W. Carey Commenter Type: Trade Association Classification: Substanti ve Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 11.2.5 

### Comment Excerpt Text:
Current State

- Led Regulations are Effective.

EPA has failed to consider the threshold question of whether or not CCR should be regulated under a federal statute. As noted in the proposed CCR Rule, EPA is principally seeking comments only on three specific issues: (I) existing harms associated with th e mismanagement of CCR; (2) the risks associated with mismanagement of CCR; and (3) the adequacy of State programs. 75 Fed. Reg. 35133. It is clear from the solicitation of comments that the agency has already concluded further regulation is needed. This t hreshold issue of whether or not a federal regulatory scheme is necessary or warranted needs more analysis, particularly since, as mentioned previously, it is a federal agency's CCR management failure that is being used as the "emergency" driving this new regulatory approach.

Ohio Coal contends that there is no need for EPA to engage in any federal regulation of CCR under RCRA. Instead, CCR should continue to be regulated by the states, and the states should be afforded continued primacy with the flexibil ity to address CCR issues as determined appropriate by the respective states. Existing regulations and standards, promulgated and enforced by states, appropriately ensure the safety and health. As EPA notes, 97% of landfills
constructed between 1994 and 20 04 were built with liners, and 98% were constructed with groundwater monitoring systems already in place. 75 Fed. Reg. 35128, 35151. Thus, existing landfills, permitted by the states, have been designed appropriately with liners and groundwater monitoring. While EPA has made a clear example of the 2008 TVA accident, EPA, itself, acknowledges the rarity of such accidents. Over decades, EPA has identified only 27 cases of proven damage resulting from CCR disposal and/or mismanagement, several of which are

cur rently being contested. 75 Fed Reg. 35128,35133, 35142

- 35143. EPA has not developed a legitimate factual basis to justify stripping effective and appropriate state regulation of CCR in
favor of a "one

- size fits all" approach dictated by the agency.

Respons e: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for159

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded t o significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments rel ating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to s upport any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09265

- 10 

### Organization 1 

### : CPS Energy 

### Commenter 1 : Michael M. Malone Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: CPS Energy and Texas has a successful history of safely reusing CCR. The EPA itself has identified Texas' outstanding success on its own website. Also, there are no known CCR
containment failures or da mages in the state of Texas. CPS Energy believes that a nationwide rule is not necessary. We believe that Texas will be unnecessarily burdened due to the failure of impoundments in a few states. CPS Energy believes that a state

- by

- state review should be

pe rformed prior to enacting a nationwide rule.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D r egulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts160

involved in the damage cases. EPA has not, however, responded t o many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09281

- 4 

### Organiza tion 1 

### : Exelon Power 

### Commenter 1 : Victoria K. Will Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Requiring existing impoundments that remain in use t o meet modern liner and groundwater monitoring requirements will address some of the key risks to groundwater associated with older
units.

Furthermore, national standards under Subtitle D will afford equivalent protection to the public
and the environmen t, regardless of where CCR impoundments or landfills are situated. In turn, a consistent national standard for CCR disposal units will inform the development of other national environmental standards, which, as a practical matter, involve CCR treatment and disposal. For example, EPA presently is revisiting the national Steam Electric Power Generating Effluent Guidelines. Wastewater associated with CCR is a component of the waste streams to be addressed by these guidelines. Beginning with a consistent regula tory framework for water and waste will allow for the integration of processes across the fleet and maximize benefits and minimize costs as stations plan their capital expenditures for compliance.

While some states, such as Pennsylvania, have been very p roactive in regulating both the beneficial use and disposal of CCR, other states do not apply any regulatory program to CCR disposal units. See 75 Fed. Reg. 35151. Simply stated, some electric utility operators have been complying with more rigorous CCR de sign and control standards, whereas others have been allowed to dispose of CCRs in the absence of regulatory structure. As a result, some communities and members of the public invariably enjoy greater levels of protection against potential threats to groun dwater quality. Uniform requirements applicable to all CCR disposal units regardless of state lines will help equitably address discrepancies in both protections and compliances costs under state regulatory programs that have existed for decades.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09282

- 3 

### Organization 1 

### : North Carolina Department of Environment and Natural Resources 

### Commenter 1 : Dexter R. Matthews Commenter Type: State Government Classifica tion: Substantive Comment Category:161

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Three divisions in the North Carolina Department of Environment and Natural Resources (DENR) have a role in the oversight of coal combustion residuals (CCR) management (Division of Land Resources (DLR), Division of Waste Management (DWM) and Division of Wa ter Quality (DWQ). As background for these comments and in response to EPA requests for information, current authority for each of the existing state programs is described below.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 10 

### Organization 1 

### : Virginia Department of Environmental Quality 

### Commenter 1 : Jeffery A. Steers Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Virginia DEQ's Regulatory Requirements:

In Virginia, CCRs are regulated as a solid waste under our state authorities and this material is
treated in a likewise manner as other industrial non

- hazardous solid wastes. Virginia's regulat ions require an extensive permitting process for facilities that treat, store, or dispose of solid wastes. Beneficial uses also require review and approval prior to implementation.

Virginia's regulations require the proper management of solid wastes, such as CCRs, in order to prevent adverse impacts on human health or the environment. These regulations provide requirements for CCR management as a solid waste, including appropriate criteria for disposal units and provide allowances for beneficial reuse in a manner that is protective of human health and the environment. Virginia, like many states, has a strong and established solid waste management program. Virginia's statutory law under the Virginia Waste Management Act includes enforcement authorities, as w as demonstrated to EPA when we obtained approval for our municipal solid waste (MSW) program (a RCRA Subtitle D program). This approach has been successful for regulation of MSW and is significant proof that the states have the ability to regulate solid wa ste within their jurisdiction.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is
also referred to Unit IX of th e preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.162



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 29 

### Organization 1 

### : Virginia Department of Environmental Quality 

### Commenter 1 : Jeffery A. Steers Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.3 

### Comment Excerpt Text: Virginia DEQ has a very strong and established solid waste regulatory progr am, as our EPA approved MSW permit program attests to, and has successfully regulated the management of coal ash as industrial waste under our laws and regulations. Coal ash is a solid waste and, as such, is treated in a likewise manner as other industrial solid wastes. The Virginia Solid Waste Management Regulations provide requirements for CCR management, including appropriate criteria for disposal units, and allow for its beneficial reuse in a manner that is protective of
human health and the environment . In 2009, Virginia DEQ began working with stakeholders to revise Virginia's Coal Combustion Byproduct Regulations. Potential revisions to these regulations include additional protections that would be more protective of human health and the
environment. T he regulatory revisions being considered include: o Inclusion of a maximum amount of fill material that could be beneficially used at a site under the Coal Combustion Byproduct Regulations. o Development of a risk based approach to regulating CCR sites, ba sed on size, with different requirements concerning groundwater monitoring and review of the information submitted. o Revisions to setback requirements to be more consistent with the siting requirements of
landfills. o Inclusion of a prohibition of creatin g ponds in the CCR fill areas. o Addition of a requirement for a hydrogeologic and geotechnical report to be prepared for the site which provides more documentation concerning the subsurface conditions, including the seasonally high water table.
o Addition of operational requirements to address dust control requirements, compaction requirements, the maximum size of the fill area that can be open at one time, the placement of soil after 60 days of not receiving CCR and cleanout requirements for sedimentation ponds. o Additional closure requirements were discussed. Capping of the site will occur using one of three options specified in the regulations. There are limits on disturbing the cap and final cover
must be maintained on the site.
o Groundwater monitorin g would be required for larger sites. o Public notification/participation would be required, through posting of a sign on the site, similar to a zoning sign, advising the public of the activity.

The changes to the regulations listed above have been discu ssed with stakeholders; however, DEQ has not moved forward with developing the proposed regulation for public comment. Due to EPA's impending regulatory action on CCRs, DEQ put on hold developing a proposal in
December 2009 since EPA was scheduled to relea se a CCR proposal in December 2009. At this time, DEQ has not reinitiated this rulemaking process but once initiated DEQ believes that163

changes concerning the issues listed above will further strengthen Virginia's Coal Combustion By

- Product Regulations conc erning the use of unencapsulated CCRs as fill material.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rul e for the disposal of CCR in landfills and surface impoundments as well as the supporting response to cmment documents. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulga ting in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09286

- 1 

### Organization 1 

### : Indiana Coal Council, Inc. (ICC) 

### Commenter 1 : J. Nathan Noland Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.3 

### Comment Excerpt Text:
The IC C is a member of the National Mining Association and to avoid duplicity of comments on several aspects of the proposal the comments of NMA are hereby incorporated into the comments of the ICC. Indiana's Department of Environmental Management (IDEM) has

reg ulated CCR under Subtitle D for many years without any adverse effects to the environment. In partnership with IDEM, Indiana's Department of Environmental Management (IDEM) has regulated CCR under Subtitle D for many years without any adverse effects to th e environment. In partnership with IDEM, Indiana's Department of Natural Resources (DNR) has regulated minefill placement of CCR at Indiana surface coal mines since the early 1980's. IDEM's beneficial use of CCR regulations has been successful and has avoi ded unnecessary costly disposal of CCR at landfills in Indiana.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtit le D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 41 

### Organization 1 

### : Arizona Department of Environmental Q uality (ADEQ) 

### Commenter 1 : Benjamin H. Grumbles Commenter Type: State Government Classification: Substantive164

Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.4.8.4 4.2.2 4.7 

### Comment Excerpt Text: Pg. 35252, Section 257.100 Closure criteria: Arizona requests that alternative final cover designs be approved by the Director of an approved state. Arizona’s Aquifer Protection Permit Program allows for the final cover design to be developed using the a Best Available Demonstrated Control Technology criteria and process and the design must be approved in the facility’s permit. Arizona requests that paragraphs (e)(1) and (e)(2) of section (e) be deleted and section (e) be modified as follows (modification in italics):

(e) The owner or operator of the CCR landfill or surface impoundment may select an alternative final cover design, provided the alternative cover design is approved by the Director of an approved state and certified by an independent registered professional engineer.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units VI of the preamble for a discussion of the closure requirements of the rule. The commenter is also referred to Unit IV for a discussion of the Agency’s dec ision to require a qualified professional engineer to certify demonstration provide by the owner or operator of
the CCR unit.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 44 

### Organization 1 

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

### Commenter 1 : Benjamin H. Grumbles Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.4.7.9.1 4.4.7.8.1 

### Comment Excerpt Text: Pg. 35253, Appendices III and IV to Part 257: The p arameters listed in this table are proposed for all CCR facilities. Under Arizona’s Aquifer Protection Permit program, the ADEQ Director has discretion to establish parameters for groundwater monitoring on a facility

- specific basis. This approach provides the agency with flexibility to establish parameters in each permit. ADEQ suggests that a more flexible approach with facility

- specific monitoring be proposed rather than prescriptive monitoring for all facilities.

Response: The Agency acknowledges and ap preciates the comment. The commenter is referred to Unit VI for a discussion of the groundwater requirements the Agency is promulgating in the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 7 

### Organization 1 

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

### Commenter 1 : Benjamin H. Grumbles Commenter Type: State Government165

Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 11.2.5 

### Comment Excerpt Text: Based on the successful record of CCR manageme nt in Arizona under existing water quality, air quality and dam safety statutory and regulatory authority, there is no known risk posed under current CCR management requirements in Arizona.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09350

- 18 

### Organization 1 

### : Texas Industries, Inc. (TXI) Operations, LP 

### Commenter 1 : David Perkins Commenter Type: Beneficial User Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 8.1 4.1.1 

### Comment Excerpt Text: 4. Imposition of Subtitle D management practices will appropriately address land management of
CCRs

Management of land disposal units for fly ash could be achieved through a RCRA subtitle D program. Most states have already developed programs that are successful in regulating land disposal of fly ash. In fact, this condition is supported by EPA's determination in May of 2000 that state regulatory programs were adequate to ensure proper management and dispo sal of fly ash. Further, EPA and the U.S. Department of Energy in 2005 determined that such state regulatory programs had become even more stringent. EPA can further strengthen these programs by providing a uniform requirement under subtitle D of RCRA for land management of fly ash, rather than imposing unnecessary subtitle C requirements. There is a good foundation for appropriate management of landfill units with current state programs that can be strengthened,
and this is the course that EPA should follo w to maximize sustainability and continue to be protective of human health and the environment.

The NPRM's preamble makes clear that the catalyst for this rulemaking was the failure of the impoundment at Kingston, Tennessee, 75 Fed. Reg. at 35132, as wel l as the other damage cases involving CCRs that the agency has analyzed. A review of investigative findings for the Kingston, TN failure and also the other damage cases EPA has analyzed makes abundantly clear that, in every instance, the cause for the leac hing or spill can be attributed to an inadequacy in the containment system.

Based on the information that is provided in EPA's damage case assessment, what becomes clear is that the facilities involved in those cases lacked an appropriate liner and/or ha d been improperly designed and were also designed a number of years ago (opening between 1948 and 1983). Further, EPA's damage case analysis also has recognized that the majority of the facilities166

had been built prior to landfill regulations and that State requirements for disposal of non

hazardous industrial waste were developed subsequently with different requirements and timing. Thus, the only conclusion that can be reached from EPA's own damage case analysis is that, if there is a need for federal regul ations governing CCR disposals to be adopted, EPA's focus, and the outcome of this rulemaking, should be on the technical and engineering controls that are needed to ensure the safe disposal of CCRs generated by the utilities.

In this regard, one signifi cant concession that EPA has made throughout the preamble is that the differences in the technical and engineering control requirements that the agency has proposed under its subtitle C and D options are relatively small: "The Agency would implement simila r technical controls under RCRA subtitle C or D." 75 Fed. Reg. at 35133; "Further, the technical unit design and groundwater monitoring requirements that will effectively protect human health and the environment under either option are quite similar." 75 F ed. Reg. at 35159.

Whatever differences that might exist between EPA's subtitle C and D proposals, they are not so significant that they demonstrate the need for EPA to choose subtitle C over D. Indeed, it has to be assumed that EPA proposed its subtitle D requirements with an intention and understanding that, if adopted by the final rule, they would be sufficient to protect the public.

While proponents of Option 1's adoption may argue that unless Option 1 is adopted the public will not be protected, ne ither they nor EPA has any basis for proving that. In fact, according to the NPRM, in January 2007, environmental and citizen groups petitioned EPA to regulate CCRs under subtitle D, 75 Fed. Reg. at 35143, demonstrating that the adoption of Option 1 is not necessary to protect the public.

Under the argument that the supporters of Option 1 are now presenting, however, it is implied that all State environmental regulations and enforcement will always be insufficient. EPA knows that this is obviously not only factually incorrect, but also contrary to the regulatory structure designed by Congress. In fact, Option 1 supporters' claim that federal enforcement authority is needed for CCRs conflicts with a long history of the States enforcing hazardous waste requir ements, not EPA, without problems. Unless EPA can prove that the States will not implement and enforce EPA's subtitle D requirements if adopted by this rulemaking, it would be unreasonable and arbitrary for EPA to conclude that subtitle D could not, and wo uld not, protect the public if adopted and, therefore, that EPA must adopt its proposed Option 1

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s ration ale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this ru le. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09425

- 1 

### Organization 1 

### : Alstom Power, Inc. 

### Commenter 1 : Robert G. Hilton167

Commenter Type: Other Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.4 

### Comment Excerpt Text: Alstom Power, Inc. is the largest supplie r in the United States of combustion boilers, combustion equipment and environmental equipment for utilities and industrials that choose to burn coal. We have nearly 100 years of experience in the equipment that produces coal combustion byproducts
and unde rstand the nature of these products. It is Alstom's opinion that suitable specification requirements and regulation of the byproducts are appropriate to insure all States practice the same standards for disposal of unsold byproducts in a proper engineered manner to maintain safety and protect the environment. There are literally hundreds of examples of properly disposed byproducts in accordance with good engineering practice consistent with the requirements typical of non

- hazardous land filling. The imposit ion of Sub

- title D prime requirements in EPA's proposed rule are and have been demonstrated to be completely adequate.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to in corporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09510

- 3 

### Organization 1 

### : Commenter 1 : Dr. Patricia Matteson Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Toxic elements in coal ash put our drinking water supplies and communities at risk, yet most states allow this waste to be disposed without adequate safeguards. Instead, we need health

protective regulations that the EPA can enforce .

Response: The Agen cy acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09536

- 15 

### Organization 1 

### : Tennessee Valley Authority 

### Commenter 1 : John W. Myers Commenter Type: Electric Utility Company Classification: Substantive168

Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: State Regulatory Control

EPA seeks comment on detailed information on current and past individual state regulatory and

non

- regulatory approaches taken to ensure the safe management of CC Rs, not only under State waste authorities, but under other authorities as well, including the implementation of those approaches. 75 FR 35224

EPA documented in the final 2000 Regulatory Determination the growing effectiveness of state regulatory program s for CCRs, concluding that ''with the exception of relatively few states, the regulatory infrastructure is generally in place at the state level to ensure adequate management of these wastes." 65 Fed. Reg. at 32217. Additionally, EPA acknowledged in the c urrent CCR proposal that CCRs are already regulated under state solid waste management programs. 75 Fed. Reg. at 35142. Indeed, EPA discusses in great detail the data suggesting that state regulatory controls for CCRs have generally improved, though this i s one of the key areas on which EPA
seeks comment. Id. at 35151

- 52.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09618

- 2 

### Organization 1 

### : Waste Permits Division, Louisiana Department of Environmental Quality (LDEQ) 

### Commenter 1 : Don Caffery Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Since 1983, LDEQ has had success in regulating CCRs unde r our state solid waste regulatory program. All CCR management units in Louisiana are already regulated and subject to groundwater monitoring requirements under this program. All existing Louisiana CCR impoundments were built with engineered, compacted cla y liners. We believe that our requirements are protective of human health and the environment of our state.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09631

- 3 

### Organization 1 

### : Porter Wright Morris & Arthur LLP 

### Commenter 1 : Christopher R. Schaff Commenter Type: Law Firm Classification: Substantive169

Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA also gives little consideration to the fact that many state s, such as Ohio, already regulate the disposal of CCRs in a comprehensive fashion, and have done so for several years. The Ohio Environmental Protection Agency promulgated comprehensive rules for the disposal of CCRs in Ohio. See Ohio Administrative Code ( OAC) Rule §§3745

- 30

- 01 et seq. These regulatory requirements include requirements for liners at CCR disposal facilities. See OAC §3745

- 30

- 07.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulati on. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09633

- 8 

### Organization 1 

### : Waterkeeper Alliance 

### Commenter 1 : Scott Edwards Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.2.4 

### Comment Excerpt Text: C. States Continue To Do An Inadequate Job Of Regulating Coal Ash

One of the major flaws of the Subtitle D option is that states would not be required to adopt the minimum national criteria promulgated by EPA for the safe management of coal ash. [Footnot e 57: EPA Proposed Rule, p. 171] While EPA optimistically expects that states will voluntarily incorporate the criteria into their laws and regulations, the fact remains that they are under no obligation to do so. [Footnote 58: EPA Proposed Rule, p. 171] I n fact, if current state laws and practices are any indication, this expectation remains highly unlikely.170

In at least ten states that produce large amounts of coal ash, there is no law requiring monitoring of operating coal ash ponds. [Footnote 59: In Ha rm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment, Thirty

- nine New Damage Cases of Contamination from Improperly Disposed Coal Combustion Waste, Environmental Integrity Project, Earthjustice and Sierra Club August 26, 2010 Jeff Stant, Project Director, Editor and Contributing Author, p. ix, available at: http://www.environmentalintegrity.org/news_reports/documents/INHARMSWAY_FINAL3.pd (These states are: Alabama, Arizona, Georgia, Indiana, Ohio, MIssissippi, Missouri, N ew Mexico, and Tennessee).] In Texas, most coal ash disposal sites are not subject to any state regulation whatsoever. [Footnote 60: In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment, Thirty

- nine New Damage Cases of Contamination from Improperly Disposed Coal Combustion Waste, Environmental Integrity Project, Earthjustice and Sierra Club August 26, 2010 Jeff Stant, Project Director, Editor and Contributing Author, p. vi, available at: http://www.environmentalinteg rity.org/news_reports/documents/INHARMSWAY_FINAL3.pd The same goes for Alabama. [Footnote 61: “Hundreds of Coal Ash Dumps Lack Regulation,” by Shaila Dewan, The New York Times, January 6, 2009, available at: http://www.nytimes.com/2009/01/07/us/07sludge.ht ml] In Tennessee, home to five proven damage cases and the TVA’s massive spill of over 1 billion gallons of coal ash slurry, coal ash impoundments are still unregulated, and there are no standards for structural integrity, groundwater monitoring, correctiv e action, or post

- closure care. [Footnote 62: The State of Coal Ash Regulation in Tennessee, report by Southern Alliance for Clean Energy, October 26, 2010, p. 2, available at: http://www.cleanenergy.org/images/files/TN%20Regulatory%20and%20Damage%20Report 1.pd f] Nor are there any regulations that cover transportation of coal ash before its disposal. [Footnote 63: The State of Coal Ash Regulation in Tennessee, report by Southern Alliance for Clean Energy, October 26, 2010, p. 10, available at: http://www.cle anenergy.org/images/files/TN%20Regulatory%20and%20Damage%20Report1.pd f] Despite documented cases of groundwater and surface water contamination at structural fill sites, North Carolina does not require permits, liners, or groundwater monitoring for these s ites, nor does the state require regular inspections. [Footnote 64: Unlined Landfills? The Story of Coal Ash Waste in our Backyard, Sierra Club, North Carolina Chapter, April 7, 2010, p. 6, 9

- 10, available at: http://nc.sierraclub.org/work/docs/FINAL_coal_ ash_report.pdf] North Carolina has 75 of these sites across the state, with 17 concentrated in a single county. [Footnote 65: Unlined Landfills? The Story of Coal Ash Waste in our Backyard, Sierra Club, North Carolina Chapter, April 7, 2010, p. 5, availabl e at: http://nc.sierraclub.org/work/docs/FINAL_coal_ash_report.pdf] Clearly, if states were serious about regulating coal ash, they would already be doing so.

The amount of damage caused by coal ash in certain states, as well as monies paid for correctiv e action and lawsuit settlements, reveals the true cost of these states’ weak and often nonexistent regulations. In Pennsylvania, the release of water and fly ash from a power plant to the Delaware River in 2005 cost approximately $37 million to clean up. [Footnote 66: EPA Proposed Rule, p. 40] The failure of a discharge pipe at a plant in Alabama cost $9.2 million to correct a 6.1 million gallon release from an FGD pond. [Footnote 67: EPA Proposed Rule, p. 40] The residents of Gambrills, Maryland recently settled a lawsuit for $45 million with a company that had dumped 3.8 million tons of coal ash into gravel pits, and 84 wells were contaminated with171

toxic pollutants. [Footnote 68: Coal Ash: The Hidden Story, by Kristen Lombardi, Center for Public Integrity report, February 19, 2009, available at: http://www.publicintegrity.org/articles/entry/1144/?utm_source=publicintegrity&utm_medium=r elated_heds&utm_campaign=related_bottom] Similarly, owners of a plant in Colstrip, Montana paid $25 million in settlement t o residents, after coal ash ponds were discovered to have polluted entire aquifers. [Footnote 69: Coal Ash: The Hidden Story, by Kristen Lombardi, Center for Public Integrity report, February 19, 2009, available at: http://www.publicintegrity.org/articles/ entry/1144/?utm_source=publicintegrity&utm_medium=r elated_heds&utm_campaign=related_bottom] Not surprisingly, in Montana, these types of ponds are exempt from state regulation. [Footnote 70: Coal Ash: The Hidden Story, by Kristen Lombardi, Center for Publi c Integrity report, February 19, 2009, available at: http://www.publicintegrity.org/articles/entry/1144/?utm_source=publicintegrity&utm_medium=r elated_heds&utm_campaign=related_bottom]

Many of Waterkeeper Alliance’s US member programs experience problems with coal ash that has been stored or disposed of improperly, where state officials simply refuse to take corrective action, or address the harmful environmental impacts of these hazardous waste dumps. Despite obfuscation efforts by state officials regard ing coal ash regulations and effluent limit guidelines, Waterkeeper Alliance’s US member programs continue to collect data and issue reports that document the negative impacts of CCRs.

The need for regulation of coal ash ponds in North Carolina has been well documented by NC Riverkeepers. The EPA recently “identified a total of 431 units managing slurried CCRs at 162 facilities...Forty

- nine (49) of these units at 30 different locations have been assigned a high hazard potential rating, using the criteria de veloped by the National Dam Safety Program.” [Footnote 71: Environmental Protection Agency, Fact Sheet: Coal Combustion Residues (CCR)

– Surface Impoundments with High Hazard Potential Ratings, available at: http://www.epa.gov/osw/nonhaz/industrial/special /fossil/ccrs

- fs/ (last visited Aug. 19 2010). [hereinafter EPA]] The high hazard rating “indicates that a failure will probably cause loss of human life.” [Footnote 72: Id.] Of the 49 high hazard sites identified nationally, 12 of the units
are located in North Carolina. [Footnote 73: Id.]

On September 28, 2010 Cape Fear Riverkeeper Kemp Burdette investigated and documented a breach in the Progress Energy coal ash pond dam at its Sutton coal fired power plant just outside of Wilmington, NC. He found a hol e in the dam nine feet deep and twenty two feet wide caused by heavy rainfall. The breach appeared so suddenly that Progress Energy employees drove a truck into it while inspecting the dam. [Footnote 74: Deluge takes Toll on Roads, Ash Pond,
Sewers. Star N ews. Wilmington, NC September 28,2010 available at http://www.starnewsonline.com/article/20100928/ARTICLES/100929663/1177?Title=Delugetak

es

- toll

- on

- roads

- ash

- pond

- sewers], [Footnote 75: Progress Energy plugs leak at rain soaked ash pit. News and Observer. Winston Salem, NC available at http://blogs.newsobserver.com/business/progress

- energy

- plugs

- leak

- at

- rain

- soakedcoal

- ash

pit#ixzz10wuH6Nfj] As this recent example and the TVA Kingston coal ash pond failure in December 2008 indicate, coal ash ponds dams are prone to sudden failure and are not responsibly maintained.172

Over the last decade, Duke and Progress Energy tested groundwater surrounding the North Carolina coal ash ponds for contamination. Of the thirteen tested ponds all were found to have
violations of NC groundwater standards. A report by Appalachian Voices and the Upper Watauga Riverkeeper summarized the contamination:

Water sample results from ground water monitoring wells surrounding 13 coal ash ponds operated by Progress and Duke Energy were an alyzed. A total of 681 exceedences were found for arsenic, boron, cadmium, chloride, iron, lead, magnesium, pH, and total dissolved solids. The level of exceedences ranged from 1.1 to 380 times higher than the NC ground water standard. [Footnote 76: Appala chian Voices and Upper Watauga Riverkeeper, North Carolina Coal Ash Pond Groundwater Contamination Analysis, October 6, 2009, 1 available at: http://appvoices.org/resources/AV_Report_on_NC_Coal_Ash_Pond_Violation_Analysis_Oct_2 009.pdf (last visited Aug. 19 , 2010). [hereinafter Appalachian Voices]]

In addition to the data provided by the monitoring described above, the lack of additional monitoring outside the 250

- 500ft “compliance boundary” is a serious risk to public health of the
citizens of North Carol ina:

Detailed analysis of the monitoring data clearly indicates that pollutants are leaching from NC coal ash basins and contaminating groundwater. NC law does not require the power companies to clean up the toxic pollutants until it extends far beyond t he boundary of the coal ash pond and reaches an arbitrarily identified “compliance boundary”. [Footnote 77: Id. at 3.]

For instance, Duke Energy provided the State with no data beyond the “compliance boundary”, because they are not required to monitor th ere, thus they have no reported violations outside the compliance boundary and are not required to conduct any corrective action. [Footnote 78: Id. at 2.] The Appalachian Voices and the Upper Watauga Riverkeeper report analyzed the violations in conjunctio n with existing State law, concluding that “[i]n the absence of strong federal regulation classifying coal ash as a hazardous waste, NC groundwater law is not adequate to address the pollution problems that currently exist at coal ash ponds around the Stat e.” [Footnote 79: Id. at 2.]

On June 23, 2010 French Broad Riverkeeper Hartwell Carson tested water, sediment and fish from waterways below the discharge of the Progress Energy Skyland coal ash pond in Asheville, NC. The test results clearly demonstrate that the Asheville plant is having a direct impact on the French Broad River and its aquatic life. Arsenic in water samples was over 3.5 times the water quality standard for fresh water aquatic life and approximately 18 times higher than the water quality standard for drinking water and human health. Selenium levels in the water were approximately 14 times the state limit for freshwater aquatic life. Fish tissue test results indicate
that selenium is bio

- accumulating in shiners at levels as high as 7.1 part s per million. (See attached pace analytical test result data). Historical background levels of selenium in fish in the French Broad River are generally less than 0.5 ppm, which means that the shiners in the creek below the Skyland coal ash pond have selen ium levels that are 14.2 times higher than background (see attached background fish tissue levels from the French Broad River in NC). As Dr. Dennis Lemly and other researchers have noted, selenium levels in fish above 4 ppm exceed
the toxic threshold for w hich reproductive and physiological damage occurs. Therefore, this173

newly released test result data unambiguously confirms that coal ash contaminates water and aquatic life at levels that cause harm. Dust samples of coal ash were also taken from homes
locat ed next to the Progress Energy Skyland coal ash ponds. These samples reveal arsenic above EPA’s regional screening level for soil and air.

On April 29, 2010 Catawba Riverkeeper David Merryman tested surface water and sediments
near the Clean Water Act NP DES permitted outfall of Duke Energy’s Riverbend Steam Station along the Catawba River at Mountain Island Lake, the primary drinking water supply for the North Carolina cities of Charlotte, Cornelius, Davidson, Gastonia, Huntersville, Matthews, Mint Hill, Mount Holly and Pineville. Catawba Riverkeeper found arsenic concentrations of 26 parts per billion in lake surface water, near where the outfall enters Mountain Island Lake. This represented a concentration 2.6 times greater than North Carolina’s water qu ality standards for drinking water supplies and human health. A second sample taken 50 meters linearly from the first sampling location remained above the state’s water quality standard for a water supply with at a concentration of 17.6 parts per billion. Sediments tested from Mountain Island Lake near its confluence with Riverbend Steam Station’s coal ash pond effluent showed elevated concentrations of arsenic, barium, chromium, lead, mercury, selenium and PCBs with parts per billion concentrations of 12,7 00; 51,500; 13,000; 4,700; 12; 12,000 and 78.2; respectively. A composite sample of five largemouth bass, Micropterus salmoides, of similar size class from Mountain Island Lake downstream of the coal ash pond outfall resulted in parts per billion

concentra tions of 170, 970 and 70.7 for selenium, mercury and PCBs, respectively. These results indicated exceedances of state water quality standards for drinking water supplies and human health, yet the state’s Division of Water Quality has permitted these discha rges through its NPDES program for decades and is in the process of re

- issuing NPDES permits without heavy
metal concentrations limits for known coal ash constituents.

In Tennessee, our Upper Watauga Riverkeeper created a research team of aquatic toxicol ogists and ichthyologists from Appalachian State University and the Tennessee Aquarium Conservation Institute and to test the environmental impact of the TVA coal ash spill on the Emory, Clinch and Tennessee Rivers. Over the last two and a half years, the research team collected more than 1,000 water, sediment and fish samples since the spill occurred in December of 2008. Pasted below are some of the morphological impacts to fish that have been documented by the TVA coal ash spill research team:

[Please s ee attachment to view a picture of a channel catfish (Ictalurus punctatus) collected from ERM 2.2 (the spill zone) on January 8, 2009 weighed 439 grams and contained 34 grams of ash in the gut, intestines and anal cavity, which means 7.7% of the body weigh t of the catfish was ash. This is equivalent to a 150lb man eating >11 lbs of ash.

[Please see attachment to view a picture of a Largemouth bass (Micropterus salmoides) collected on January 8, 2009 from Emory River Mile 2.2(ERM 2.2)]

[Please see attach ment to view a picture of the Histological sections of catfish gills]

[Please see attachment to view a picture of a normal largemouth bass]174

[Please see attachment to view a picture of a compromised Largemouth Bass]

[Please see attachment to view a pi cture of a juvenile blue gill sunfish (Lepomis microlophus) exhibiting exopthalmus (“popeye”)collected from Tennessee River mile 567.5 January 2010, two years after the spill occurred.]

[Please see attachment to view a picture of a Normal Bluegill sunfis h and Popeye Bluegill sunfish]

[Please see attachment to view the graph titled “Percentage of fish caught with external anomalies at each site from Jan 2009 to Sept 2010]

On January 1st and May 15th, 2009 the Appalachian Voices Upper Watauga Riverkeepe r released two reports detailing the results of water, sediment and fish tissue testing. These reports are attached and incorporated by reference in their entirety (see appendix XX). On December 27, 2008, arsenic levels in the Emory River below from the TV A coal ash spill tested at close to 300 times the allowable levels in drinking water, while a sample from two miles downstream still revealed arsenic at approximately 30 times the permissible limit. Lead was present at between 2 to 21 times the legal drink ing water limits, and thallium levels tested at 3 to 4 times the allowable amounts. All water samples from the Emory River were found to contain elevated levels of arsenic, barium, cadmium, chromium, lead, mercury, nickel and thallium as a result of coal a sh. The majority of coal ash ponds in the United States are situated along rivers. When they fail, they take away a communities inalienable right to enjoy waters of the United States.

[Please see attachment to view a picture of an EPA advisory on the Emo ry River]

In Alabama, Hurricane Creekkeeper John Wathen tested surface water and drinking water wells surrounding the Perry County landfill on March 20, 2010. EPA drinking water standards and/or aquatic life water quality criteria were exceeded more than 25 times for arsenic, cadmium, copper, lead, selenium and zinc. Our Satilla Riverkeeper in Georgia is fighting a project which brings coal ash in from Florida and dumps it in a creek bottom tributary of the Satilla River. In North Carolina, where the stat e permits the dumping of coal ash directly into the Catawba River, our Catawba Riverkeeper has documented significant impacts on water quality. In that watershed, the Riverkeeper found levels of arsenic coming out of the coal ash pond in Mountain
Island La ke, a primary drinking water source, at about 3 times the safe drinking water standards. Our Hurricane Creekkeeper has thoroughly documented in photographs and with interviews the environmental and human health atrocity in Perry County, Alabama from the ir responsible
transfer of the TVA coal ash.

As demonstrated by these and other real world examples, the disorganized patchwork of state regulations that has existed up to this point has simply not been effective in protecting human
health and the environme nt from the dangers of coal ash. The residents of these states deserve a strong, comprehensive, and enforceable strategy for dealing with this massive waste management problem, a system that can only be accomplished under Subtitle C. Regulation
under Subti tle C will make sure that coal ash is safely managed from cradle

- to

- grave, and that necessary requirements such as permit issuance, liners, groundwater monitoring, run

- off175

controls, and financial assurance are put into place. [Footnote 80: EPA Proposed Rul e, p. 43] Only Subtitle C has the “teeth” required to properly address the problem of coal ash.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationa le for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rul e. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the d amage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency ha s made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09712

- 1 

### Organization 1 

### : Basin Electric Power Cooperative (BEPC) 

### Commente r 1 : Claire M. Olson Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

- Basin Electric has coal

- based electric generating facilities located in both North Dakota and Wyoming that generate coal combustion residuals (CCRs). Both of these states have regulatory programs currently in place that ensure the protection of human health and the environment without having to subject these materials to a rigorous Subtitle C hazardous waste management system.

- For example, the regulatory program in North Dakota has been in place for over 20 years. The North Dakota rules define CCRs as a special waste. Disposal of these materials require that
criteria such as locat ion standards, operation requirements, design requirements, ground water monitoring/corrective action requirements, closure/post

- closure requirements and financial assurance requirements must be met. The location standards specify that no solid waste

manag ement facility be located in any areas that could result in the impact of human health or the environment or in areas that are instable due to topography, geology, hydrology or soils. The operational requirements specify that storm water be controlled. Sto rm water permits/discharge permits are typically required. Thedisposal facility must also comply with the air quality rules. The operation plan must also address a waste acceptance plan, the handling procedures, standard inspection activities, maintenance procedures, safety procedures, record keeping, quarterly and176

annual report generation, and a closure plan. Appropriate design specifications are required and based on the waste characterization that consists of leachate analyses and mineral oxide analyses. Ground water monitoring plans typically consist of an appropriate array of up gradient and down gradient observation wells that are monitored for both water levels and water quality. Financial assurance is required to ensure that funds are available to co ver the costs of closure and post

closure care. All of the above requirements are part of the permitting process that North Dakota currently has in place. This permitting process also includes a pre

- application process and a site suitability review by an a dvisory committee that is made up of environmental professionals in state government. Additionally, county planning and zoning officials are consulted during the permitting process. Public notice is also required. The last permitting effort completed by Ba sin Electric required that five different public notices be completed andthat these notices allow for public comment including opportunities for public hearings. Clearly, the program in place in North Dakota meets all of the requirements to ensure that hum an health and the environment are protected.

- Other Western States have similar programs and protections. Weagree with and support the attached March 5, 2010 letter and comments of the Western Governors' Association to President
Obama and Administrator J ackson.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surfa ce impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discus sion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on sta te programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09728

- 7 

### Organization 1 

### : Intermountain Power Service Corporation (IPSC) 

### Commenter 1 : Jon A. Finlinson Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: 7. The Subtitle D and/or D' option can lend itself better to workable and deployable site specific177

or case specific management and disposal scenarios more p rotective of human health and the
environment.

The EPA states several times that it does not have sufficient information at the State level to determine if any effective CCR management practices are in place. A cursory review of the Docket and publicly a vailable information indicates that several States operate programs under which CCR falls. These programs appear to be effective, with no damage cases or severe impacts shown. IPSC has already spoken to the State of Utah programs, and they have proven effe ctive in managing CCR and any issues from CCR, albeit in a voluntary fashion. Utah is poised to make statutory changes where required to allow implementation of an Option D program, with the support of industry.

Information on State level programs is lac king in the docket, and the EPA is rightfully asking for details. We suggest that the EPA review and add this information prior to finalizing any option. It would be premature to discount a Subtitle D option without a full review of potential State oversig ht capabilities.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09768

- 3 

### Organization 1 

### : The Learning Community 

### Commenter 1 : Louise Gorenflo Commenter Type: Community/Religious/Social Organization Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.1 

### Comment Excerpt Text: Subtitle C is the recommended option for adequately regulating coal ash waste. In fact, Subtitle C is the only viable option because it is the only option that offer s comprehensive, federally178

enforceable, cradle

- to

- grave management of coal ash. States like Tennessee have shown that they are not proactively interested in proper regulation of toxic coal ash.

Response: The Agency acknowledges and appreciates the commen t. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09770

- 1 

### Organization 1 

### : Upper Cumberland Group of the Sierra Club, et al. 

### Commenter 1 : Mary M. Mastin and Brian Paddock Commenter Type: Advocacy Group Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.1 

### Comment Excerpt Text: We strongly urge that EPA adopt regulation of coal ash as a hazardous waste under Resource Conservation & Recovery Act (RCRA) Subtitle C. We believe that o ur state agencies and state law are inadequate to protect our citizens, environment, water quality and aquatic life and wildlife from the hazards of coal ash. We make this recommendation based on close study of Tennessee Department of Environment and Conse rvation (TDEC), Tennessee Valley Authority (TVA) and the Tennessee State General Assembly’s (Legislature) responses since the Kingston
ash release disaster.

The Sierra Club and TEC members who are signing these comments have attended most of the briefings by TDEC, TVA and EPA, conducted in Roane County and in the State Legislature, on the Kingston ash release disaster and both the causes and responses.

These comments are offered in light of the TVA Board’s announced plants to dispose of 10
million tons of coal ash per year into landfills. [Footnote 1: We were dismayed when EPA allowed TVA to permanently store some coal ash in a and unlined riparian impoundment adjacent to the Kingston plant.] Moving ten million cubic yards of coal ash across public roads

o r on rail lines that run through our farms, forests and cities is a significant risk. Neither our State landfill regulatory standards or the TDEC Solid Waste Division is up to this task. [Footnote 2: The indifference to the risk of coal ash was shown by th e suggest that TVA’s Integrated Resource Plan and link Programmatic Environmental Impact Statement should: “Develop ash and scrubber sludge disposal sites that can be redeveloped as residential or industrial sites.” Environmental Impact Statement Scoping R eport, November, 2009. Appendix B, found at: http://www.tva.gov/environment/reports/irp/pdf/irp_scoping_document.pdf] TDEC has repeatedly refused to consider state regulation of the transport of coal ash (or any other waste
classified as non

- hazardous. TDE C has also allowed coal ash (and radioactive waste) to be added179

to municipal landfills as “special waste” without any public notice or comment. See: http://www.state.tn.us/environmen t/permits/specwste.shtml )

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09770

- 2 

### Organization 1 

### : Upper Cumberland Group of the Sierra Club, et al. 

### Commenter 1 : Mary M. Mastin and Brian Paddock Commenter Type: A dvocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 8.6.1 

### Comment Excerpt Text: After we brought Dr. Dennis Lemly, a leading expert on the effects of selenium in aquatic life, to testify at a Tennessee House Conservation Committee meeting on a bill [Footnote 3: At the behest of coal mining industry the chairmen of the state House and Senate committees on the
environment had introduced bills to define the acute and chronic levels of selenium in the states Water Quality Standards at levels far higher than the levels currently specified in the EPA national guidance. Never before has the legislature considered itself to have the scientific expertise to define a Water Quality Standard an d intrude on the science based process used by EPA and TDEC to arrive at the Water Quality Standards embodied in state regulations and subject to triennial review.], we sat in on an interview by top TDEC officials with Dr. Lemly.
We have had numerous conve rsations with TDEC officials regarding the effects of selenium and other metals released to our waters from both wet and dry coal ash impoundments.

We are concerned that TDEC officials do not take seriously the long

- term effects of selenium discharges on fish and aquatic life (including fish reproductive capabilities) downstream of the Kingston coal ash disaster. We know that selenium’s threat is from bioaccumulation in fish and
in the foodchain for wildlife.

TDEC has continually downplayed the significan ce of impacts to aquatic life from selenium discharges related to coal and coal ash in water. Until recently, TDEC did not require selenium limits in NPDES coal mining permits. TDEC has recently proposed a new water quality standard
for selenium which we h ave contested as inadequate. From our observations, TDEC has downplayed the results of fish studies taken downstream of the Kingston disaster by scientists employed by organizations such as Appalachian State University, Watauga Riverkeepers and the
Tenness ee Aquarium.

Fish tissue studies at the Kingston site from June 2009, seven months after the “spill” were180

recently complied by Dr. Shea Tuberty of Appalachian State University. These show levels of 6.82 mg/kg and and 7.72 mg/kg in ovaries of redear sunfis h and large

- mouthed bass, which we understand is in the toxic range for reproductive failure A copy of Dr. Tuberty’s chart and a summary of his recent presentation of the results follow as endnote one. [Endnote 1: See Table 1 and subsequent discussion]

Res ponse: The Agency acknowledges and appreciates the comment. The commenter is referred to Units XI that discusses the damage cases resulting from improper CCR management.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09770

- 3 

### Organization 1 

### : Upper Cumberland Grou p of the Sierra Club, et al. 

### Commenter 1 : Mary M. Mastin and Brian Paddock Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
We have reviewed and commented on the NPDES permits for TVA’s coal fired power plants at Johnsonville and Kingston including the continuing unpermitted discharges to the Tennessee River from the leaking ash ponds at the Johnsonville Plant.

We observed the entire state legislative session in 2010 when TDEC failed to obtain passage of a resolution authorizing an inspection and report on impoundments which have long been exempted under the Tennessee the Safe Dams Act. This study would have provided the basis for eliminating the exemption for wastewater impoundments, like the TVA ash ponds.

In 2009 and 2010 we worked with a citizens group in Cumberland County who opposed a proposed landfill that would have accepted coal ash transported in ordinary dump trucks from TVA’s Kingston plant. The dum p site was to be an partially reclaimed coal strip mine at the top of Smith Mountain in Cumberland County, Tennessee. The application for a TN Solid Waste Act Subtitle D “permit by rule” for the site proposed that hundreds of ash filled trucks a day would traverse a narrow two lane mountain road that had already proved to be hazardous by the
numerous accidents which occurred while coal trucks used the road.

One step in the permitting process was a decision by the federal Office of Surface Mining (OSM)

to a llow a revision of the reclamation plan to all “industrial use” for a coal ash monofill. The Knoxville OSM allowed this revision despite strong objections by the National Park Service that discharges from mining derived sediment ponds and from waters that traversed the prosed land fill would pollute tributaries to Obed River National Wild and Scenic river. Were coal classified as a hazardous waste under Subtitle C, both the secure and contained transportation of the ash
and the deleterious effects of discha rges of metal polluted waters would have been treated more seriously and the unsuitability of the disposal site recognized much sooner, without the great expenditure of money and effort that local residents have had to make to protect their mountain
side e nvironment, the Obed River, its tributaries, and an incredible rich biodiverse area.181

Another example of the ineptitude of TN Solid Waste regulators is the issue of the recently issued permit for the Roberta landfill outside Oneida, TN. This permit is foun d at: http://www.state.tn.us/environment/swm/ppo/roberta_snl760281_letter_resp.pdf

This is a State landfill permit ostensibly for municipal solid waste, yet it is only for a 12 month period. The related Aquatic Resource Alteration Permit (ARAP) applicatio n stated that coal ash might be disposed of in the landfill but the Division of Solid Waste ignored this as ARAPs are under the Water Pollution Control Division. [Footnote 4: The ARAP is to allow a stream that flows into the hollow proposed for the landfil l to be captured in a french drain and conveyed beneath the liner of the landfill and then released to a tributary to the Big South Fork (BSF) which flows into the BSF National Recreation Area. The National Park Service has strongly objected to this permit and requested that additional efforts to identify threatened or endangered species by performed.] The Division of Water Pollution Control in turn ignored the likely disposal of coal ash in approving the National Pollution Discharge Elimination (NPDES) per mit which allows the leachate collected to be “treated” by the Oneida City wastewater treatment facility. Of course, that facility has no capacity to treat any heavy metals that may appear in the leachate once coals is contributing to the leachate composit ion. [Footnote 5: Because municipal sewage treatment plants cannot handle many industrial wastes, “Industrial wastes that are discharged to municipal sewer systems are subject to regulations. The Division of Water Pollution Control has given approval to 10 7 municipal pretreatment programs; 15 additional municipal pretreatment programs are in various phases of development. Discharge permits have been issued to approximately 750 industries.” TDEC website at: http://www.tn.gov/environment/wpc/] (Note also the information on the leakage from the composite liners as discussed in the letter from licensed Geologist Mark Quarles, attached.)

What will likely happen is that TVA coal ash will be disposed of in the “Roberta” landfill expansion under the invisible “spec ial waste” procedure cited above after the initial permit is renewed for a period of years and TVA has announced its long term plans for disposition of coal ash from the Kingston Plant.

As attorneys we have studied the state’s Solid Waste Act and solid wa ste regulations and found them lacking. In response, we drafted a bill that would have modernized state regulation of coal ash disposal in landfills, though it did not classify coal ash as hazardous waste. After extensive negotiation of revisions to the dr aft legislation, TDEC did not oppose the legislation or assert that it would have any substantial cost of implementation (fiscal note).

Despite a lack of any recorded opposition, the bill died. It took only two phone calls from the
State Chamber of Commer ce lobbyist, one to the subcommittee chair and one to the sponsor to kill the bill. The bill failed in the first legislative subcommittee for lack of a motion. We learned later that our House sponsor had accepted a $1,000 campaign contribution from the per mit applicant for the Smith Mountain coal ash landfill. He remained silent as a member of the subcommittee when a motion and second for the bill was called for by the chair. He failed to even move for approval of his own bill.

The state’s regulations of s olid waste are inadequate. We ask that the attached letter from geologist Mark Quarles to the Tennessee Solid Waste Advisory Committee be made a part of the182

record. Mr. Quarles letter spells out some of the inadequacies of Tennessee solid waste regulation as regards coal ash disposal, including the facts that in Tennessee there are: widespread landfill effects on groundwater [Footnote 6: According to TDEC’s own studies, at least 31% of all landfills are leaking leachate into our groundwater. Tennessee is al os the only state to allow low level nuclear waste into municipal landfills under the “Bulk Survey for Release” program. http://www.informthepublic.org/files/31_TN_Landfills_Leak_Anderson_Co_Landfill_Accepts_ Radioactive_Waste.htm. (2007)] [Footnote 7: See: Natural Resources Defense Council, Inc., Beatrice Holt, and Sheila Holt

- Orsted v. County of Dickson, Tennessee, City of Dickson, Tennessee, Alp Lighting and Ceiling Products, Inc., Nemak USA, Inc., and Interstate Packaging Company. U.S. District Court Mid dle District of TN, No. 3:08

- cv

- 00229.], landfills commonly located next to sensitive waterways, public water testing is not reflective of risks from landfills,
landfills are sometimes un

- monitored for contamination, landfills are commonly permitted in

ext reme karst conditions and problem wastes, like coal ash, require better design standards and disposal alternatives.

Current TDEC rules require liners for industrial waste landfills to meet the same technical standards as municipal solid waste landfills. S ometimes, the waste characteristics should require that TDEC implement more stringent standards. Instead TDEC still has “permit by rule” regulations allowing permits to spread coal ash on farm fields, and put it in unlined, uncontained and uncapped “fills” used to adjust roadbed grades and other similar situations No agency of the state regulates the transport of coal ash. Impacts from the transport of coal ash is one of the biggest concerns of citizens who live near one of the landfills that currently acce pts coal ash. At first, we understood that TVA would transport ash in sealed rail cars or in hopper type container
trucks or similar trucks that would not release ash to the environment.

In the final Environmental Assessment on the Kingston Dry Fly Ash Co nversion the Kingston, TVA says that its new dry ash fly ash will be “collected in the storage silos would be unloaded into pneumatic trucks, open trucks , or rail cars for transportation to disposal sites or for marketing purposes.” [Footnote 8: June 2010 Kingston Dry Fly Ash Conversion the Kingston, TVA, 2.1.2. Alternative B

– Action Alternative

– Dry Fly Ash Conversion] (Emphasis added)

When a public meeting was later held, TVA officials said they intended to transport by any means the TN Departments of Transportation would allow. TVA expected to use conventional dump trucks covered only with a roll out tarp. This is the method of transport now used to move ash from TVA’s Johnsonville Plant to the TransAsh Bivins landfill. It discharges either a flow of

a sh particles as air pollution or leaves dripping ash sludge along the roadways, depending on the
moisture content of the ash when it is loaded.

Although TDEC has taken some protective actions since the Kingston disaster, these changes
have not been codifi ed in law or regulation. For instance in January 2009, the TDEC Commissioner ordered a complete structural analysis of all Tennessee coal ash impoundments. This is commendable and reflects on TDEC's response to the Kingston disaster, but it is not an
effor t that was required by Tennessee laws or regulations.

TDEC asserts that all National Pollutant Discharge Elimination System (NPDES) permits for wet183

coal ash impoundments since the spill have structural integrity requirements. We believe these inspection r equirements are little changed from those that failed to protect us from the disastrous ash discharge at Kingston. According to the August 2010 Inspector General Report, stability of Dike C at Kingston remains a concern. [Footnote 9: Final Report

– Inspect ion 2009

- 12910

- 01

– Peer Review of Stability Analysis of Dike C at Kingston Fossil Plant]

Although TDEC’s most recent NPDES permits for TVA coal plants now contain “Dike Inspection Requirements”, these are not structural integrity standards that set specif ic guidelines for assuring that ash ponds are safe. Rather, they merely require operators to inspect for erosion, cracks, seeps and similar structural problems. If problems are observed, operators are required to address these problems, but no standards or guidelines are set for how to design or remediate these problems. The difference here is significant; it is the difference between imposing real safety standards and merely telling operators to keep an eye on their ponds.

Although EPA has the authority t o review all NPDES permits prior to issuance, with respect to coal ash impoundments, the Clean Water Act (CWA) addresses only pollution discharges, not structural stability, groundwater monitoring, closure, post

- closure care, financial assurances or
other such safeguards. Thus, compliance with the CWA does not mean that ash impoundments are sufficiently regulated, only that their wastewater discharges are addressed.

The Tennessee General Assembly passed legislation in 2009 requiring coal ash landfills to h ave a liner (of unspecified functionality, type, design or longevity) and a final cap (with no specifications). This is the only state statutory change since the Kingston disaster but it clearly is not a response to Kingston because the new requirement for liners and a final cap do not apply to wet impoundments, only to landfills. In an exception that eats the rule, the same amendment to the Solid Waste Act also exempts coal ash used as fill, agricultural uses, engineered uses, and, as previously mentioned wet impoundment. Therefore, it does not properly address the specific dangers of coal ash. TDEC did nothing to assist the sponsor to draft and enact a bill that would actually improve the quality of coal ash landfill containment standards.

Since the Kings ton disaster, so far was we know, TDEC has not allowed any coal ash landfill to be constructed under the “permit by rule” provisions of the regulations or waived appropriate regulations, and required all permit applications to meet Class II design criteria . We believe this is due to the Council’s and the Chapter’s regular scrutiny of landfill permit applications and strong public interest in the containment of coal ash. However, Tennessee regulations permit waivers of solid waste regulations and our concern is that a future administration is not bound to continue this practice. As with the structural analysis review, this is commendable, but without stronger regulations, the practices of the current administration will not necessarily continue.

It is laudab le that TVA has announced that it plans to move to dry coal ash storage at all of its
seven coal

- fired power plants in Tennessee. This move, while alleviating concerns of future disasters due to dike instability, etc in wet ash ponds, only highlights the p roblems with the inadequacy of Tennessee solid waste regulations and total lack of regulation over the transport of coal ash in the process.

We need federal regulation of coal ash as hazardous waste to provide protection to Tennessee184

citizens, waterways a nd waterlife. We believe that the situation nationwide demands the same.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating th is subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the c ommenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09808

- 3 

### Organization 1 

### : Wyoming Outdoor Council 

### Commenter 1 : Bruce Pendery Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.2.4 

### Comment Excerpt Text: The lesser effectiveness of the subtitle D approach, which wou ld primarily be implemented by the states, is emphasized by what EPA acknowledges are "gaps" in state regulation of these dangerous compounds. Not all states that have coal fired utilities have permit programs for landfills, and an even lesser percentage o f states have permitting programs for surface impoundments. Thirty

- six percent of the states do not have liner requirements for CCR landfills and 67 percent do not have CCR liner requirements for surface impoundments. Nineteen percent
of the states do not have minimum groundwater monitoring requirements for landfills and 61 percent do not have groundwater monitoring requirements for surface impoundments. Thus state regulation of CCRs appears significantly deficient, and assuming they would have improved

per formance under a subtitle DCCR program largely entrusted to their discretion seems misplaced. There is a need for consistent federal standards and a level playing field nationwide, and the subtitle C approach would achieve that.

Response: The Agency ackn owledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is r eferred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to

in corporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09820

- 3 

### Organization 1 

### : Tampa Electric Company 

### Commenter 1 : Gordon L. Gillette Commenter Type: Electric Utility Company Classification: Substantive185

Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Tampa Electric's efforts have also included many improvements to its CCR storage and handling facilities, including the capping and closure of inactive former CCR dispos al units, the lining of active impoundments and the redesign of systems to allow for direct load out and shipment (with no onsite storage) of byproducts to our CCR customers. These improvements have proven successful in ensuring that the temporary onsite s torage of CCR's which are destined for beneficial reuse, as well as the onsite disposal of the small percentage of unmarketable CCR's that we produce, are carried out in a manner that is environmentally acceptable. As required by the Florida Department of Environmental Protection's (FDEP) existing rules, we have retrofitted our storage and disposal areas with liner systems that comply with the permeability and leachate management standards contained in the existing federal Subtitle D regulations. These stan dards are administered by the FDEP under its EPA authorized Subtitle D Program, which governs the disposal of both Municipal Solid Waste and industrial byproducts such as CCR's. Also, as required by the FDEP's groundwater protection rules, we have installe d extensive groundwater monitoring networks at our facilities to demonstrate the effectiveness of the above improvements in protecting groundwater resources. Our company's experience is provided both as an example of the effectiveness of Florida's regulati on of CCR's under the federal program and as a model for other states to follow. Tampa Electric believes that by mandating Subtitle D regulation of CCR's and then requiring states to either implement the federal standards or demonstrate the equivalency of their own standards, as is the case with Florida's program, the EPA can accomplish its goal of assuring the safety and environmental performance of CCR disposal units nationwide. This approach could be fully enabled by federal legislation to provide EPA wi th the enforcement authority to require state conformance with the Subtitle D requirements for CCR's. However, the final Subtitle D regulatory proposal should allow for the continued operation of existing impoundments that can demonstrate equivalence to th e Subtitle D performance standards for such facilities, taking into account state and site

- specific considerations.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D r egulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded t o many comments on state186

programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09827

- 3 

### Organiz ation 1 

### : Kansas City Board of Public Utilities (BPU) 

### Commenter 1 : John Pettey Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
The State of Kansas has two State Departments with programs that address the concerns identified in the Proposed Rule. The Kansas Department of Health and Environment (KDHE) is one of the most advanced states in the regulation of solid waste and the regulation of ash landfills

an d wastewater treatment impoundments. KDHE and utilities in the state focus on recycle and
reuse of materials such as coal combustion residuals and the beneficial use of coal combustion residuals in Kansas is carefully controlled. The Kansas Department of A griculture Division of Water Resources implements regulatory requirements for dam safety permitting and regulatory inspections. The partnership that exists between the Kansas utilities and the Kansas Departments
to ensure effective control of coal combusti on residuals should not be disturbed by an overlay of federal requirements or by the addition of a very costly program that does not have corresponding benefits.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussio n of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09880

- 21 

### Organization 1 

### : FirstEnergy Corporation 

### Commenter 1 : Michael L. Horvath Commenter Type: Electric Utility Company187

Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
XI. Comments of the Various States

22. FirstEnergy is aware of a number of letters, comments and hearing testimonies by representatives from various state governments, state environmental protection agencies, state chambers of commerce, etc. We request th at tabulation, by state, be compiled by EPA and made part of the record. This compilation would take advantage of their knowledge regarding the management and regulation of these materials and should indicate:

• whether each state government, state EPA, o r other state agency has provided input of any kind to EPA in support of RCRA C or RCRA D regulation of CCR wastes,

• whether each state currently regulates CCRs as hazardous or solid wastes,

• whether each state has permitting programs in place or inten ds to promulgate such regulations requiring permits for the disposal of CCRs,

• whether each state has any coal

- fired power plants operating in that state (to eliminate irrelevant positions by non

- coal burning states used to possibly advantage one state o ver another).

Many governmental representatives from coal burning states have commented on this issue. Those positions are valid and EPA should rightfully consider, respond to and present their views
on the record

Response: The Agency acknowledges and ap preciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not r esponded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no fina l conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.188



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09884

- 8 

### Organization 1 

### : Luminant 

### Commenter 1 : Shawn Glacken Commenter Type: Electric Ut ility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: II. Luminant Supports the Texas Program for Regulation and Enforcement Texas currently has a sound program to regulate the management of CCR without a Federal program under Subtitle C or D. In Texas, if CCR is disposed of, it is regulated as industrial waste. If a generator stores, treats, or disposes its own non

- hazardous industrial waste, the generator must register with the TCEQ. A person that intends to store, process, or dispose industrial solid waste, including CCR, must provide notice to the TCEQ at least 90 days prior to the management of waste in a particular waste management unit.

Elements required as part of the not ification to the TCEQ, include waste composition and classification data, the regional geologic setting, site

- specific hydro

- geology, the results of a geotechnical investigation, engineering design and specifications, a groundwater monitoring plan
in which TCEQ has recently required including use of RCRA

- based statistical methods to evaluate any potential exceedances, a closure plan including the regulatory

- based methods that will be used to close the unit, and a post

- closure inspection and maintenance plan . It should be noted that facilities are also subject to general prohibitions against polluting water, creating a nuisance, and endangering public health and welfare.

These notification packages are reviewed by the TCEQ Waste Permits Division. These revie ws are thorough, detailed and comprehensive. Examples of some of TCEQ's comments include requests for justifications of monitoring well locations, statistical groundwater data evaluation procedures, and details on waste handling methods. The industrial sol id waste regulations and compliance with the general prohibitions in Texas are fostered and supported by a series of technical guidance documents referenced in state regulations. These documents, which are periodically updated by the TCEQ, cover topics ran ging from site selection, landfill design and construction to groundwater monitoring and thus address the significant issues that are stated by EPA to be addressed by its proposed CCR rules. Potential releases from CCR disposal units are
also addressed in state regulation. This program has a nearly IS

- year track record of success and is supported by a series of more than two dozen detailed guidance documents. TCEQ is currently developing the Texas Environmental Data System (TEDS) which will import spatial, chemistry, and geologic data and information into a database that will interface with software such as ArcGIS for mapping, RockWorks for visualization, Surfer for modeling and other applications to enhance evaluation of groundwater monitoring data and comp liance with state regulations.

The regulatory system in Texas is more pragmatic and less burdensome on regulated entities and on the regulatory resources allowing for a comprehensive program that is protective of human
health and the environment in a mann er that is efficient in its use of resources. Upgrades to existing systems in Texas that are based on good science and engineering and consider site

-189

specific conditions can also currently be made at a lower cost and with a much shorter implementation time. For example, over the last few years Luminant has improved much of its groundwater monitoring program to utilize low

- flow technology. This technology is preferred by the TCEQ and results in less water purged for sampling and a higher degree of confidence in the groundwater data.

Waste classification samples collected over the last 20 years from Luminant facilities that generate CCR, confirm that all CCR that Luminant generates are non

- hazardous. In addition to the same regulations that EPA currently utili zes to determine if a waste is characteristically hazardous, Texas has a detailed non

- hazardous waste classification system outlined in state regulation and supported by guidance documents.

Luminant has had a groundwater monitoring program for its CCR lan dfills and impoundments since the 1980's. Groundwater parameters analyzed are based on detailed analysis of waste classification samples and at a minimum include parameters commonly associated with CCR. Additional investigation and corrective action is imp lemented if necessary.

Texas existing regulations provide 8 criteria that are used to determine legitimate and safe beneficial uses of materials while applied to land. One of the criteria requires attainment of analytical thresholds to ensure safety of hu man health and the environment. Some of the thresholds were originally developed under the municipal sludge rules and others from detailed waste classification and groundwater protection criteria. Storage limitations prior to use are also specifically addr essed in the Texas rules. The use of bottom ash for fill and road

- base in Texas are just two of the examples that could be eliminated under EPA's proposed hazardous waste rule for CCR. The resulting economic impacts would be significant and would result in higher electricity costs without benefit to human health or the environment.

Texas has appropriate regulatory tools to manage CCR safely. At a time when competing priorities stretch agency resources, it is unjustified to add additional financial burdens that do not demonstrably improve or protect the citizens of Texas or the environment

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for

prom ulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furtherm ore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has no t responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state190

programs because the Agency has made no f inal conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09889

- 6 

### Organization 1 

### : Texas Association of Business 

### Commenter 1 : Stephen Minick Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 11.2.5 7.1.2.4 

### Comment Excerpt Text: While a rulemaking under the Subtitle D option, and particularly the “D Prim e” alternative, would be far preferable to TAB, we are of the opinion that Subtitle D regulation is not warranted at this time. States, such as Texas, which have developed and implemented effective and robust programs for regulation of both CCR management and disposal and dam safety should be allowed to continue to operate those programs in the absence of a clear demonstration that those programs are not adequately protecting public health and welfare to a degree consistent with any results anticipated unde r Subtitle D. CCR in Texas is regulated as an industrial solid waste and is subject to requirements for onsite disposal that include waste characterization and composition, prior notice of waste placement, site

- specific geology, hydrogeology, and engineeri ng, groundwater monitoring, and closure and post

- closure planning. Texas has also significantly increased its focus on dam safety in recent years and has established a comprehensive program based on national models that will increase the rate of inspection of dams, use remote sensing to verify the existence of previously unregistered or uncategorized dams and significantly improve public awareness of dam safety and the obligations and potential liabilities of dam owners and operators. The prospect that othe r states have not exercised the discretion to regulate CCR or dam safety in a manner that EPA may consider adequate is not justification at this time for uniform federal regulation, even under Subtitle D. Such regulation may not add any additional benefit to Texas, may well increase costs to both the state and businesses and could significantly reduce the real benefits of the Texas program to address regional and site

- specific circumstances timely, flexible and creatively while giving up nothing in the way of effective and safe waste management. The NPRM suggests that EPA is not familiar with the programs in place in the various states that manage significant volumes of CCR and even solicits comment on those programs to better inform this process. TAB sugges ts that before any proposal to regulate CCR under Subtitle C or D is advanced, that information should be reviewed carefully to determine where EPA’s efforts may be more appropriately focused on programs that need improvement. Further communication
with th ose states and possibly guidance from EPA as to what efforts in other states are proving effective would be a preferable next step before any further action to propose specific RCRA regulations.

Response: The Agency acknowledges and appreciates the commen t. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the191

technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09951

- 25 

### Organization 1 

### : Full Circle Solutions, Incorporated 

### Commenter 1 : Robert J. Waldrop Commenter Type: Beneficial User Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: State Programs

EPA has requested detailed information on current and past individual state regulatory and non

regulatory approaches taken to ensure the safe management of CCRs, not only under State wa ste authorities, but under other authorities as well, including the implementation of those approaches.

In Virginia, 9 VAC 20

- 80, allows for uses of CCPs that are either exempt or excluded from solid waste regulation. North Carolina allows for similar use s without solid waste permitting . These are found at 15A NCAC 13B.1708. These uses include: CCPs used for agricultural uses, road traction material, in the manufacture of another product, structural fill under a structure, for extraction or recovery of ma terials, and when processed with a cementitious binder to produce a stabilized structural fill product.

Both states also allow for the use of CCPs in structural fills or mine reclamation . Virginia's regulations are found at 9 VAC 20

- 85. North Carolina's are found under the solid waste regulations at 15A NCAC 13B .1700 .

Structural fill projects must comply with siting, design, construction, operating, and closure criteria. Siting criteria include separation from base floods, seasonal high groundwater tab le, streams, wells, bedrock outcrops, sinkholes, property boundaries, wetlands, inactive dumps and lagoons. Design and construction requirements include run

- on and runoff control, sloping, stormwater controls and compaction testing.

Operational requiremen ts include restrictions on tracking of mud or CCPs, prohibition on other wastes, dust control, engineered spreading and compaction, and erosion control measures. Closure criteria include soil cover, vegetation, prevention of disturbance, time limits, and d eed
recordation.

Response: The Agency acknowledges and appreciates the comment.192



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10160

- 2 

### Organization 1 

### : Commenter 1 : Donald A. Moen, P.E., Ph.D. Commenter Type: Private Citizen Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.1 

### Comment Excerpt Text: Of course we want to prevent a repeat of the Kingston Dam disaster but that does not require a hazardous waste determination. That only requires that physi cal containment facilities be properly designed. Here in North Dakota, I believe we have done an excellent job of that. OurNorth Dakota experience as well as experience in other states is available as input data for regulation under RCRASubtitle D. I think this makesalot more sense than regulation as "special
hazardous waste.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10166

- 9 

### Organization 1 

### : Consumers Energy Company 

### Commenter 1 : Gary A. Dawson Commenter Type: Electric Utility Company Classification: Su bstantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The State of Michigan, as noted above, enforces a regulatory program for CCRs under Part 115 of Michigan's Natural Resource and Environmental Protection Act (Public Act 451 of 1994) that
is well

- grounded in Subtitle D, viz .

- Provides for the issuance of construction permits for CCR facilities that meet the minimum requirements of 40 CFR Part 257 (RCRA Subtitle D)

- Requires financial assurance throughout t he operating life of the surface impoundment or landfill and through the post

- closure period . In addition to bond instruments, a perpetual care fund is required and based on the tons or cubic yards of CCRs disposed of in the facility .

- Provides for the issuance of 5

- year renewable operating licenses that stipulate requirements for193

operation, groundwater monitoring, closure, post

- closure, and corrective action (if necessary)

- Provides for a groundwater monitoring program consistent with 40 CFR Part 258 for water quality monitoring .

- Provides for closure with a final cover that meets construction criteria commensurate with RCRA Subtitle D unless an equivalent alternative cover is approved. The placement of final
cover and closure of all CCR facilities is certified by a registered professional engineer and documented in a Certified Quality Assurance (CQA) report consistent with 40 CFR Part 257.

- Consistent with 40 CFR Part 258, all CCR facilities closed in Michigan must maintain final cover at design depth, maintain vegetative cover and minimize erosion for 30 years after closure. Groundwater monitoring is required semiannually; financial assurance must also be maintained. These criteria are consistent with provisions of 40 CFR Part 258.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The co mmenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10167

- 3 

### Organization 1 

### : Northern Plains Resource Council 

### Commenter 1 : Ed Gulick Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
J. E. Corette coal

- fired power plant

Although Colstrip is the most glaring example of contamination, the problems with CCR's in Montana are not limited to Colstrip. In the town of Billings, the largest city in Montana, PPLM owns a smaller power plant, the J.E. Corette plant. This plant was built in 1968 and has been generating power and waste ever since. Thankfully, the Corette plant is very smart about beneficially usin g its coal ash and much of the coal ash is recycled. Indeed, Northern Plains' own office building has fly ash in their floors from this particular plant, and we believe that some
beneficial uses of CCR's are warranted.

However, the Corette plant also has an expired discharge permit (MT0000396) from the Montana DEQ through the Montana Pollution Discharge Elimination System (MPDES) that authorizes "discharge from the bottom ash handling system ." This water is used to slurry bottom ash and is then discharged in the Yellowstone River with very few water quality standards.194

Indeed, there are no tests for heavy metals or any other chemicals that could be present in CCR's, and the discharge permit authorizes a 1 .5 mile mixing zone that ends just upstream of the t own of Lockwood's water intake . This discharge permit was scheduled to be renewed in 2005 but has not yet been addressed by the DEQ. The rest of the CCR's from Corette are mainly recycled into concrete and used as mine fill. However, since there is little or no regulation in the state of Montana, the actual end uses of coal ash from this plant are untrackable.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agen cy’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill De termination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is rely ing on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because t he Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10167

- 4 

### Organization 1 

### : Northern Plains Resource Council 

### Commenter 1 : Ed Gulick Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.2.1 3.1.1 4.2.4 

### Comment Excerpt Text: Need for regulation

As shown by the problems outline above, federal oversight of CCR's is long overdue. The Montana DEQ has not had the capacity or wherewithal to deal with CCR's. Citizen's suits are only somewhat effective in addressing monetary costs to individual landowners. But these suits
have not addre ssed the root of the problem, which is the fact that the ponds are leaking in the first place. The industry is not interested in fixing the problem and is more focused on containing it. This amounts to a bandaid on a broken arm. More proactive, enforceable action is needed.

Subtitle D regulations would result in no change for the State of Montana, leaving our members in Colstrip to foot the bill. This approach has obviously not worked in the 30 years since Colstrip has been in operation, and it will not wo rk for the future years. On the other hand, Subtitle C195

regulations would provide citizens with a handle to address and perhaps stop coal ash problems early on through federal enforcement and involvement. The phasing out of wet storage would be a huge step toward solving some of the problems in Colstrip. Additionally, the industry's claim about a "stigma" surrounding beneficial uses is unmerited. The rules are written specifically to exempt beneficial uses and, as indicated by the EPA's own studies, would in crease approved beneficial uses. It is time for industry to stop passing on its costs to ranchers and other citizens living in Colstrip and other areas affected by CCR's.

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

re ferred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not , however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10179

- 3 

### Organization 1 

### : Greater Louisville Incorporated, Kentucky 

### Commenter 1 : Timothy J. Hagerty Commenter Type: Local Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.1 4.1.3 

### C omment Excerpt Text: Of the options outlined in the proposed rule making, GLI could support the regulation of CCRs under Subtitle D. It is our opinion that Subtitle D allows for a level of regulation that is equally protective of human health and the environment while allowing for regulatory oversight at an appropriate level. The Commonwealth of Kentucky currently has regulations and administrative procedures in place under 401 Kentucky Administrative Regulations (KAR) Chapter 45 for the disposal of CC Rs that conform to the federal regulations for Subtitle D. This existing structure will allow Kentucky to continue the regulation of CCRs in the most efficient and effective manner. GLI also encourages EPA to implement the "D Prime" alternative as an effec tive means of appropriately regulating surface impoundments for CCRs.196

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the comm enter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10262

- 1 

### Organization 1 

### : Bert & Wetta Abilene, Inc. 

### Com menter 1 : Stan Foltz Commenter Type: Beneficial User Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 9.3.7 9.2.1 

### Comment Excerpt Text: Your agency has proposed two options for regulating the disposal, storage and beneficial use of CCR. The first option is a bifurcated approach and will be especially burdensome. Kansas law does not allow the land disposal of hazardous waste in the state. If the first option prevails,
Kansas utilities could be required to haul all CCR out of Kansas to an unknown hazardous waste site in another state, provided that facility would accept it. The costs of such a transfer would certainly increase the residential electricity rates my employees pay, but also the rates I pay for my business. If Kansas law were changed to allow onsite disposal of CCR the hazardous waste permitting challenges would be substantial. Money removed from consumer and business spending to pay for higher electric rates will dampen an already wea k recovery. Option one will reduce job development and growth in my state. Unnecessary and costly regulation places added
stress on businesses to remain viable.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10366

- 1 

### Organization 1 

### : Commenter 1 : S. Woods Commenter Type: Private Citizen Classification: Non

- substantive Comment Category: Current Task: Examine Context Assigned/Due:197



### Comment Excerpt Text: I understand from our (AG) that he is handling business for the state of Oregon. The (AG'S) plan is working. I'm hoping that our model from our state will help as a role model for the other state s to follow.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 46 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) et al. 

### Commenter 1 : James R. Roewer Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: C. The Subtitle D Program Must Include A Mechanism For State Implementation Of The CCR
Rules

While USWAG supports the Subtitle D Prime opti on (with the adjustments discussed below), a major shortcoming of this approach, as well as with the other Subtitle D alternatives, is the lack of any mechanism for qualified state programs to step in and directly administer the Subtitle D regulations, whe re the state programs meet or exceed the federal controls. Such an approach makes no practical sense, and would result in parallel and redundant regulatory programs for the same materials and, more importantly, would directly contravene the Bevill Amendmen t‘s directive that EPA avoid duplication of effort with pre

- existing regulatory programs. See RCRA 8002(n). [Footnote 34: This section provides, in relevant part, that “the Administrator shall, as he deems appropriate, review studies and other actions of o ther Federal and State agencies concerning [CCRs] and invite participation by other concerned parties, including industry and other Federal and State agencies, with a view toward avoiding duplication of effort.” 42 U.S.C. § 6982(n). ] EPA has previously re cognized this point. One of the Agency‘s primary reasons for concluding in its 2000 Regulatory Determination that CCRs do not warrant Subtitle C regulation was Congress‘s admonition in the Bevill Amendment against duplication of efforts by other
federal an d state agencies. 65 Fed. Reg. at 32215. Unfortunately, EPA has failed to adhere to this congressional directive in the proposed Subtitle D regulatory alternatives, including the Subtitle D Prime option.

As a result of its findings in the final 2000 Regul atory Determination and the supplemental DOE/EPA Report of state CCR programs, EPA is well aware that there are many mature state CCR regulatory programs with permitting, liner, and groundwater monitoring controls similar to those proposed in the Subtitle D options. In fact, EPA concluded in its 2000 Regulatory Determination that state CCR controls have “substantially improved over the last 15 years,” and that a “high percentage of states had authority to impose protective management standards on
surface im poundments and landfills, especially for groundwater monitoring, liners, and leachate collection . . . .” Id. at 32229. The DOE/EPA Report, which evaluated changes in state CCR controls that occurred after 1995 (the cut

- off date for the data used in the 19 99 Report to198

Congress), found even further improvements in state CCR controls. Based on the states surveyed, the report found more stringent state CCR controls with respect to permitting, liner, groundwater monitoring, leachate collection, closure and post

- closure care, and siting requirements. DOE/EPA Report at S

- 8.

In addition, the most recent survey of state CCR controls compiled in 2009 by ASTSWMO confirms the increasing level of protection provided by state controls, finding, among other things, that 86% of the states with CCR landfills and 69% of states with CCR surface impoundments have permitting requirements for these disposal units. Letter from ASTSWMO to Matt Hale, EPA (April 1, 2009) (attached as Appendix 12). Nonetheless, under all the proposed Subtitle D options, these state controls would be administered in addition to and without coordination with nearly identical, self implementing federal controls. Such duplication is both unnecessary and unduly burdensome.

Under this dual regulatory appro ach, for example, an owner/operator of a CCR disposal facility
could be found to be in non

- compliance with a groundwater monitoring requirement that is
contained in both the Subtitle D self

- implementing rule and in an independently administered state regul atory program. In these circumstances, the owner/operator could be subject to a citizen suit enforcement action in federal court for alleged violation of the self

- implementing Subtitle D rule, and to a wholly separate enforcement action in state court for violation of the parallel state requirement. This makes no sense; apart from the waste of federal and state judicial resources, it could result in inconsistent federal and state court determinations with respect to an identical regulatory requirement.

It is essential that any final Subtitle D rules for CCRs include a mechanism for qualified state programs to administer the rules in lieu of the self

- implementing approach set forth in the proposal. As discussed below, EPA could readily develop a process for evaluating state CCR controls and determining whether state controls are no less stringent than the final Subtitle D controls (much like EPA does now in the case of municipal solid waste landfills under 40 C.F.R. Part 258). In those states that have qualif ying controls for CCRs, EPA would allow the states to administer the controls to avoid the duplication of regulatory programs, with appropriate EPA backup. In this way, many of the self

- implementing procedures in the Subtitle D approach could
be eliminated as there would be a qualified state regulatory body with responsibility for ensuring compliance with the applicable requirements. This approach would allow for the requisite degree
of state involvement in administration of the CCR rules that EPA concluded was appropriate in its Report to Congress and final Regulatory Determinations, and avoid duplication of regulatory controls as directed by the Bevill Amendment.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussio n of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.199



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10550

- 2 

### Organization 1 

### : Lake Wylie Marine Commission (LWMC) 

### Commenter 1 : H. S. Hanks Commenter Type: Local Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Se ctions: 4.2.6 

### Comment Excerpt Text: Subtitle D is weak. States have proven that they are not going to appropriate adequate funds to monitor and inspect coal ash [illeible]. Clearly Tennessee, North Carolina, South Carolina, and Alabama are not inspecting and testing CCR storage at a reasonable level. The EPA is going to have to inspect or require the states to test and inspect storage, transportation, and disposal of
CCR.

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

re ferred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10592_DC

- 006

- 1 

### Organization 1 

### : Environmental Integrity Project (EIP) 

### Commenter 1 : Lisa Widawsky Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.2.4 

### Comment Excerpt Text: Although Pennsylvania has among the most extensive coal ash disposal regulations in the country, requiring liners, groundwater monitoring, and other protections that many other states in
the count ry still lack in the absence of a federal Subtitle C RCRA regulation, its coal ash regulatory system is fraught with gaps that make the Subtitle C regulation a necessity for the protection of Pennsylvanians as well.

The Pennsylvania regulations have grand fathered out of regulation disposal sites that were active before the regulations were promulgated in 1992, and have left dangerous loopholes that permit, and even promote, dangerous “so

- called beneficial uses” like reclamation of abandoned mines
with coal ash. These deficiencies in the state regulatory scheme have put communities at risk despite the state’s intention to regulate this toxic waste stream with more stringent regulations than most other states and especially most other coal states. I’d like to talk today about some of200

the people I have met and how an EPA Subtitle C regulation is the only regulatory mechanism that will save them from the perils of mismanaged disposal of coal ash.

When you are deciding whether to regulate coal ash under the fede rally enforceable Subtitle C or the “suggested guideline” that is Subtitle D, please think about the 30

- year old man who bought his first house and had begun to make costly improvements when his drinking well, about 1,000 yards from FirstEnergy’s unlined L ittle Blue Run surface impoundment that was featured in EIP, Earthjustice, and Sierra Club’s most recent damage case report, was measured to be contaminated with arsenic over the maximum contaminant level, causing him to abandon his
home. Is his hard

- earne d savings and his life worth the cost it would have taken FirstEnergy to dispose of their coal ash in a lined landfill?

Despite numerous letters and Notice of Violations from P ADEP for fugitive dust emissions and arsenic pollution, and despite the Planni ng Commission’s vote not to further expand this large impoundment, FirstEnergy is asking residents to sign waivers allowing FirstEnergy to dump in violation of Pennsylvania regulations establishing a mandatory setback. Because Little Blue (a
misnomer for a n impoundment permitted to occupy 1,694.9 acres, or 18% of the landmass of Greene Township, P A) was permitted before the Pennsylvania coal ash regulations were promulgated before 1992, FirstEnergy has been permitted to continue dumping arsenic

- laden
coal ash there, to the tune of up to 1 to 3 million gallons per day, and even secured an expansion in 2006 dump ash at a higher elevation in the impoundment than ever before allowed. This High Hazard impoundment is kept back from the Ohio River and the Ohio com munity that lives immediately across it by only an earthen dam, the largest of its kind in the United States. A federal Subtitle C regulation would require First Energy to phase out dumping of coal ash at this impoundment, daily cover, and several other re quirements that would protect this community
from the arsenic

- laden fly ash and flue gas desulfurization sludge that is this town’s most unwelcome neighbor.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of t he technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreo ver, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtit le D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, respo nded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.201



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10623_DC

- 037

- 1 

### Organization 1 

### : Maryland Energy Report 

### Commenter 1 : John N. Howley Commenter Type: Media Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
I would like to bri ng to the attention of EPA some new information from Maryland that may assist the Agency in completing its work on the Proposed Rule on the Disposal of Coal Combustion Residues (CCRs) from Electric Utilities.

Maryland is in the middle of transforming its coal

- fired power generation sector and this will mean big improvements in air quality. The 2006 Maryland Healthy Air Act (HAA) will significantly reduce Nitrogen Oxides, Sulfur Dioxides, and Mercury emissions by 2013. (Power plants cannot purchase emission s permits from out of state.)

Meanwhile, Maryland’s new regulations on the disposal of toxic CCRs took effect at the end of 2008. [Footnote 1: EPA has noted our state’s new CCR regulations

-- although the Regulatory Impact Analysis shows Maryland as havin g no regulations. Exhibit E1, Appendix for Regulatory Impact Analysis For EPA’s Proposed RCRA Regulation Of Coal Combustion Residues Generated by the Electric Utility Industry.] (The state has proposed additional regulation addressing beneficial use and tr ansportation of CCRs.)

Maryland is a small state but we do burn our share of toxic coal. EPA has taken note of the most serious instances of damage caused by improper disposal of CCRs in our state. These include the Faulkner Flyash Site and the sand and g ravel pit in Gambrills, Maryland. The Maryland Department of the Environment (MOE) reports a total of 33 toxic CCR disposal sites. [Footnote 2: MOE. Facts About Coal Combustion Byproduct Sites in Maryland, http://www.mde.state.md.us/assets/documentiFactShe etCCBSites.pdf.]

The new regulations require annual reports from CCR generators. As generators implement the new emissions controls, these reports could provide EPA with a useful case study that can inform projections of the ratio of CCRs to tons of coal burned. [Footnote 3: EPA’s Regulatory Impact Analysis uses a fixed ratio. In the Appendix, EPA also displays a rising ratio, based on projections from recent years. Table F

- 6, p. 271, Appendix for Regulatory Impact Analysis For EPA’s Proposed RCRA Regulati on Of Coal Combustion Residues Generated by the Electric Utility Industry.]

According to MOE, in 2008, “A total of approximately 2 million tons of coal ash (fly and bottom ash) is generated annually from Maryland plants.” MOE goes on to state that:

FGD s ludge will be generated beginning in 2010 ... once flue gas desulphurization equipment (also known as “scrubbers’) is operational, as required under the Healthy Air Act. Once these202

pollutant control technologies are operational approximately 2.5 million to ns of scrubber sludge will be generated annually. [Footnote 4: MDE, Facts About Coal Combustion Byproducts, http://www.mde.state.md.uslassets/document/CCBs_Fact_Sheet.pdf.]

Maryland’s experience could mean that the nationwide increase resulting from bette r air quality controls may be even faster than EPA projects.

The MOE reports throw light on another issue that EPA should take note of: the interstate transport of CCRs. Generator reports for 2009 show that more half of the CCRs generated were transported out of state for disposal. [Footnote 5: MDE, 2009 Coal Combustion Byproducts (CCBs)

-- Generation, Disposition, and Sources, http://www.mde.state.md.us/assets/documentlccb/2009_Coal_Ash_ Volume_Reports_Summary.pdf] These materials went to landfills, minef ills as well as manufacturing plants.

Please note that these figures do not yet include any scrubber sludge. Unless new permitted landfills or processing capacity is put in place quickly, it is likely that much of the additional 2.5
million tons of scrubb er sludge predicted by MOE will also be exported from the state. [Footnote 6: There is an active application before the Public Service Commission to build a CCR processing facility at the Morgantown generating plant; see Case 9229. August 30, 2010 2 Maryla ndEnergyReport.org]

In the absence of a strong, nationwide regulatory structure, it is reasonable to assume that as individual states improve their own regulations, toxic coal combustion waste may flow across state lines in increasing amounts. It is quite common for economic activities to shift away from jurisdictions with stronger protections and move towards those that are more lax.

While Maryland’s rate of export mayor may not be representative, it should serve as a reminder
that toxic CCRs do move acr oss state lines and will likely do so in higher volumes in the years to

come.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgatin g this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10632_DC

- 047

- 1 

### Organization 1 

### : Virginia Department of Environmental Quality 

### Commenter 1 : Jeffery Steers Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:203

Other Sections: 4.2.5 

### Comment Excerpt Text: Good morning, my name is Jeffery Steers and I am the Waste Division Director for the Virginia Department of Environmental Quality. Today, I am providing an abbreviated version of our Agency's formal written comments on EPA's proposed regulatory schemes for Coal Combustion Residue, commonly referred to as CCR. While the Commonwealth acknowledges that improvements to the management of CCR are needed, such regulatory changes are best left to individual states. Virginia has a strong solid waste program and that regulates the management of coal ash as industrial waste under this program. Virginia’s regulations provide requirements for CCR management, including appropriate criteria for disposal units, while also allowing for its
beneficial reuse in a manner that i s protective of human health and the environment. The Commonwealth recognizes the need to continuously enhance its regulations, and have been actively doing so, even prior to EPA's proposed regulation.

Virginia has concerns with EPA's proposals regarding the regulation of CCR, again, we believe that regulation of this material is best left to the States.

We are especially concerned with EPA's proposal to regulate this material as a hazardous waste
under RCRA Subtitle C. EPA asserts that such treatment i s necessary for EPA to retain and exercise appropriate enforcement authority. States, like Virginia, have consistently demonstrated the ability to conduct an effective and comprehensive RCRA compliance/ enforcement program, as is illustrated by EPA's own f eedback during the State Review Framework process. We would remind you that EPA already does have broad RCRA 7003 enforcement authority to address Potential Substantial Threats or Endangerments to Human Health and the Environment for
releases of solid wast e.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface im poundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10634_DC

- 049

- 1 

### Organization 1 

### : PPL Corporation (PPL) 

### Commenter 1 : Craig S. Shamory Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.3 

### Comment Excerpt Text: PPL owns or controls nearly 12,000 megawatts of merchant power generation in 5 states, including 4 coal plants in P ennsylvania and Montana. Annually, we generate about 3 million tons
of coal combustion residuals

- CCRs

- and of that total we beneficially use about 2 million tons.204

CCRs from our Pennsylvania plants have been regulated effectively since 1992 as a non

haza rdous waste under Pennsylvania's Residual Waste Regulations. Furthermore, Pennsylvania and Montana recognize that properly implemented beneficial uses are an environmentally responsible option for managing these materials.

Response: The commenter is refe rred to Unit IV of t he preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10636_DC

- 076

- 4 

### Organization 1 

### : Sierra Club 

### Commenter 1 : Leslie G. Fields Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 9.2.3 

### Comment Excerpt Tex t: In West Virginia, the Sierra Club EJ organizer has reported that even though WV ranks 5th in the country for coal ash generation, many communities do not know of the extent of contamination or dangers of living around ponds. The U.S. EPA has not yet gat hered information on coal ash landfills, so a detailed breakdown is not yet available. However, according to a 2007 EPA risk assessment, five surface impoundments and landfills in West Virginia are unlined, and two are only clay

- lined. [Footnote 4: www.act ion.sierraclub.org/site/DocServer/wv

- coal

- ash

- factsheet] Of these sites, four do not have a leachate collection system in place, and three have no groundwater monitoring. [Footnote 5: Id.]

Response: The Agency acknowledges and appreciates the comment. T he commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10641_DC

- 081

- 2 

### Organization 1 

### : Commenter 1 : Lisa Graves

- Marcucci Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:205

Throughout the next few weeks, you will be introduced to real people living

- and dying

- with the dangers created by mismanaged coal ash dumping. Pro

- industry policies at the PA DEP are running rampant

- as evidence by file reviews and the recent reports, O ut of Control and In Harm's Way.

I have reviewed tens of thousands of PA DEP documents throughout the past decade and I can tell you unequivocally

- 1 have never reviewed a coal ash disposal site in PA that didn’t have contamination. Every single site I ha ve ever reviewed has contamination noted

- highlighted in yellow or circled in pencil. Time and time again the PA DEP does nothing but file the
documents. Enforcement is non - existent

- industry is given "get out of jail free" cards

- and the damage is allowe d to persist.

I ask you to remember our faces

- we are real people who don't have high

- powered lobbyists to speak on our behalf. Hundreds of us will be attending these important hearings. We ask that you
listen to our stories and concerns

- these are actual accounts of what's really going on

- not the lobbyists' or state regulators' mythical versions.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10670_DC

- 055

- 1 

### Organization 1 

### : Maryland Commission on Environmental Justice and Sustainable
Communities 

### Commenter 1 : Vernice Miller

- Travis Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 6.1.1 

### Comment Excerpt Text:
Coal Combustion Waste Sites Have Contaminated Drinking Water in Maryland

As Vice Chair of the Maryland Commission on Environmental Justice and Sustainable Communities, issues of environmental injustice, and ecological degradation and disproportionate
human hea lth impact in our state are of great concern to me. Maryland is home to multiple coal combustion waste sites that have contaminated drinking water wells and polluted surface waters and the environment with arsenic, cadmium, selenium, nickel, thallium, and other toxic pollutants. In 2008, a major energy producer in our state entered into a multimillion dollar settlement agreement to clean up arsenic, cadmium, and other pollutants in drinking water wells. The state of Maryland has taken enforcement action aga inst another power company and two of its subsidiaries for Clean Water Act violations at the Faulkner coal combustion waste facility in Charles County, MD, and has recently filed a complaint in federal court for CWA violations at this same Power company's coal combustion waste landfill in Brandywine, MD in Prince George's County not far from the town where I live. The site in Brandywine has contaminated groundwater and is threatening the drinking water wells of residents in this town, and threatens
the Patu xent River, a tributary to the Chesapeake Bay.206

Our state has recently promulgated coal combustion waste regulations which are a step in the right direction, yet they do not go far enough to provide communities comprehensive protection from the risks poses by CCW landfills and coal ponds.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10670_DC

- 055

- 3 

### Organization 1 

### : Maryland Commission on Environmental Justice and Sustainable
Communities 

### Commenter 1 : Ver nice Miller

- Travis Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.2.4 3.1.1 6.1.1 

### Comment Excerpt Text: Drinking Water Is At Risk

Unfortunately states do not generally require off

- site monitoring of drinking water wells beyond the fenceline, even when there is documented contamination at the coal ash waste site boundary.
Where off

- site sampling of private wells occurred, contaminated drinking water was found in every case. Even when groundwater is periodically sampled for pollutants state agencies usually fail to sample beyond Coal Combustion Waste property boundaries to see how far that pollution
has traveled.

Many states require no groundwater monitoring at a ll, especially at coal ash ponds. Alabama for example is a large coal ash generating and receiving state, yet it does not require, via state law, groundwater monitoring at coal ash ponds while they are still operational. How then can they
determine that th e millions of tons of coal ash waste they are storing in landfills and ponds, such as the site in Uniontown, Perry County, Alabama, are not adversely affecting nearby residents, agricultural lands and groundwater?

Illegal open dumping in violation of fede ral law may be occurring. Many sites where groundwater is contaminated may be due to illegal open coal ash dumps according to federal law, based on high levels of metal found in groundwater at these sites. But because open Coal Combustion Waste dumping reg ulations are part of subtitle D of the Resource Conservation and Recovery Act (RCRA), US EPA has no authority to enforce these standards. Even though states have the authority to enforce the prohibition, it appears that some states may have ignored the
fed eral law and allowed illegal CCW dumps to operate and contaminate drinking water sources. The failure of states to enforce RCRA subtitle D guidelines and the failure of plant operators to comply with those requirements indicates that "guidelines" under sub title D are insufficient to guarantee compliance with federal safeguards.

Few CCW disposal sites are subject to Clean Water Act permits that monitor, or limit, the full range of toxic metals that are discharged from CCW disposal sites. At a minimum EPA mu st take basic steps to protect the off

- site environment at CCW sites, and set limits on the discharge207

of leachate or wastewater that are based on best available treatment and containment standards, and which are designed to protect rivers and streams. This is particularly important in a state like Maryland where rivers and streams empty into the ecologically fragile and highly threatened Chesapeake Bay.

For these reasons and so many more, coal ash must be regulated under RCRA subtitle C, as special waste b y US EPA, with all the attenuated safeguards that requires.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10697_DEN

- 007

- 2 

### Organization 1 

### : Wyoming Department of Environmental Quality 

### Commenter 1 : John Corra Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: CCR is a regulated solid waste in Wyoming. CCR disposal is regulated by two separate WDEQ Divisions; the Solid and Hazardous Waste Division (SHWD) and the Water Quality Division (WQD). SH WD regulates dry CCR disposal under W.S. § 35

- 11

- 501 to 35

- 11

- 504 and the Industrial Landfill Regulations in Chapter 3 of our Solid Waste Rules and Regulations. SHWD also regulates the beneficial use of CCR by providing case

- by case permit exemptions which may be revoked if CCR is misused. WQD regulates surface impoundments for the disposal of wet CCR as wastewater under W.S. § 35

- 11

- 101 to 115, 35

- 11

- 301 to 312, 35

- 11

- 901 and Chapters 3, 8 and 11 of our Water Quality Rules and Regulations.

Response: The Agency acknowledges and appreciates the comment.208



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10700_DEN

- 012

- 3 

### Organization 1 

### : Greenpeace USA 

### Commenter 1 : Robert Gardner Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current T ask: Examine Context Assigned/Due: Other Sections: 4.2.4 

### Comment Excerpt Text: Business as usual will not protect the health and welfare of the American people. Responding to pressure from the utility industry, prior administrations have allowed the industry to ‘police itself’ or self

- regulate under a patchwork of state directives leading to the extensive contamination of water and land by toxic heavy metals. This approach has not and will not protect streams, ponds, rivers, lakes and other waters.

E veryone in this room probably remembers the Kingston TV A Spill in Harriman, Tennessee? The failure of that sludge impoundment released over 1 billion gallons of toxic coal ash sludge over 300 acres, poisoning everything in its path. The response? It was “ cleaned up” by shipping it on over to Perry County, Alabama, which currently has no regulations regarding disposal of coal ash. None. This is unacceptable.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10712_DEN

- 024

- 1 

### Organization 1 

### : Colorado Department of Public Health and Environment 

### Commenter 1 : Joe Schieffelin Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 5.3.5 

### Comment Excerpt Text: The Solid and Hazardous Waste Program regulates all disposal and beneficial re

- use of Coal
Combustion Residuals in Colorado.

We have representative analytical data on the Coal Combustion Residuals produced in C olorado
and no data has ever indicated levels of contamination close to those that would make the
residuals hazardous waste.

We have ground water monitoring data around Coal Combustion Residuals de

- watering and disposal areas and no data indicates a relea se to ground water has occurred.

However, if a release were to occur: We have enforcement authority to rapidly and effectively
deal with non

- compliant situations, including releases to soil, ground water, surface water, and exposures to people. This inclu des administrative order authority with injunctive relief,209

corrective action authority, and penalties up to $10,000/day/violation. Colorado actively uses these authorities in implementation of our Solid Waste Program.

Through this same regulatory construc t, we safely and effectively regulate municipal solid waste everyday

- a waste stream with higher hazards than Coal Combustion Residuals because it includes household hazardous wastes, heavy metals, and organic, acidic, and alkaline materials.

Through this same regulatory construct, we safely and effectively regulate municipal solid waste everyday

- a waste stream with higher hazards than Coal Combustion Residuals because it includes household hazardous wastes, heavy metals, and organic, acidic, and alkalin e materials.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and s urface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a di scussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has respo nded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10718_DEN

- 030

- 2 

### Organization 1 

### : Rocker Six Cattle Company 

### Commenter 1 : Clint McRae Commenter Type: Other Company Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 8.6.1 1.1 

### Comment Excerpt Text: Subtitle C is wholly insufficient to stop groundwater impacts from the PP&L power plants. Such requirements have been in place for decades in Montana, and the state has done nothing to stem
the contamination in our livestock wells.

PP&L’s $25 million settlement to 60 homeowners in Colstrip is an admission that ash pond
effluent is hazardous. This leak creates a human health issue. The 3 and 4 EHP leaks water that is 16 times the toxic level to cause death in cattle. This is an agricultural herd health issue. This is not benign, it is hazardous, and as a rancher who lives down gradient of a leaking ash pond, I ask210

you to please designate coal ash as hazar dous.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10736_DEN

- 048

- 1 

### Organization 1 

### : Earthjustice 

### Commenter 1 : Melanie Kay Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.2.2 

### Comment Excerpt Text: First, the current laws of western states governing coal ash disposal are grossly inadequate. Of the ten states surrounding Colorado that generate the largest volumes of ash, [Footnote 1: AZ, CO, KS. MT. NO, NM, NV, OK, UT. and WY.] seven do not require groundwater monitoring at coal ash surface impoundments. This single regulatory requirement is so important that EPA uses
it as a benchmark to predict whether a state will adopt the proposed subtitle D guidelines. In other words, if a state has not yet required its most dangerous waste dumps to monitor the underlying groundwater, then EPA assumes that these states will not enforce or adopt new guidelines that are not mandatory. Thus EPA believes that the west, with its booming coal industry, is out of luck under the subtitle D scheme. And the status quo of state regulations is indeed dismal. In fact, Kansas, Montana, New Mexico and Utah exempt coal ash from their solid waste regulations entirely. Consequently, landfills and waste ponds are not required by law in these four states to employ even the most basic safeguards such as liners, monitoring, corrective
action and financial assurance.

Resp onse: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundmen ts. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how E PA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10751_DEN

- 063

- 3 

### Organization 1 

### : Arizona Public Service Company (APS) 

### Commenter 1 : Scott Davis211

Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.5.1 

### Comment Excerpt Text: In Arizona, coal ash disposal units are regulated under the Department of Environmental Quali ty Aquifer Protection Program and the Department of Water Resources Dam Safety Program. Working in tandem, these programs impose stringent requirements to ensure that the environment and public safety are protected. I would suggest that EPA look to Arizona as a model for how CCR can and should be regulated by the states.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10752_DEN

- 064

- 3 

### Organization 1 

### : Xcel Energy 

### Commenter 1 : Terry Coss Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.5.1 

### Comment Excerpt Text: Our third concern is that EPA's proposal discounts the important role that many States play

t oday. Our states are very active in our landfill and pond operations, with programs that include permits & operating plans, inspections, and requirements for closure. State engineers, geologists and hydrologists are in the best position to implement such p rograms. To avoid duplication, we urge EPA to allow states with effective programs to continue to administer them under Subtitle

D. Federal efforts should focus on the few states that may need improvement.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10771_DA

- 002

- 3 

### Organization 1 

### : Dynegy Inc. 

### Commenter 1 : Linda Whelan Commenter Type: Electric Utility Company Classification: Substantiv e Comment Category: Current Task: Examine Context Assigned/Due:212

Other Sections: 4.2.1 4.2.5 3.2.3 

### Comment Excerpt Text: EPA's stated reason for favoring the Subtitle C hazardous approach is concern regarding enforcement capabilities. Yet federal regulation of CCRs as non

- hazardous provides extensive
enforcement avenues:

1. Most states already have robust regulatory programs that apply to CCR management. Many states are likely to adopt federal Subtitle D requirements. Even in the absence of a stat e program, CCR facilities must meet Subpart D requirements; they are not optional, unenforceable guidelines.

2. Under RCRA § 7002 any person, including States, can bring a civil enforcement action against any facility for violating any Subtitle D requirem ent. EPA is also proposing the extensive public release of CCR inspection and monitoring data to further enable this provision.

3. Under RCRA § 7003, EPA can also enforce Subtitle D requirements whenever a CCR facility "may present an imminent and substan tial endangerment to health or the environment". The threshold for EPA to use this authority is low, as the Courts have interpreted RCRA § 7003 broadly.

4. Finally, to ensure compliance of CCR operations, EPA also has separate enforcement authority under the federal Clean Water Act, as does the Office of Surface Mining under the federal Surface Mining Reclamation and Enforcement Act.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preambl e discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical standards t he Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10806_DA

- 036

- 1 

### Organization 1 

### : Luminant 

### Commenter 1 : Julie Prejean Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.2.4 

### Comment Excerpt Text: With Texas Commission on Environmental Quality’s oversight, Luminant’s coal

- fueled power plants, such as Oak Grove, make it a priority to routinely inspect and maintain our CCR landfills and surface impoundments. An annual critical impoundment inspection i s conducted by a registered Professional Engineer on surface impoundments that contain CCRs. These reports are213

kept on site for a minimum of three years as part of the company’s impoundment inspection

program.

All of our managed ash disposal areas are als o inspected by the TCEQ periodically to ensure compliance with all applicable state and federal regulations.

TCEQ has a comprehensive regulatory program to safely regulate CCR disposal practices. Environmental risk is dependent in part upon site specific factors such as depth to groundwater, annual rainfall, and the amount of clay present in the soil.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rati onale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10807_DA

- 037

- 1 

### Organization 1 

### : Earthjustice, EIP and Sierra Club 

### Commenter 1 : Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 8.5 6.1.1 

### Comment Excerpt Text: [See original comment f

or copy of "Coal Ash: SIX MYTHS the Utility Industry Wants You to Believe and SIX FACTS You Need to Know," published by Earthjustice, EIP and Sierra Club]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10809_DA

- 039

- 2 

### Organization 1 

### : Commenter 1 : Rogers Dennis Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
Texas is second in the nation in coal ash generation. There are no leachate collection systems in Texas, and there is no groundwater monitoring.214

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for t he Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promu lgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10820_DA

- 050

- 2 

### Organization 1 

### : Association of Electric Companies of Texas (AECT) 

### Commenter 1 : Walt Baum Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The Texas Commission on Environmental Quality (TCEQ) oversees the design, construction, monitoring, reporting and final closure of all CCR disposal facilities. TCEQ's robust state regulatory program ensures the disposal and reuse of CCRs are conducted in a manner that is protective of human health and the environment.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10822_DA

- 052

- 1 

### Organization 1 

### : Luminant 

### Commenter 1 : Bobby McNeeley Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: As part of my responsibilities at Big Brown, I ensure that our plant complies with the Texas Commission on Environmental Quality's Coal Combustion Residuals handling and disposal regulations. These regulations are comprehensive and effective. As a whle, Luminant is in compliance with TCEQ' s CCR regulations, and we have never experienced a failure at any of
our facilities.215

I take my work very seriously, as d o my fellow co

- workers. We live in the communities where CCRs are stored and disposed. We owe it to our employees, our communities and the environment to manage CCRs safely and responsibly.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10837_DA

- 067

- 2 

### Organization 1 

### : Luminant 

### Commenter 1 : Usha Turner Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: On four separate occasions, most recently in 2000, EPA made a regulatory determination that concluded that Subtitle C of RCRA is not the appropriate regulatory regime for regulating CCRs and that regulation as non

- hazardous waste by the states is the appro priate option for ensuring the safe management of these materials while preserving reuse.

The State of Texas, through the Texas Commission on Environmental Quality (TCEQ), already has a comprehensive regulatory program for the storage and disposal of CCRs that oversees the design, construction, monitoring, reporting, and final closure of all CCR disposal facilities.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10842_DA

- 072

- 1 

### Organization 1 

### : NRG Energy, Inc. (NRG) 

### Commenter 1 : Jeffrey Davis Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.1 4.5 

### Comment Excerpt Text: NRG supports the development o f federal regulations for Coal Combustion Residuals (CCRs) under RCRA’s Subtitle D non

- hazardous waste program. We believe that a nonhazardous program is the best path forward because it will enable EPA to establish a program that protects
the environment while not impacting beneficial use or the economy.

NRG will provide written comments before the November 19th deadline. We support the comments made by the Texas Coal Combustion Products Coalition and the Utility Solid Waste Activities Group.

Texas has a strong solid waste disposal program and has successfully managed the disposal of21 6

CCRs under this program for decades. The program in Texas provides the regulatory oversight necessary to ensure that the management of CCRs is protective of human health and the environment. NRG requests that EPA work with the states and develop a program that recognizes the role of each state to develop their own regulatory programs to ensure compliance with the newly adopted federal criteria.

Response: The Agency acknowle dges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is refer red to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11003_CHA

- 038

- 1 

### Organization 1 

### : Tampa Electr ic Company (TECO) 

### Commenter 1 : Randy Melton Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 5.5 5.6 

### Comment Excerpt Text: At both coal plants, we have worked with the Florida Department of Environmental Protection (FDEP) to modernize the facility's existing CCR management units. These improvements have been required by the FDEP to ensure the protection of groundwater and surface water resources
in the vi cinity of these plants. Projects have included the capping and closure of inactive former disposal units, the lining of CCR impoundments and the redesign of handling systems to eliminate onsite storage of CCR products prior to beneficial reuse. The impound ments and landfills at our plants have been retrofitted with liner systems that meet the permeability and leachate control standards required by the federal Subtitle D regulations. Any future facilities will also be required to meet these standards. Our ex perience is provided as an example to illustrate the effectiveness of Florida's solid waste regulatory program in addressing the safety of CCR management units that are constructed within our state. Other Florida utilities have similar experience with this regulatory program, which is already authorized under federal Subtitle D.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.217



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11050_CHA

- 085

- 1 

### Organization 1 

### : American Rivers and Appalachian Voices, et al. 

### Commenter 1 : Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: [ATTACHMENT: see original attachment for report entitled, "The State of Coal Ash Regulation in North Carolina"]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11058_CHA

- 093

- 1 

### Organization 1 

### : North Carolina Conservation Network 

### Commenter 1 : Daniel H. Conrad Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.1 

### Comment Excerpt Text: The first item I would like to enter into the record is a document, endorsed by 17 diffe rent North Carolina environmental groups, detailing the need for coal combustion residue regulation in North Carolina. The second item I would like to enter into the record is a petition signed by over 1500 concerned North Carolina citizens urging that the EPA enact the more stringent of their two proposals, regulating coal combustion residues under Subtitle C of RCRA.

Briefly, I would like to try to paint a picture of why this regulation is both, necessary, and urgent, for the EPA to adopt, especially in North Carolina. North Carolina contains a disproportionate amount of coal ash impoundments in comparison to the rest of the country. The TVA disaster, despite occurring just across the border in neighboring Tennessee, served as wake up call to the
need to regulate this waste that has gone wholly unchecked on both a national and state level for too long. Industry and Investor Owned Utilities have been able to exert their force on the State level to prevent any meaningful regulation from occurring. The EPA is in the best position to fill this regulation gap, not only due to the lack of action by States, including North Carolina, but also because they already have the tools by which to do so.

For context RCRA’s stated objective is to “promote the protection of health and the environment and to conserve valuable material and energy resources by”

– among other things regulating hazardous waste management practices, generation, and disposal.

RCRA defines “hazardous waste” as: a solid waste, or combination of solid wastes, which because of its quantity, concentration, or218

physical, chemical, or infectious characteristics may

- (A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illnes s; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.

I would like to draw your attention to two specific words in the statute: “may” and “or.” The word “may” indicates, not that an outcome must occur, but rather only that it possibly could occur. The word “or” establishes that only one of the two listed criteria must be met. I would submit to you that coal combustion residues actually meet both.

Regarding criteria (A)

- the EPA itself has concluded that 49 “high hazard potential” coal ash surface impoundments exist in the United States, 12 in North Carolina alone. According to the EPA, high hazard potential “indicates that a failure wi ll probably cause loss of human life.” It is difficult to imagine a case where “loss of human life” would not qualify as an “increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness”

Regarding criteria (B)

- all 13 of the coal ash ponds in North Carolina that have conducted testing have been found to violate NC groundwater standards. In one case, arsenic concentrations were measured at 44 times the federal primary Maximum Contaminant Level (MCL). Again, it is
diff icult to imagine a scenario where arsenic concentrations found in contaminated groundwater at 44 times the federal MCL would not possibly “pose a substantial present or potential hazard to human health or the environment.”

Even were the terms “may” and “o r” changed in the statute to “will” and “and” it appears evident that coal combustion residues would still be encapsulated by the definition of hazardous waste. With that in mind, the North Carolina Conservation Network urges that at a minimum the EPA adop t the more stringent of its two proposals, regulating coal combustion residues under subtitle C of RCRA. Thank you for your time and the opportunity to speak before you today.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste manage ment plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11077_CHA

- 112

- 1 

### Organization 1 

### : South Carolina Coastal Conservation League 

### Commenter 1 : Nancy Cave Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:219



### Comment Excerpt Text: South Carolina has 14 coal generating plants producing over 2.1 million tons of ash annually. This ranks South Carolina 20th in the country for coal ash generation. The coal ash is placed in 22 ash ponds at 9 plants an d at least five landfills. According to the 2007 EPA Risk Assessment, 6 of these ponds and landfills are unlined and one is clay lined; of these sites 6 do not have a leachate system. All of the plants are sited on rivers and lakes; rivers that are sources of drinking water for communities up and down their length. In Georgetown County where I live the state owned utility, Santee Cooper operates the Winyah Power Station with 6 ash ponds near or on the Sampit River. In 2008 this plant had a wastewater leak. In Horry County Santee Cooper operates the Dolphus M. Grainger Power Station with 2 ash ponds on the Waccamaw River which supplies drinking water to the communities of Conway, Myrtle Beach, Surfside Beach and Georgetown to name a few. The Environmental Int egrity Project found that the Grainger ash ponds contaminated groundwater near the Waccamaw River with arsenic 91 times the state drinking water standard. Ruling coal ash to be a hazardous waste is a precautionary action that will protect the waters of Sou th Carolina and the nation, but more importantly a Subtitle C ruling will protect children and adults from toxins that according to EPA's own studies cause serious
health threats.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11179_CHI

- 010

- 1 

### Organization 1 

### : Illinois Environmental Protection Agency 

### Commenter 1 : Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: [Attachment: see original comment for copy of CCR Management fact sheet published by Illinois Environmental Protection Agency (September 2010)]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11186_CHI

- 017

- 3 

### Organization 1 

### : PINES Group 

### Commenter 1 : Paul Kysel Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The STATE Failed Its Duty To Protect Its Citizens220

In April 2000, the residents of the Town of Pines began to notice that their well

- sourced drinking water tasted unusual, so they reported it to the Indiana Department of Environmental Management (IDEM). I ncredibly, IDEM knew since the 1980's that the nearby coal ash dump

- Yard 520

- was leaking arsenic and other contaminants into a nearby creek.

In addition to contaminating the groundwater in Town of Pines, the Yard 520 Landfill also threatens protected s treams in the Indiana Dunes National Lakeshore. Contaminated groundwater from Yard 520 flows into Brown Ditch, a creek that flows along the edge of the landfill and eventually into the National Park before discharging into Lake Michigan two miles from the municipal water supply of Michigan City

- *the same municipal water source now providing water to the portion of town residents lucky enough to be offered municipal water to replace their
contaminated wells.

Downstream of the landfill, the creek carries high levels of boron and molybdenum. Indiana Dunes National Lakeshore is an especially important feeding and resting area for migrating land and water birds. Fish, birds and mammals can be harmed by exposure to the contaminants in coal
combustion waste.

According to EPA's comparison of upstream and downstream water samples from Brown Ditch, the downstream levels of boron and molybdenum are 116 and 90 times, respectively; the levels found upstream. Levels of boron and manganese exceed Indiana's minimum wat er quality
standards and also violate the anti

- degradation requirements of Indiana's water quality standards.

Degradation of water quality continues in Brown Ditch as it enters the Indiana Dunes National Lakeshore. Highly contaminated water also flows in to nearby Kintzel Ditch, a stream that has been designated by the Indiana Department o f Natural Resources as a rearing or imprinting area for native salmon, thus requiring protection. Brown Ditch also provides sanctuary at its lower reaches for migrating C oho and Chinook salmon and Steelhead trout.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the dis posal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is
also referred to U nit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans. The commenter is also referred to the preamble discussion in Unit XI on damage cases as well as the supporting
documenta tion on these cases which can be found in the RCRA docket supporting this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11194_CHI

- 025

- 4 

### Organization 1 

### : Great River Energy (GRE) 

### Commenter 1 : Richard Lancaster Commenter Type: Electric Utility Company Classification: Substantive Comment Category:221

Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.3 4.5 

### Comment Excerpt Text: GRE operates in states with well developed waste regulations and standards that parallel, or are more stringent than, Subtitle D. These states have beneficial use regulations or standards that
would not allow beneficial use if CCRs were determined to be hazardous. We also feel that those states with well developed programs should be allowed to continue to implement their Subtitle D compliant programs.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is
also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11287_CHI

- 065

- 1 

### Organization 1 

### : City Water Light & Power, Springfield, IL 

### Commenter 1 : Christine Zeman Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.3 7.1.2.5 

### Comment Excerpt Text: Illinois already adequately regulate coal combustio n byproducts, ash ponds and ash landfills, so as to protect against the incidents like those that gave rise to this regulatory proposal. Illinois has long regulated the integrity of ash structures, has strict groundwater standards and strictly limits
benef icial uses of coal combustion byproducts, so as to protect the environment, while encouraging its reuse. Further, the Illinois Pollution Control Board recently established strict closure requirements for specific ash ponds.

Response: The Agency acknowled ges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referr ed to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorpo rate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11296_P

- 002

- 3 

### Organization 1 

### : FirstEnergy 

### Commenter 1 : Ray Evans222

Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.1 10.5.2.3 

### Comment Excerpt Text: FirstEnergy supports U.S. EPA’s regulation of CCRs as non

- hazardous waste, which provides for consistent regulation across the nation. And we are committed t o the safe and environmentally sound reuse and disposal of this material.

With ash recycling and disposal facilities in Pennsylvania and Ohio, we work closely with highly trained professionals at federal and state regulatory agencies to ensure we meet all current standards. Our CCR recycling and disposal operations are routinely inspected by regulators and independent engineers, and daily by our staff. Additionally, we are in the process of siting a dry

storage facility to replace our only existing wet

- sto rage facility for CCRs.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11304_P

- 010

- 3 

### Organization 1 

### : Pennsylvania Coal Association (PCA) 

### Commenter 1 : Josie Gaskey Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.3 

### Comment Excerpt Text: Pennsylvania has some of the strictest and most effective regulations in the country for mining and management and disposal of coal combustion residuals and has an effective regulatory infrastructure in place to ensure the safe management of these materials. Currently, approximately 65 percent of CCR material is used in beneficial applications. Beneficial use of
CCRs i s an appropriate environmental solution as evidenced by EPA's support of CCRs in working with the power generation industry and the mining industry. We supports the regulation of CCRs that allows for continued beneficial uses for construction, manufacturin g and other purposes, as well as integration with the current Pennsylvania regulatory program.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationa le for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rul e. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.223



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11344_P

- 057

- 1 

### Organization 1 

### : Pennsylvania Department of Environmental Protection 

### Commenter 1 : Michael G. Forbeck Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.2.5 3.2.3 

### Comment Excerpt Text: Pennsylvania has residual waste regulations in place that govern the transportation, storage and disposal of CCR. These regulations and the implementation are based on sound scientific and engineering standards, and are similar to the Commonwealth's RCRA Subtitle D

- authorized municipal waste regulations and have been in effect since 1992. CCR landfills that have been designed and operated in accordance with these regulations have not resulted in pollution to groundwater, surface water or air, and they are the same residual waste regulations that were used as a template for EPA's existing Guide for Industrial Waste Management. According to EPA, that Guide was designed to protect groundwater, surface water and air resources under an
industrial Subtitle D

- like residual waste program. It is unclear why EPA is now considering regulating CCR under Subtitle C instead of the current Subtitle D

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

Pennsylvania's successful management of CCR including tracking of historical waste analysis data generated over the last 30 years, does not indicate in any way the need for the hazardous waste designation EPA is proposing.

Comparison of Subtitle C and D

According to EPA, the design and performance standards for the proposed regulations will likely be the same no matter what regulatory scheme is chosen. The major diff erences is that EPA asserts such a designation is necessary for it to retain and exercise appropriate enforcement authority and EPA cannot require States to permit landfills under Subtitle D.

Speaking to the latter, with the requirement for liners, groun dwater monitoring and other operational requirements, Pennsylvania regulations already require performance standards that exceed those outlined in the Subtitle C or D proposal. By current regulation, PA also requires facilities to be permitted or authorize d to manage CCR.

As to the need for EPA enforcement, Pennsylvania's Solid Waste Management Act authorizes State enforcement authority and PA DEP exercises that authority. Subtitle D requires State programs to have the necessary enforcement authority as p art of the federal approval process. This approach has been successful for Pennsylvania, as evidenced by the 96 % compliance rate. In addition, EPA already has broad RCRA 7003 enforcement authority to address Potential Substantial Threats or Endangerments to Human Health and the Environment as well as imminent hazards for releases of solid waste and, therefore, does not need the additional authority under Subtitle C.224

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discus sion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11351_P

- 064

- 2 

### Organization 1 

### : Center for Coalfield Justice (CCJ) 

### Commenter 1 : Raina Rippel Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 12.1.1.6 

### Comment Excerpt Text: We are specifically urging the US EPA to include minefilling projects under new proposed
federal rules

- designation "C." These mine reclamation projects amount to open dumping and should be federally regulate d. Listing coal ash under the Subtitle D as a non

- hazardous waste leaves the door open for inadequate enforcement, improper re

- use and insufficient monitoring of this demonstrably hazardous substance.

Within our state, the PA DEP regulations represent a l ack of state regulatory oversight and enforcement, because PA DEP advocates coal ash is "beneficial." Given the known or suspected health consequences of major coal ash repositories, and the probability that mine filling may leach into groundwater, such a "beneficial" use designation is downright dangerous, and serves only to pander to industry's need for re

- use or improper disposal of this toxic substance.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Unit VI of the preamble for a discussion of the applicability of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11368_P

- 087

- 3 

### Organization 1 

### : Greater Pittsburgh Chamber of Commerce 

### Commenter 1 : Jeff Rossi Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Pennsylvania already has an established and effective coal waste management program.

Response: The Agency acknowledges and appreciates the comment.225



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11391_P

- 114

- 3 

### Organization 1 

### : Clean Water Action 

### Commenter 1 : Tom Hoffman Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:

Pe nnsylvania is a resource rich state but our residents have and will continue to pay a high price for that. Streams that are no longer life sustaining. Air that sends kids to the hospital with asthma at 4 times the national rate. Flammable drinking water in people's homes.

Leaving things to the state is not an option here in Pennsylvania. We are facing severe budgetary shortfalls and our DEP has been slashed to the bone. Our communities are facing serious environmental threats from the booming natural gas d rilling industry. Our Department of Environmental Protection does not have the necessary resources to protect us from those dangers let alone do what is necessary to regulate coal ash. Clean Water Action supports strong federal regulations on coal ash.

Res ponse: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11402_P

- 126

- 1 

### Organization 1 

### : Civil & Environmental Consultants, Inc. 

### Commenter 1 : Angelo L. Masullo Commenter Type: Other Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: In the state of PA, coal ash is considered to be a residual waste and its disposal is currently governed by regulations that control the location, size, design, construction, operation, and
closure of the landfills.226

Landfill siting regulations dictate where landfills can go, how close they can be to residences, streams and wetlands, floodplains, adjacent properties, and water supplies. Th e days of dumping waste in any convenient area close to the source are long gone.

Lined landfills for coal ash disposal, like those used in P A and the other states my company operates in, are not dumps

- they are sophisticated facilities constructed with engineered components, such as multi

- layer lining systems designed to prevent contaminants from leaving the landfill, and perimeter groundwater monitoring well networks that act as environmental
sentinels.

The level of regulatory involvement with these t ypes of facilities, from conception to closure, is significant. For a facility to be permitted and constructed, the regulatory agency reviews the permit application, coordinates the public involvement process, approves the permit (maybe), reviews and appro ves construction certification reports, oversees operation and environmental monitoring, ensures that financial assurance is in place, and monitors closure when the time

comes.

These facilities are protective of the environment and are fully capable of pr eventing groundwater contamination below and around the disposal facility. My professional opinion is that the level of environmental protection provided by lined Subtitle D facilities (such as PA Class I residual landfills) is almost the same as that prov ided by Subtitle C landfills.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is
also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11422_P

- 153

- 1 

### Organization 1 

### : Allegheny Energy, Inc. 

### Commenter 1 : David C. Cannon, Jr. Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.3 3.1.2 

### Comment Excerpt Text: Allegheny strongly recommends EPA regulate CCR under the proposed Subtit le D prime scenario. Allegheny does not believe coal combustion residuals should be regulated as "special"
or hazardous waste.

We have been successfully managing CCRs under the Pennsylvania Residual Waste Regulations and the West Virginia Solid Waste Regu lations for many years. These two state programs, either227

of which could serve as a model for a federal program, include all the elements contemplated by EPA's proposed Subtitle D rule.

Response: The Agency acknowledges and appreciates the comment. The c ommenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a pre sentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid was te management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11423_P

- 154

- 1 

### Organization 1 

### : PPL Corporation 

### Commenter 1 : Craig Shamory Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.3 10.1.1 

### Comment Excerpt Text: PPL owns or controls nearly 12,000 megawatts of merchant power generation in 5 states, including 4 coal plants in Pennsylvania and Montana. Annually, we generate about 3 million tons
of coal combustion residuals

- CCRs

- and of that total we beneficially use about 2 million tons. CCRs from our Pennsylvania plants have been regulated effectively since 1992 as a non

hazardous waste under Pennsylvania's Residual Waste Regulations. Furthermor e, Pennsylvania and Montana recognize that properly implemented beneficial uses are an environmentally responsible option for managing these materials.

A federal subtitle D, non

- hazardous waste regulation, along the lines of Pennsylvania's successful prog ram, would support beneficial use of this large volume mineral resource. Conversely, federal subtitle C hazardous waste regulation would severely limit

- and most likely
eliminate

- beneficial uses, including cement industry applications and mine reclamati on. Beneficial uses create thousands of jobs and provide their own significant environmental
benefits.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.228



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11470_L

- 047

- 2 

### Organization 1 

### : Commenter 1 : Rick Clewett Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.2.1 4.1.2 8.9 3.1.1 

### Comment Excerpt Text: Proposal D "would not require permits, nor could EPA enforce the requirements. Instead, states or citizens could enforce the requirements under RCRA citizen suit authority; the states could also enforce any state regulation under their independent state en forcement authority." Leaving the burden of initiating enforcement actions to state agencies and citizens would be an abrogation of EPA's duty to protect the environment and the public. I will use the findings of a just

conducted study by the Sierra Club, Kentucky Waterways Alliance and Global Environmental to make this point.

The study, entitled Slow Motion Spills: Coal Combustion Waste and Water in Kentucky, found that while there are 44 coal ash ponds in Kentucky, anything like adequate information was available for only 8 sites. "Even for those 8 sites, Kentucky did not have monitoring records for all CCW contaminants. In some cases, the Division had even allowed sites whose early records showed dangerous levels of toxic heavy metals to stop monitoring for those pollutants."

Despite this disturbing failure of the state to collect and archive adequate data on water quality near coal ash facilities, the study was able to reach three resounding conclusions:

1. Existing data point to groundwater contami nation caused by coal combustion waste beneath every plant ... studied. For many sites, contamination is intensifying as CCW continues to build up in ponds and landfills. 2. Kentucky's regulatory program is not properly addressing this threat; instead, it 's getting weaker. Even as evidence of contamination mounted in state files, Kentucky reduced monitoring requirements, failed to commence enforcement action, and continued to permit new ponds and landfills without proper controls. 3. Kentucky is not compr ehensively tracking where CCW contamination is going, putting offsite drinking water and communities at risk and allowing CCW discharges to enter our rivers and streams. Because heavy metals found in CCW waste are toxic in extremely low concentrations,
and many of these metals accumulate over time, the combination of information gaps and leaky CCW sites is very dangerous.

I am sure the level of regulation of coal combustion waste is as bad or worse in some other states. I choose to highlight this study of Kentucky's failure to monitor its numerous coal ash ponds and dry fills adequately, let alone to protect its citizens from the damage being done to water quality by leaks from these sites, because the study is current and credible, based on the
state's own records, and because I, my family, and many of my friends live here. It matters to us if Cane Run is endangering the wellbeing of people living in some neighborhoods in Louisville or if EKPC's Spurlock facility "discharges to three receiving streams that flow into the Ohio229

River" and that it has "contaminated underlying groundwater since at least 2005 with arsenic, iron, sulfate and IDS exceeding MCLs and SMCLs," with arsenic reaching "16 times the MCL in
an off

- site well 750 feet northeast of the landfill "

This last statistic comes from a just

- release study done by the Environmental Integrity Project, Earthjustice, and the Sierra Club and entitled" IN HARM'S WAY: Lack Of Federal Coal Ash Regulations Endangers Americans And Their Environmen). This title s ays it all: strong federal regulation of coal combustion waste is essential to the wellbeing of the American people, and it is EPA's Subtitle C Proposal that will provide that regulation. Please put forward a strong,
enforceable rule.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11504_L

- 085

- 3 

### Organization 1 

### : Greenpeace USA 

### Commenter 1 : Robert Gardner Commenter Type: Advocacy Group Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Here, in Kentucky, there are at least three leaking impoundments. There are six high hazard impoundments in Kentucky: three at Ghent (Ghent, KY), two at EW Brown (Harrodsburg, K Y) and one at Big Sandy (Louisa, KY). Within the city of Louisville, there is a High Hazard impoundment in its city limits at Cane Creek that LG&E is trying to expand to allow 5.7 million cubic yards of CCW on site. This places Kentucky third behind North Carolina (12) and Arizona (9) in the number of ‘High Hazard’ ash impoundments nationwide. Specifically, a recent report has highlighted three leaking impoundments:

East Kentucky Power Cooperative’s Spurlock Power Station in Maysville, Louisville Gas &
Ele ctric’s Mill Creek Station in Jefferson County and the Tennessee Valley Authority’s Shawnee Fossil Plant near Paducah, Kentucky.

Response: The Agency acknowledges and appreciates the comment.230



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11556_L

- 004

- 2 

### Organization 1 

### : Commenter 1 : Steve Wilkins Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.2.3 

### Comment Excerpt Text: Kentucky has already demonstrated that it canno t be entrusted to oversee the handling of coal ash. Your own agency has been critical of the Kentucky Department for Environmental Protection and its Division of Water. Kentucky has been very protective of any potential threat to the coal industry and that protection follows coal throughout its life cycle. Coal

- the industry

- is coddled while miners, mountains, waterways, communities, whole regions are sacrificed in pursuit of profits. Without federal oversight I fear that Kentucky will do for coal ash wh at it has done with 402 mining permits, favoring the coal life cycle over the environment it is supposed to protect. Do not allow Kentucky primacy in the oversight of coal ash.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentatio n and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11557_L

- 005

- 1 

### Organization 1 

### : E.ON U.S. LLC 

### Commenter 1 : Michael Winkler Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: In Kentucky, we have had regulations governing CCR landfills and benefic ial reuse since 1992 and impoundment safety regulations for an even longer period. LG&E and KU have CCR management protocols in place that ensure regulatory compliance and protection of public health and the environment. The Kentucky regulatory program wor ks very well. There has never been a significant spill from any LG&E or KU CCR facility or any other CCR facility in Kentucky. No LG&E or KU CCR facility has ever posed a problem for local water supplies.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.231

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11585_L

- 124

- 1 

### Organization 1 

### : Cumberland Chapter of Sierra Club 

### Commenter 1 : Hank Graddy and Betsy Bennett Commenter Type: Advocacy Group Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The Situation in Kentucky: Slow Motion Spills:

Residents of Kentucky could suffer the same fate as the families of Kingston. EPA has identified six CCW ponds in the Commonweal th that would create a high hazard to human life if they
failed

- impoundments in Harrodsburg, Ghent and Louisville. But catastrophic failure is not the only problem because leaking ponds and landfills across the state cause contamination of groundwater an d waterways.

Earlier this year, the Sierra Club, Kentucky Waterways Alliance and Global Environmental, LLC published a report of coal combustion waste facilities in Kentucky titled,. Slow Motion Spills.: Coal combustion Waste and Water in Kentucky. Craig Segal and Mark Quarles, P.G. were the principal authors. The report can be found at:

- http://kentucky.sierraclub.org/resources/Environmental Research/Coal Combustion Waste and Water In KY 042110.pdf

According to "Slow Motion Spills", "Every site in K entucky for which groundwater data was available appears to be leaking".

Kentucky has 44 coal ash ponds, second most in the nation (and many CCW landfills and dumpsites), which are scarcely regulated by the state environmental agency. Of this number,

mon itoring information exists for only eight sites and not all CCW pollutants are monitored.232

Based on actual groundwater data from these eight sites, all are contaminated: Cane Run Station in Louisville, East Bend Station near Rabbit Hash, R.D. Green Statio n near Robards, Paradise Station near Drakesboro, Trimble County Station just upstream from Louisville, Shawnee Station near Paducah, Spurlock Station near Maysville, and D.B. Wilson Station near
Centertown.

"Each of these plants is, at a minimum, a pote ntial damage case. Because Kentucky does not have monitoring data tracking how far pollutants have migrated, and sometimes did not have data for pollutants covered by primary MCLs, it's difficult to determine whether the plants are proven damage cases. Fur ther, because these sites often have massive waste complexes, covering acres and containing both ponds and landfills, and companies often did not submit detailed groundwater diagrams or surface maps, it is sometimes hard to tell which component of the

wast e facility is causing pollution. Nonetheless, the available data do point to onsite CCW contamination and the degree of contamination strongly suggests that pollutants are making their way off site." Report, page 4.

The authors of the report have conclud ed that the state's regulatory program is not properly addressing the CCW threat and, in fact, it is getting weaker. As evidence of contamination has grown, the state agency has reduced its monitoring requirements, failed to commence enforcement actions, a nd continued to permit new ponds and landfills with inadequate controls.

Specifically, the report states

- and we agree:

"Is the past prologue for Kentucky? Kentucky has 44 ash ponds, the second most in the nation after Indiana, [1] and dozens of coal c ombustion waste landfills and dumpsites and it barely regulates these sites. The Sierra Club and Kentucky Waterways Alliance, working with Global Environmental, LLC, launched an investigation into the commonwealth's own records to find out
what coal combus tion waste is doing to Kentucky's water. We found grim news. Although records are spotty, every one of the sites for which data were available has groundwater contamination consistent with coal combustion waste and, in many instances, this contamination
is getting worse."

Based upon our review of these sites, we drew three primary conclusions:

1. Existing data point to groundwater contamination caused by coal combustion waste beneath every plant we studied. For many sites, contamination is intensifying as CCW continues to build up in ponds and landfills.

2. Kentucky's regulatory program is not properly addressing this •threat; instead, it's getting weaker. Even as evidence of contamination mounted in state files, Kentucky reduced monitoring requirement s, failed to commence enforcement action, and continued to permit new ponds and landfills without proper controls.

3. Kentucky is not comprehensively tracking where CCW contamination is going, putting off

site drinking water and communities at risk and a llowing CCW discharges to enter our rivers and233

streams. Because heavy metals found in CCW waste are toxic in extremely low concentrations, and many of these metals accumulate over time, the combination of information gaps and leaky CCW sites is very danger ous.

This report provided documentation of current water quality contamination, including:

- Total dissolved solids (TDS), chlorides, iron, and/or sulfate parameter concentrations indicate groundwater contamination at every site. TDS, chlorides, iron, and sulfates are known to be good indicators of coal combustion wastes in groundwater and surface water.

- Every site that tested for heavy metals and reported the data to the Division of Waste Management had metal concentrations that exceeded state and EPA drinking water standards (e.g. Duke Energy East Bend; EKPC Spurlock; TVA Shawnee; Big Rivers D.B. Wilson; Big Rivers R.D. Green). In some cases, metals contamination is more than a hundred times over drinking water standards.

- CCW ponds are clearly leaking into the groundwater beneath them, as every pond for which data were available was associated with contamination (e.g. LG&E Trimble Station; Duke Energy East Bend).

- Groundwater contamination problems are becoming more acute with time at many si tes, presumably due to long

- term leakage (e.g., TVA Paradise, TVA Shawnee, Big Rivers D.B. Wilson).

The report documented the failure of the Kentucky State Government agencies to address these problems under the heading of failed oversight

- the specific area that EPA has identified as of particular concern:

- Ash ponds are not monitored statewide even though data clearly indicate leakage resulting in contamination of groundwater (e.g. LG&E Trimble Station; Duke Energy East Bend). Ash ponds
are extensiv e in acreage (up to %

- mile long) and are located adjacent to major rivers and small tributary streams (e.g. EKPC Spurlock Station; LG&E Trimble Station).

- Groundwater monitoring programs dating to the 1980s and mid

- 1990s were more stringent
because meta ls testing was required. The Division of Waste Management discontinued metals testing in 1997 I 1998, even though contamination above regulatory standards existed dating to the 1980s (e.g. Duke Energy East Bend, Big Rivers D.B. Wilson and R.D. Green Plants ).

- No surface water, fish and aquatic life, or sediment monitoring is required even where contaminated groundwater is expected to discharge to a receiving stream (e.g. LG&E Trimble Station; LG&E Cane Run).

- Statistical analyses of groundwater data a re not always required and even when required, are not always performed by the owner (e.g. LG&E Trimble Plant; EKPC Spurlock).

Finally, the report documented that the pollution problems are continuing.234

- Unlined disposal sites that the Division of Wast e Management continues to approve are typically located adjacent to receiving streams where shallow groundwater is expected.

- Many ash ponds are not lined and expansions of unlined ponds continue

– even though groundwater data at expansion sites indicat e contamination of groundwater (e.g. LG&E Trimble).

- Recent unlined, horizontal expansions of permit

- by

- rule landfills continue even though there is clear evidence of leakage resulting in groundwater contamination, and/or the "horizontal expansions" are not contiguous on power plant properties (e.g., TVA Shawnee; Big Rivers D.B. Wilson Plant; LG&E Cane Run Station).

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is prom ulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final B evill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs b ecause the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.

Finally, the commenter is referred to the damage cases discussion in Unit XI of the pream ble as well as the supporting documentation that can be found in the RCRA docket supporting this
rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11585_L

- 124

- 3 

### Organization 1 

### : Cumberland Chapter of Sierra Club 

### Commenter 1 : Hank Graddy and Betsy Bennett Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Additional Detail On the Kentucky Situation235

We are providing additional details that support the conclusion that the s tate "program" within the Commonwealth of Kentucky is woefully inadequate to do the job of protecting the
environment from the risks of coal combustion waste. These additional details are consistent with the conclusions of the above report, and require tha t EPA recognize that the option of continuing business as usual with the subtitle D alternative is an imprudent and irresponsible option

- analogous to the failure to learn the lessons of the Exxon Valdez oil spill and the logical reality of such failure a s we experienced this year in the Gulf of Mexico.

Our additional detail will focus on the coal combustion waste facilities at the Trimble County Generating Station, subject to the KPDES Permit No. KY0041917

We have attached our November 5, 2009 comment s to the Kentucky Division of Water when this permit was up for renewal last year. As indicated, our comments were submitted with additional comments from the Han. Craig Segall and Mark Quarles, P.G., principal authors of Slow Motion Spills, discussed abov e.

We raised numerous concerns about the adequacy of that KPDES permit at a time when LG&E/KU had already filed applications to expand the capacity of the coal waste handling facilities at this location. We complained that such expansion was an increased loading from a point source, triggering the CWA antidegradation requirements, and that the permit failed to adequately protect the environment and violated the Clean Water Act.

We have also attached our December 1, 2009 motion for the Kentucky Waterways Alliance to intervene in the proceedings before the Kentucky Public Service Commission where LG&E/KU sought certificates of public convenience and need ("CPCN") to expand a number of coal;
combustion waste facilities

- including the expansion of the coal ash lagoon at Trimble. LG&E/KU sought to impose the cost of these facilities on the ratepayers as an "environmental surcharge."

The application to intervene was denied. The PSC refused to consider the environmental risks and consequences of these proposa ls

- deferring to the Energy and Environment Cabinet.

We have attached as Exhibit #3 the Division of Water April 1, 2010 Response to comments. These responses deserve careful scrutiny because they establish that the current state programs to regulate coa l combustion waste are clearly inadequate.

Comment 3: In their respective comment letters, the Sierra Club and Globally Green each questioned the lack of Groundwater monitoring for the BAP in the draft permit!

Response 3: Prevention of groundwater cont amination is covered in a Groundwater Protection Plan and is not within the scope of the KPDES permitting program, Also, the BAP is not currently permitted to discharge to the Ohio River or any other receiving stream. A discharge
from the BAP would constit ute non

- compliance with the conditions of the permit.

Comment 4: The Sierra Club stated that the KPDES permit should be modified to consider the risk of pond failure.236

Response 4: The KPDES program does not have the authority to limit potential discharg es due to failure. Management and maintenance of the facility and treatment units is the responsibility of the permittee.

Comment 5: KWA requested a copy of the Emergency Management Plan for the permittee's impoundments.

Response 5: Part IV of the perm it contains all requirements related to the mandatory Best Management Practices (BMP) Plan.

Comment 12: Concerned was expressed by multiple individuals that the KPDES program to specify design or construction requirements for the BAP of Gypsum Storage Ba sin.

Response 12: It is not within the purview of the KPDES program to specify design or construction requirements for the BAP of Gypsum Storage Basin.

Comment 21:The Disposal method for the coal combustion wastes was objected to by Globally
Green.

R esponse 21: It is not within the purview of the KPDES permitting program to regulate the disposal method of wastes or the expansion of the BAP.

We have also attached Exhibit #4 which provides more detail about the deficiencies of the Kentucky regulatory program. Exhibit #4 is the petition that Sierra Club filed to challenge the Trimble KPDES permit It provides a succinct and clear condemnation of the inadequate regulatory performance of the Kentucky Energy and Environment Cabinet

Response: The Agency ac knowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11620_K

- 034

- 1 

### Organization 1 

### : Commenter 1 : William R. Wilson Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.2 

### Comment Excerpt Text: The State of Tennessee has no effective regulations in place to protect our communities from the danger of Coal Ash. The evidence of this can be seen in the Kingston Coal Ash Spill.

SACE has rele ased a report documenting the fact that Tennessee has no laws designed specifically to address the dangers of coal ash.

Because of this lack of state regulation, Subtitle D is not an acceptable option.237

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11624_K

- 038

- 1 

### Organization 1 

### : Progress Energy, Inc. 

### Commenter 1 : Rob Reynolds Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.3 

### Comment Excerpt Text: Progress Energy supports the development of federal regulations for CCRs under ("RCRA") Subtitle D "Prime". The development of rules under this approach will establish a federal

s tandard for all CCR facilities to meet. Many states already have effective solid waste statutes and regulatory programs that would provide an additional layer of regulatory oversight for management, reuse, and disposal of CCRs.

Response: The Agency ackno wledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is re ferred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to

inc orporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant

commen ts that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the238

technical requirements, EPA has responded to comments relating to the accurac y of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the fi nal rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11724_K

- 148

- 1 

### Organization 1 

### : Commenter 1 : Linda Smithyman Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 6.1.1 

### Comment Excerpt Text: In 2000, the EPA deemed coal ash a nonhazardous material, and thus it did not fall under federal inspections. Inspections are left up to state regulators. Since 2000, improved pollution controls keep more and mo re toxins from leaving smokestack, thus increasing the amount of toxins in the coal ash, classifying the coal ash as hazardous would almost certainly affect how the waste is recycled.

But environmentalists have concerns. Tests have shown that coal ash con tains dangerous toxins such as arsenic, lead, chromium, manganese and barium, which have been linked to serious health conditions such as cancer, liver damage and neurological complications.

The results of an EPA study data collection, released sept 2009, indicate that the problem of coal ash is widespread. Ash ponds are located in 35 states and the majority of dump sites are over
three decades old.

There are many toxins in coal ash known to be hazardous to human health and to cause cancer at certain expo sure levels. According to the EPA report, many of the ash ponds in KY were not designed or constructed by engineers, bringing into question whether or not the ash is properly contained at these sites. Several of Kentucky Utilities’ and LG&E’s ponds fall in to this category.

These ash disposal sites also leak their toxic cargo into groundwater, or discharge it directly into rivers, creeks and lakes as runoff or through permitted outfalls. Until the EPA takes action, there are no federal rules setting standar ds for these disposal of ash, or limiting the discharge of toxic ash leachate into our waterways.”

Someone

- I believe what they said

- told me that folks driving into the facility TOLD TVA that there was a leak time and time again. Yet, it seemed that no thing was done about it ... What happened? How many homes were destroyed? How much land was contaminated? How many people had to get drinking water for their daily needs? If the Kingston spill had actually happened upriver from Knoxville and affected OUR d aily water supply there would have been an even greater uproar about the cleanup and the future of coal ash plants.239

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11785_P

- 146

- 1 

### Organization 1 

### : Commenter 1 : Lisa Graves

- Marcucci Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 6.1.1 

### Comment Excerpt Text: Busloads of people living near coal ash impoundments in Pennsylvania, Ohio and West Virginia are making their way to this hearing. They will be sharing what it's really like

- not the mythical

vers ions told by companies and the PA DEP.

Their personal stories represent something far more valuable than money

- human health.

Industry worries about a stigma on their product

- these people worry about their very lives.

The EPA risk assessment details e xtremely high cancer risks to communities living near unlined coal ash impoundments

- particularly those on groundwater, like Greene Township, PA home to Little Blue Run ash impoundment.

There is nothing little about Little Blue

- it is one of the nation's largest unlined impoundments. It stretches from PA into Chester, WV and faces East Liverpool, OH.

PA DEP files reveal contamination problems existed at Little Blue, for over a decade; however, PA DEP has not issued any fines, corrective actions, or remed iation directives. Even with contamination problems, PA DEP authorized an expansion in 2005 under a Demonstration or "experimental" status, offering even less protection to communities.240

Currently, First Energy is seeking more land for ash disposal. Reside nts have been asked to sign company waivers, removing the state

- required buffer, protection setbacks to private wells and residences. (See exhibit A)

PA DEP and First Energy officials deny arsenic problems at Little Blue; however, documents
show elevated arsenic in ten monitoring wells. Shockingly, the public was never told, until we obtained company documents from state files. (See exhibit B)

22 private wells have been contaminated with a variety of pollutants: some with arsenic. PA DEP is doing nothing to contain the toxic plume, protect drinking water or the humans consuming it. (See exhibit C)

We believe cancer rates among folks living near Little Blue are reflected by cancer rates
modeled in the US EPA's risk assessment.

Little Blue represents a rea l

- world example of why federal rules are needed. The PA DEP has become an advocate for industry's toxic waste

- they are not holding First Energy or other companies accountable for problems at ash impoundments.

Industry and the PA DEP contend there is no e vidence of ground or surface water contamination from coal ash. PA DEP public files prove otherwise. Industry and PA DEP are deliberately ignoring facts and misleading you and the public: coal ash has contaminated water sources. Something needs to be done to protect people who are literally in harm's way.

Thank you.

Lisa Graves Marcucci

[See original attachment for letter from Pennsylvania Department of Environmental Protection to FirstEnergy Generation Corporation dated February 16, 2010; letter from Fi rstEnergy Generation Corporation to Pennsylvania Department of Environmental Protection dated February 24, 2010; waiver and consent for placement of residual waste and operation of access roads; In Harm’s Way report]

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Un it VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant
comments that rela te to topics that are otherwise relevant to the final subtitle D regulation. For241

example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the fac ts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s p rovisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0183

- 1 

### Organization 1 

### : Colorado Department of Public Health and Environment 

### Commenter 1 : Joe Schieffelin Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Colorado has an intense interest in EPA's upcoming decision on how coal combustion residuals (CCRs) will be regulated. Because it is such an important decision with huge programmatic, cost, and logisti cal implications, it is crucial that EPA have accurate information at their disposal. Unfortunately, some of the information submitted to EPA is not accurate. Specifically, we would like to respond to an incredibly inaccurate portrayal of Colorado's solid waste regulatory program presented by Earth justice, and others, in comments submitted to EPA on November 10, 2010 (Docket ID No. EPA

- HQ

- RCRA

- 2011

- 0392

- 0119).

In their comments, Earthjustice, et al, (EJ comments) purport to have evaluated 37 state solid waste programs and whether these state programs "have imposed requirements to address: I) ground water monitoring, 2) unit liners, 3) leachate collection systems, 4) financial assurance, 5) post

- closure monitoring and maintenance, and 6) extent of permitti ng requirements." Colorado
was one of the 37 states evaluated.

As you will see from the following detailed responses, Earth justice, et al, has completely and irresponsibly mischaracterized our solid waste regulatory program. Of the 26 specific regulator y analyses performed by Earthjustice, et al, only 2 were completely correct with respect to our program (both giving Colorado credit for not allowing CCR landfills and impoundments to be built into ground water) and 2 others were technically correct, but i mplied inadequacies when none are present. The remaining 22 analyses accused Colorado of programmatic shortcomings, but are completely wrong. This degree of incorrect information is either the result of an incompetent evaluation or fabrication of results t hat confirm a pre

- existing agenda. Either way,
the follow

- on concerns that Earthjustice, et al, present in their comments, including the overestimation of state ability to control CCRs in the environment, and the failure of states to adequately regulate CC Rs, are unfounded.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfil ls and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the242

technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA h as responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not re lying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0183

- 24 

### Organization 1 

### : Colorado Department of Public Health and Environment 

### Commenter 1 : Joe Schieffelin Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: These same responses we provide above can also be used to debunk claims about Colorado's regulatory program that are presented by Earth justice and others in the report, "State of Failure: How States Fail to Protect Our Health and Drinking Water from Toxic Coal Ash." Though not as lengthy, the State of Failure report is equally as biased and inaccurate in its portrayal of state CCR regulatory programs as the EJ comments.

Response: The Agency acknowledges and appreciates the comment. The commenter is
ref erred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and d iscussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management p lans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to th e final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.243



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0183

- 25 

### Organization 1 

### : Colorado Department of Public Health and Environment 

### Commenter 1 : Joe Schieffelin Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Commen t Excerpt Text: In conclusion, it is clear that Earthjustice, et al, has grossly mischaracterized our Subtitle D regulatory control of CCRs. In fact, Colorado has and implements extensive Subtitle D controls over CCR landfills and surface impoundments. In our conversations with other states, it is also clear that the EJ comments substantially mischaracterize their programs as well. We conclude, therefore, that the accusation of inadequate and/or poorly implemented state Subtitle D regulatory programs is bas eless and is not a legitimate reason for EPA to regulate CCRs as hazardous waste. We hope that EPA has already come to that same conclusion.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of t he preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical s tandards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulati on. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0191

- 3 

### Organization 1 

### : M ichigan Department of Environmental Quality (MDEQ) 

### Commenter 1 : Liane Shekter Smith Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.1.3 7.1.2.5 

### Comment Excerpt Text:244

U.S. EPA is noticing the comments on the 2010 proposed rule, submitted by Earthjustice, Environmental Integrity project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, and Physicians f or Social Responsibility, addressing gaps in state government regulatory programs applicable to the management of CCRs.

The MDEQ disagrees with the report's assessment of Michigan's regulatory program as it applies to the management of CCRs. The MDEQ tak es issue with the contention in the report that individual states take no action with regard to CCR disposal sites, when, in fact, the State of Michigan has required the closure of numerous unlined CCR disposal sites, and has required
corrective action to address groundwater and/or surface water impacts. Michigan identified eight proven damage cases in the comments submitted to the docket on November 20, 2010. Michigan also objects to the characterization of the regulatory program in the State, as described in the
above referenced document.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is
also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively t o that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requi rements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those

programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0191

- 7 

### Organization 1 

### : Michigan Department of Environmental Quality (MDEQ) 

### Commenter 1 : Liane Shekter Smith Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: A complete description of Michigan's CCR Program is available in our November 2010
comments to Docket ID No. EPA

- HQ

- RCRA 20 09

- 0640.245

Michigan believes its current CCR regulations are adequate and protective of the environment.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0196

- 1 

### Organization 1 

### : Alaska Department of Environmental Conservation (ADEC) 

### Commenter 1 : Kristin Ryan Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.4.2 

### Comment Excerpt Text:
In accordance with section V II, paragraph 1 of the NODA, the ADEC is providing comments on a report regarding purported gaps in state regulatory programs for CCRs that was submitted to the EPA by Earthjustice, Environmental Integrity Project, Sierra Club, Natural Resources
Defense Co uncil, Southern Alliance for Clean Energy, Southern Environmental Law Center, and Physicians for Social Responsibility (document no. EPA

- HQ

- RCRA

- 2009

- 0640

- 6315).

The ADEC has two primary concerns with the subject report. Our first concern is that in Tabl e 28 (page 48) Alaska is erroneously listed among the states that are NOT expected to implement new Subtitle D standards for CCR facilities. We find this interesting because Alaska intends to revise its approved Subtitle D program as needed to comply with any revisions to 40 CFR 258. (Please note that Alaska was the first state in Region 10 to revise its Subtitle D program to adopt the Research, Development, and Design regulations of 40 CFR 258.4.) We understand that Table 28 is pulled from another source; but verifying Alaska's intent required nothing more than a telephone call to the ADEC. This step should have been considered necessary because Alaska is not included in the analysis of state programs represented by Tables 1 through 27 in the report,
nor is Alaska mentioned in the purported source document on which Table 28 is based. The ADEC is very concerned over the fact that the authors are willing to report as fact something that they have neither researched nor attempted to verify. Such action raises s ignificant doubts about the accuracy and validity of the entire report.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating thi s subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the co mmenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D r egulation. For246

example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded t o many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0196

- 2 

### Organiza tion 1 

### : Alaska Department of Environmental Conservation (ADEC) 

### Commenter 1 : Kristin Ryan Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The second concern the ADEC has with this report is the number of significant issues that the report ignores. In making their general claim that state regulatory programs are "grossly deficient" (page 3), the authors ignore the fact that the EPA has never established a minimum national standard for the management of CCRs by which adequacy can be measured (see 75 FR 35137). The authors also ignore the fact that in the absence of a national standard, the various states have developed regulatory programs that are applicable to the specific conditions and situations within each state; programs in which decisions are based on facts and available data. To judge such regulatory programs as "woefully inadequate" (page 37) suggests that the preferred alternative is a program that ignores facts and available data and simply renders arbitrary decisions that are divorced from the reality of the situation.

It is somewhat ironic, then, that the authors' stated reason for making the proposed Subtitle C
criteria the minimu m national standard is because it "clearly is the only option consistent with the best available science" (page 2). In making that claim, the authors ignore the fact that the proposed Subtitle D option includes the very same liner and leachate collection r equirements as the Subtitle C option (see 75 FR 35202). By ignoring these and other facts and declaring that "EPA unequivocally must regulate coal ash under Subtitle C of RCRA in order to protect human health and the environment" (page 7), the authors reve al their true motivation is more the desire to regulate coal ash as a hazardous waste than it is the desire to establish an effective and achievable national minimum standard for managing CCRs. Taken together, these issues provide ample reason for question ing the accuracy of the reporting and the legitimacy of the data presented. In light of the problems noted, it is the opinion of the ADEC that the EPA should not use the information in the subject report in developing the final rule for management of CCRs.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface imp oundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is247

also referred to Unit IX of the preamble for a discussion o n how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has r esponded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to co mments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state pro grams to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0197

- 2 

### Organization 1 

### : Oklahoma Department of Environmental Quality (DEQ) 

### Commenter 1 : Scott Thompson Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: A third report open for comment by this NODA, submitted by EarthJustice, on November 19, 2010 (Docket ID EPA

- HQ

- RCRA

- 2009

- 0640

- 6315, hereafter referred to as "the Report "), concludes that only federal regulation of CCR under Subtitle C of RCRA will be protective of human health and the environment because of alleged inadequacies in state CCR management programs [Footnote 1: It appears much of the information used by the a uthors to identify alleged inadequacies in state CCR management programs is derived from Appendix E of EPA's 2010 Regulatory Impact Analysis (see Docket ID EPA

- HQ

- RCRA

- 2009

- 0640

- 0003). According to the Regulatory Impact Analysis, DEQ's 1994 regulations wer e used by EPA to assess the status of CCR regulation in Oklahoma. Our regulations have been modified several times over the following years, with the current regulations for CCR landfills becoming effective in 2003.]. The DEQ respectfully disagrees with th is assertion as our regulations for these sites are, in most areas, nearly identical to the Subtitle C and Subtitle D options presented in EPA's proposed rulemaking for CCR management [Footnote 2: The proposed rule was published June 21, 2010
at 75 FR 3512 8

- 35264] and in some cases are more strict. As such, DEQ is providing comments only in regards to the alleged deficiencies in Oklahoma's regulations for CCR landfills as identified in Tables 1 through 27 and Table 29 of the Report.

Response: The Agency a cknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter i s referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.248

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the a ccuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0197

- 4 

### Organization 1 

### : Oklahoma Department of Environmental Quality (DEQ) 

### Commenter 1 : Scott Thompson Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Table 1. Overview of Mandatory State Requirements for CCR Disposal [from Docket ID EPA

HQ

- RCRA

- 2009

- 0640

- 6315, hereafter referred to as "the Report"] The table notes that no state regulatory programs have retroactive liner, leachate collection, or groundwater separation requirements, suggesting these are deficiencies in state regulatory programs for CCR landfills. The DEQ believes this "finding," presented without proper context, is misleading . Until the proposed CCR rule, EPA had never, to our knowledge, proposed a rule that retroactively required composite liners, leachate collection systems, or groundwater separation for any type of land disposal unit. EPA's proposed rule only requires exist ing CCR surface impoundments to be retroactively fit with liners and leachate collection systems, and did not include any retroactive requirements for separation from groundwater. There are no retroactive requirements in the proposed rule for CCR landfills

.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0197

- 7 

### Organization 1 

### : Oklahoma Department of Environmental Quality (DEQ) 

### Commenter 1 : Scott Thompson Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Finally, as stated in our opening paragraph, DEQ is providing comments only in regards to the issues listed above that DEQ does not beli e ve correctly portrays Oklahoma's laws and regulations. DEQ does not, expressly or implicitly, make any additional comments regarding the249

veracity of the Report. As always, the DEQ appreciates the opportunity to more accurately state the CCR regulatory clim ate in Oklahoma.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. Ho wever EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relyi ng on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0201

- 2 

### Organization 1 

### : Commonwealth of Pennsylvania, Department of Environmental Protection (DEP) 

### Commenter 1 : Michael Krancer Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 11.2.5 

### Comment Excerpt Text: We know that the level of public awareness on coal ash rose with the Tennessee Valley Authority coal ash impoundment failure in 2008. This might be the reason for EPA’s “rush” toward making all coal ash everywhere “hazardous waste” and brought under EPA’s sole governance. However, Pennsylvania reacted quickly and decisively to the event. DEP strengthened the applicable sections of our residual waste regulations in new Chapter 290 to provide for additional water quality monitoring, the establishment of chemical (leachate) and physical standards and a procedure for qualifying ash for reclamation use, which we had done previously by policy.

Pennsylvania’s experience is a testament to how well and how responsively the individual states can and do regulate in this area. Indeed, as Pennsylvania’s experience with Chapter 290 demonstrates, the states are better a nd more agile at doing so than is the federal government, which is one of the main underpinnings of HR 2273 recently passed by the House of Representatives. HR2273 would provide general management guidelines under which states would able to implement envir onmentally protective programs that meet individual state needs, a250

much better approach than designating a non

- hazardous material a hazardous waste.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0201

- 5 

### Organization 1 

### : Commonwealth of Pennsylvania, Department of Environmental Protection (DEP) 

### Commenter 1 : Michael Krancer Commenter Type: State Government Classification: Sub stantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 8.9 

### Comment Excerpt Text: The NODA also listed the following document for comment:

· Comments of EarthJustice, Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, Physicians for Social Responsibility, November 19, 2010.

While the time allotted for comments to the NODA (30 days) did not allow for detailed review
of all the identified state programs in those comments, DEP notes that the report also contains many of the same allegations as the previous two reports identified in this letter. Please be advised that our enclosed rebuttals also serve as commentary on those com ments contained in the November 19, 2010, comments submitted by EarthJustice, et al.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for251

pro mulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Further more , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has n ot responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage case s to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0211

- 30 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG), et al. 

### Commenter 1 : James Roewer Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 5.6.4 7.3.1 10.4.3 8.9 6.8.9 

### Comment Excerpt Text: USWAG’s primary comments on the NODA a re as follows:

- The new CCR facility and waste management data illustrate that CCR impoundments are operated safely and that not a single CCR impoundment, out of the hundreds inspected by EPA, poses an immediate safety threat.

- The noticed chemical con stituent data underscores that CCRs rarely, if ever, exhibit a waste characteristic and that no category of CCRs meets EPA’s hazardous waste listing criteria.

- Contrary to comments in the docket from groups with a narrow agenda of pervasive federal regul ation, comments from state regulators illustrate that the states have successfully overseen CCR management programs for decades and have the expertise and resources to implement an
effective non

- hazardous CCR program. In contrast, the imposition of a hazar dous CCR regulatory scheme would create practical problems at the state level that would frustrate the intent of this rulemaking.

- Comments from end users of CCRs and CCR products demonstrate that designating CCRs destined for disposal as “special” hazar dous wastes will saddle all CCRs with a stigma that will be adversely impact the beneficial use rates of those materials.

- A review of the alleged damage case data in the NODA docket compels the conclusion that that252

none of the alleged damage cases warra nt reversal of EPA’s Bevill determinations or regulation
of CCRs under Subtitle C.

- EPA’s risk assessment contains serious flaws in its inputs and modeling methodology which are not addressed by the information in the NODA. Some of the information in the NODA could contribute to modest improvements in the risk assessment, but only if used appropriately.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in t his rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0211

- 4 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG), et al. 

### Commenter 1 : James Roewer Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
III. THE NEW ANALYSES OF STA TE PROGRAMS COMPEL THE PROMULGATION OF
NON

- HAZARDOUS CCR CONTROLS

In the section of the NODA on new analyses of state programs, EPA primarily includes comments from three sources: (1) comments submitted by Earthjustice et al. which purport to address gaps in state regulatory programs (EPA

- HQ

- RCRA

- 2011

- 0392

- 0119) (“Earthjustice comments”); (2) comments by state representative organizations submitted by the Association of State and Territorial Solid Waste Management Officials (EPA

- HQ

- RCRA

- 2011

- 0392

- 0120) (“A STSWMO comments”) and the Environmental Council of the States (“ECOS”) (EPA

- HQ

RCRA

- 2011

- 0392

- 0118); and (3) comments submitted by various state agencies. Earthjustice’s comments on the CCR proposal that are included in the NODA take aim at what it claims are gaps and deficiencies in state regulatory programs for CCRs and how these gaps compel the promulgation of hazardous waste regulation of CCRs. Notably, these comments take only a superficial look at state regulatory programs and incorrectly assume both (i) that states must specifically adopt non

- hazardous regulatory controls for the controls to be effective, and (ii) that the states will not promulgate and/or enforce such controls. As discussed below, these assumptions are unfounded. The state agency and state representative organizations’ comments, on the other hand, underscore the practical problems at the state level of imposing hazardous waste controls for CCRs, especially when these controls will differ based on the downstream use
of the materials. W hen taken as a whole, the comments included in this section of the NODA253

demonstrate that hazardous waste regulation will not increase the protectiveness of regulatory controls at the state level, and therefore EPA should adopt the more cost

- effective and w orkable

non

- hazardous regulatory option for CCRs.

A. Earthjustice Claims that Hazardous Waste Controls Are Needed to Correct State CCR Regulatory Deficiencies are Unfounded

Earthjustice’s comments on the CCR proposal assert many reasons why it believes t hat hazardous waste regulation of CCRs is necessary. The comments include a summary of a survey of various state regulatory requirements currently applicable to CCRs and compare these existing requirements to an ideal set of regulatory components as envisa ged by Earthjustice. Not surprisingly, given Earthjustice’s overarching goal of the promulgation of a federal hazardous waste regulatory scheme for CCRs, it purports to show that there is a lack of adequate non

hazardous waste regulatory controls across th e surveyed states. Earthjustice contends that these differences from its ideal set of regulatory controls demonstrate that the current state requirements must be preempted by federal hazardous waste regulations. Earthjustice’s straw man analysis of state r egulatory programs, however, fails in several primary respects.

Earthjustice’s underlying assumption is that the only way a CCR regulatory program could be sufficiently protective of human health and the environment is if it mandated all of Earthjustice’s ideal set of regulatory controls. Therefore, any state with a CCR management program that deviates in any respect from the particularized suite of ideal controls posited by Earthjustice is characterized as ineffective. For example, to meet Earthjustice’s groundwater monitoring standard, a particular state must have nonwaivable groundwater monitoring requirements for all CCRs regardless of their toxicity, including requirements that at least four wells be sampled on at least a quarterly basis. Any state tha t does not meet each and every component of this standard will be characterized by Earthjustice as not having effective groundwater monitoring requirements. Earthjustice comments at 25

- 28. This method for assessing the effectiveness of any particular regul atory standard through comparison with Earthjustice’s notion of a perfect regulatory standard completely ignores the real world expertise of state regulators in designing and applying non

- hazardous waste rules to CCRs. Most importantly from a rulemaking

pe rspective, it incorporates absolutely no factual information about whether and how any particular state program is failing to protect human health and the environment.

Earthjustice also completely dismisses all state requirements that can be waived, are b ased on the observed toxicity of particular types of CCRs, or are left to the discretion of state regulators. See e.g., Earthjustice comments at 30 (discussing leachate collection systems). Based on pure conjecture, Earthjustice makes the sweeping generali zation that “the discretion given to state regulators and the variances that they subsequently grant may significantly compromise the safety of a waste disposal unit.” Id. at 23. Earthjustice then provides a few examples of where states have provided waive rs and summarily concludes that “when state law gives regulators discretion to waive basic safeguards such as liners and cover, the states use that discretion liberally.” Id. Earthjustice claims that states with even the ability to waive these requirements (even if waivers are not actually granted) have insufficient regulatory controls. The remarkable deficiency in these claims is that Earthjustice does not point to a single instance when a state’s waiver of a particular requirement for a CCR management uni t has resulted in actual harm to254

human health or the environment. The assumption that state regulators with expertise and a duty to protect the human health and environment in their state will undermine the protectiveness of state programs applicable to CC Rs ignores the real world functioning of state programs and undermines the credibility of Earthjustice’s claims.

Earthjustice claims that state programs with waivers or discretionary decisionmaking are ineffective but completely fails to provide any factu al background or real world evidence as to where a waiver has been granted without sufficient technical review or has actually resulted in a failure to protect human health or the environment. The mere fact that waiver authority exists
does not mean this a uthority is abused or that these programs are deficient. Earthjustice presumes that the existence of state waiver authority necessarily means that waivers are insensibly granted and that granting these waivers undermines the protectiveness of regulatory co ntrols. Earthjustice makes the assumption that state regulators are incapable of administering non

- hazardous regulatory programs and cannot be given any discretionary authority.

These same assumptions are also made for any state regulatory program require ments that differ in any respect from what Earthjustice would require. As previously mentioned, Earthjustice cites to state groundwater monitoring programs for CCR landfills and argues that the controls are insufficient because the state programs call for semi

- annual sampling. Earthjustice categorically labels such groundwater monitoring progras as “insufficiently protective” because, in Earthjustice’s view, any groundwater monitoring program must require quarterly sampling. Earthjustice comments at 26

- 27. Once again, Earthjustice fails to point to any alleged harm that has resulted from groundwater monitoring programs that require semi

- annual monitoring and fails to investigate whether semi

- annual monitoring in the states in question is perfectly
reasonable given state

- specific climatic and geologic factors. Indeed, even under the well

established groundwater monitoring program for municipal solid waste landfills under 40 C.F.R. Part 258, groundwater monitoring can be waived altogether if certain demonstrati ons are made. See 40 C.F.R. 258.50(b). Put simply, in Earthjustice’s view of the world, no state program can be relied upon to effectively regulate CCRs.

Even more fundamental than dismissing all state controls that depart from its ideal, Earthjustice’s

c omments completely ignores the core structure of the nonhazardous regulatory program that EPA actually describes in its proposal. Earthjustice dismisses the option of regulating CCRs through a non

- hazardous waste framework because states will fail to adopt and enforce the basic requirements of a Subtitle D rule. Earthjustice comments at 61. These comments completely ignore the framework and mechanism that EPA includes in the Subtitle D portion of the CCR proposal as well as the history of state adoption of the criteria for solid waste disposal facilities.

As Earthjustice should be aware, the Subtitle D rule would impose self

- implementing controls on CCR facilities enforceable by the states and citizen groups. No state adoption is necessary under
the framewo rk that EPA proposes; rather the nonhazardous portion of the CCR proposal would be a federal regulation that is directly binding on all CCR disposal units and would be directly enforceable by citizens or the states. Enforcement by states and citizens group s would be substantially aided by the rule’s requirement for self

- reporting of compliance status via a facility’s website. [Footnote 9: There is little doubt that the utility electrical generators covered by this proposed rule will comply with the regulati ons if finalized. Cf. Comments of Kentucky255

Department of Environmental Protection (EPA

- HQ

- RCRA

- 2011

- 0392

- 0078) (“Our experience under solid waste and special waste rules is that the major utilities generally comply with environmental regulations involving ash.”).] As ASTSWMO correctly points out in its comments, “[t]hese requirements establish a substantial basis for both citizens and those States without equivalent State requirements to successfully enforce under RCRA citizen suit authority.” ASTWMO commen ts at 24. As a result of this self

- implementing framework, the allegations that Earthjustice makes about current state regulatory practices are completely irrelevant in evaluating the effectiveness of the Subtitle D proposal that EPA includes in its CCR

pr oposal.

Additionally, the historical evidence of the adoption of Subtitle D regulations by the states demonstrates that states can and do adopt non

- hazardous waste programs into their state requirements. The 40 C.F.R. Part 257 Subtitle D regulations for s olid waste disposal facilities have been uniformly adopted by the states, and most of the state Part 257 regulations are more stringent than what EPA itself issued. The history of state adoption of 40 C.F.R. Part 257 demonstrates that many States will volu ntarily establish compatible state CCR regulations under Subtitle D. See ASTSWMO comments at 24. “The high level of involvement by state waste programs is good evidence that if national waste management standards for CCRs were promulgated, States would ado pt those standards just as they have adopted the Part 257 standards.” ASTWMO comments at 23

- 24. Earthjustice completely ignores the relevant historical evidence in dismissing any possibility of a non

- hazardous solid waste regulatory
framework for CCRs.

Ea rthjustice’s comments in the NODA are not grounded in the factual realities of state CCR regulatory programs; nor do they take account of the practical consequences of instituting a federal hazardous waste program for CCRs. Their comments should be afforde d little weight by EPA as it considers which option to pursue in its final rule

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.256



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0212

- 3 

### Organization 1 

### : Consumers Energy Company (Consumers Energy) 

### Commenter 1 : Gary Dawson Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 

### Comment Excerpt Text: Adequacy of State Regulatory Programs

Consumers Energy believes that the information provided in this NODA on existing state regulatory programs for CCR provided by the Environmental Council of States, the Association of State and Territorial Solid Waste Management, and 36 state governments in states where coal ash is produced clearly demonstrates and supports our previous contention that adequate state regulatory pr ograms for CCR management, disposal, and beneficial use currently exist and that the imposition of a separate federal program to manage these wastes is not needed. Consumers Energy has previously commented on the adequacy of state programs in general and M ichigan's program that has been in place since 1983 and is based on the Subtitle D regulation of municipal solid waste landfills in particular. We have also specifically commented in opposition to both the version of the proposed Subtitle D rule that would exclude a state regulatory role and also the regulation of CCR under Subtitle C with State assumption of regulatory authority. The former ignores a long history of competent state performance under RCRA Subtitle D guidance and replaces it with a system th at relies on enforcement by citizen suit; the latter provides an unreasonable and wholly unnecessary regulatory imposition on state resources through an
unfunded federal mandate.

Response: The Agency acknowledges and appreciates the comment. The comment er is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentat ion and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste man agement plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relev ant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.257



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0215

- 8 

### Organization 1 

### : Duke Energy Business Services, LLC (Duke Energy) 

### Commenter 1 : Richard Meiers Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 

### Comment Excerpt Text: VI. Comments on Adequacy of State Programs

Duke Energy supports ASTSWMO, ECOS, and a majority of the individual states in their responses to information in the NODA from environmental groups challenging the adequacy of state CCR regulatory programs. There are dozens of comment letters from state environmental protection agencies supporting the adequacy of state programs. As outlined by ASTSWMO and ECOS, state CCR control programs are working well.

The environmental groups’ comments in the NODA allege that wide

- spread deficiencies and gaps in state regulatory programs compel EPA to develop a federal hazardous waste regulation for CCR, thereby undermining the states’ ability to enforce non

- hazardous regulations in a

ma nner that is protective of human health and the environment. Duke Energy’s rebuttal to the three alleged damage cases for its facilities, along with USWAG’s rebuttal to all of the other alleged damage cases, expose the weakness of the environmental groups’ attempt to rely upon inflated and unproven damage case numbers to justify their claims that state regulatory programs are ineffective and not protective of human health and the environment.

EPA’s concern about the protectiveness of state regulatory progr ams is unfounded. Historical evidence of state level mandates implementing and enforcing industrial non

- hazardous waste regulations demonstrate they can be effective in administering a Subtitle D non

- hazardous regulation specifically for CCR. In addition, ASTSWMO’s comments on the Proposed Rule make a compelling case that regulating CCR under the Subtitle C option would be counterproductive, as it will place an additional burden on limited state resources and likely lead to less oversight, thus undermining the effectiveness of a CCR regulatory program.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant258

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0217

- 1 

### Organization 1 

### : Nebraska Department of Environmental Quality 

### Commenter 1 : David Haldeman Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 4.5 

### Comment Excerpt Text: We note that the docket already contains a letter from the Nebraska Department of Environmental Quality (NDEQ) that provides comment on EPA's proposed rule publis hed on June 21, 2010 (75 FR 35127).

The NDEQ comments to the 2010 proposed rule contains a detailed description of Nebraska's existing CCR permitting and management program that we believe demonstrates CCR landfills in Nebraska are well managed under NDE Q's current solid waste regulations. We hope EPA gives careful consideration to the NDEQ comments on the 2010 proposed rule and reiterate our preference that if EPA promulgates a final rule, the rule reflects a Subtitle D approach similar to the requiremen ts for municipal solid waste landfills contained in 40CFR Part 258. We strongly believe a Subtitle C approach is unnecessary and would have a substantial negative impact on NDEQ's existing CCR regulatory program.

Response: The Agency acknowledges and ap preciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0220

- 2 

### Organization 1 

### : NRG Energy, Inc. (NRG) 

### Commenter 1 : Verne Shortell Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: •State Program Validity

– The analysis of state programs and comments from state environmental agencies, various state and local government organizations, technical organizations such as EEI, EPRI, and ASTM, has proven that state agencies and their associated programs are adequate to regulate and enforce CCR disposal and while federal oversight is beneficial, federal management of state programs is not warranted. Comments from state259

regulators illustrate that the states have successfully overseen CCR management programs and have the expertise and resources to implement an effective non

- hazardous CCR program. To the extent that isolated problems arise, the states have in fact take action to address issues in their
communi ty

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface im poundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to c omments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state pr ograms to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0222

- 2 

### Organization 1 

### : Kansas Department of Health and Environment 

### Commenter 1 : William Bider Commenter Type: State Government Classification: Substantive
Comment Cat egory: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Our comments specifically address the provisions of the Kansas industrial landfill permitting program which was inaccurately characterized in the Earth Justice report entitled: "State of Failure: How States Fail to Protect our Health and Drinking Water from toxic Coal Ash. "

The above

- mentioned Earth Justice report appears to have been prepared based upon a survey of states which did not ask the proper questions to fully or accu rately characterize the adequacy of applicable laws and regulations related to the administration of state permitting programs. For example, while Kansas does not have specific regulations related to coal combustion residue landfill permits, we do have gen eral requirements for all landfills that include comprehensive engineering and hydrogeological reviews that ensure environmentally sound designs and operating plans at CCR and other industrial landfills. It would appear from Earth Justice's summary of stat e programs, that CCR disposal in Kansas is basically unregulated, but this is far from the truth. Every CCR landfill in Kansas is thoroughly regulated and monitored to assure human health and the environment are adequately protected.260

We have attached deta iled comments that address many specific points raised in the Earth Justice report . While our comments relate only to the inaccuracies presented for Kansas, I would like to emphasize that I believe our concerns regarding the mischaracterization of state p rograms extends to other states as well . I presently serve on the Board of Director's for the Association of State and Territorial Solid Waste Management Officials (ASTSWMO) and board discussions last week demonstrated widespread state disagreement with t he Earth Justice report.

Kansas strongly recommends that EPA should not utilize the Earth Justice "State of Failure" report due to clear errors . It would be very inappropriate to make such an important regulatory decision based upon inaccurate informatio n.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface imp oundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion o n how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has r esponded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to co mments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state pro grams to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0222

- 3 

### Organization 1 

### : Kansas Department of Health and Environment 

### Commenter 1 : William Bider Commenter Type: State Government Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Kansas is providing specific comments to point out the errors presented in the following report submitted by Earth Justice and Appalachian Mountain Advocates:

"State of Failure : How States Fail to Protect Our Health and Drinking Water from Toxic Coal
Ash"

General Concerns261

Based upon erroneous information, Earth Justice repeatedly used inflammatory and overly expressive words and sentences in the Introduction, Part 1, Part II, and the Conclusion of the "State of Failure" report to exaggerate deficiencies in state programs to support their position that the U.S. EPA should regulate coal ash as a Subtitle C waste to protect public health .

Response: The Agency acknowledges and a ppreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Uni t VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant
comments that relat e to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the fact s involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s pr ovisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0223

- 4 

### Organization 1 

### : Ameren Corporation 

### Commenter 1 : Paul Pike Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 

### Comment Excerpt Text: State Programs

Environmental groups' comments in the NODA allege that there are gaps and deficiencies in state regulatory programs for CCR and that these gaps compel the promulgation of hazardous waste regulati on of CCR. These comments take only a superficial look at state regulatory programs and incorrectly assume that states must specifically adopt non

- hazardous regulatory controls for the controls to be effective and that the states will not promulgate or enf orce such controls. Comments from numerous state agencies and state representative organizations on CCR regulatory programs at the state level demonstrate that the environmentalist groups' criticisms are off the mark and evidence a poor understanding of th e practicalities of CCR regulation. State comments make clear that a Subtitle D program for CCR can and will be effectively administered by the states and that imposing a Subtitle C regulatory structure on the states would be counterproductive, as it will overtax limited state resources and likely lead to less effective262

oversight.

Our own experience with our two States' has been clear that they have strong effective programs that in some ways go beyond the proposed CCR Subtitle D program. Gaps may appear t o be present because they do not have consolidated regulations for all aspects of CCR management, but we believe that they already regulate our facilities in a manner that is protective of human health and the environment. In sum, hazardous waste regulatio n will not increase the protectiveness of regulatory controls at the state level, and that a Subtitle D program for CCR represents the most cost

- effective and workable regulatory option for a federal CCR program.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0227

- 3 

### Organization 1 

### : Entergy Services, Inc. (Entergy) 

### Commenter 1 : Myra Glover Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 

### Comment Excerpt Text: The New Analyses of State Programs Compel the Promulgation of Non

- Hazardous CCR
Controls

In the section of the NODA on new analyses of state programs, EPA primarily includes comments from three sources: (1) comments submitted by Earthjustice et al. which intend to address gaps in state regulatory programs (“Earthjustice comments”) (comments included in
NODA docket at number EPA

- HQRCRA

- 2011

- 0392

- 0119); (2) comments by state

re presentative organizations submitted by the Association of State and Territorial Solid Waste263

Management Officials (comments included in NODA docket at number EPA

- HQ

- RCRA

- 2011

- 0392

- 0120) and the Environmental Council of the States (“ECOS”) (comments include d in
NODA docket at number EPA

- HQ

- RCRA

- 2011

- 0392

- 0118); and (3) comments submitted by various state agencies.

The Earthjustice comments in the NODA allege that there are gaps and deficiencies in state regulatory programs for CCR and that these gaps compel the promulgation of hazardous waste regulation of CCR. These comments take only a superficial look at state regulatory programs and incorrectly assume that states must specifically adopt non

- hazardous regulatory controls for the
controls to be effective a nd that the states will not promulgate or enforce such controls. Comments from numerous state agencies and state representative organizations on CCR regulatory programs at the state level demonstrate that the environmentalist groups’ criticisms
are off the mark and show evidence of a poor understanding of the practicalities of CCR regulation. State comments make clear that a Subtitle D program for CCR can and will be effectively administered by the states and that imposing a Subtitle C regulatory structure on the states would be counterproductive, as it will overtax limited state resources and likely lead to less effective oversight. In sum, the comments included in this section of the NODA demonstrate that hazardous waste regulation will not increase the pr otectiveness of regulatory controls at the state level, and that a Subtitle D program for CCR represents the most cost

- effective and workable regulatory option for a federal CCR program.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a p resentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid w aste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwi se relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cas es. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0227

- 4 

### Organization 1 

### : Entergy Services, Inc. (Entergy) 

### Commenter 1 : Myra Glover Commenter Type: Electric Utility Company Classification: Substantive Comment Category:264

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
S tate Programs in Arkansas and Louisiana Already Provide Adequate Control

Arkansas Pollution Control and Ecology Commission (“APC&E”) Regulation 22 includes siting criteria, design and operational standards, closure and post

- closure care standards, financi al assurance, and groundwater monitoring requirements which affect Arkansas CCR landfills. All CCR landfills in Arkansas are permitted as Class 3N Landfills under Regulation 22. This regulation provides for siting separation from water tables; airports; we tlands; floodplains; faults, seismic or otherwise unstable areas; setbacks from drinking water sources, dwellings, and property boundaries; and separation from endangered species. Class 3N Landfill siting criteria is compliant with 40 CFR Part 257, which i s incorporated into Regulation 22. Regulation 22 provides protective standards for CCR by dry disposal in a Class 3N Landfill; there is no permit option for wet disposal in Arkansas. The weblink to these regulations is at:

http://www.adeq.state.ar.us/regs /files/reg22_final_080426.pdf

As a requirement of state statute, Arkansas Department of Environmental Quality (“ADEQ”) staff performs on

- site inspections of all landfills on a minimum quarterly basis for compliance with applicable regulations and permits. Additional inspections are also performed should a complaint be filed on a facility. Additionally, as a requirement of Regulation 22, a Professional Engineer (“P.E.”) currently registered in Arkansas is required to perform an annual engineering inspection report (AEIR) which includes site surveys, site capacity and site

- life analysis, updated calculations for closure and post closure care cost estimates, and updated financial assurance.

Regulation 22 provides standards for groundwater monitoring and repor ting modeled after the federal Subtitle D standards. Provision is made that Class 3N landfills may consider site

- specific waste characteristics to help refine the sampling parameter list and frequency used in the site

specific program.

All CCR landfills i n Arkansas are required by statute to be permitted under the procedures of various APC&E regulations. Permit application technical documents are required to be prepared and certified by a P. E. and Professional Geologist (“P.G.”) registered in Arkansas. Pe rmit procedures include multiple components of public notice, review and hearings; technical data review by ADEQ staff; and process for permit appeal to the APC&E.

ADEQ and Entergy believe the current regulations affecting CCR landfills in Arkansas to be adequate to protect human health and the environment. Operational standards addressed in Regulation 22 include stormwater and leachate management; operator training and licensing; waste spreading and compaction; equipment and facilities; maintenance and re pairs; unauthorized waste exclusion and contingencies. Design aspects of Regulation 22 include site characterization and hydrogeologic investigations; separation from groundwater; analysis of waste constituents; bottom liner and final cover specifications; leachate collection system specifications, storage and disposal; closure plans, cost estimates and financial assurance; groundwater monitoring networks; construction quality assurance (CQA) plans and265

certifications.

ADEQ

– Solid Waste Management Division permitting staff includes four engineers, an engineer supervisor which is required to maintain P.E registration, two geologists, a geology supervisor, and an assistant to the group. The permitting section is currently fully staffed. The Solid Waste Manage ment Division also employs eight field inspectors, an inspector supervisor, as well as enforcement and support staff. ADEQ budget is currently adequate to maintain this staff and there are no known changes which will affect staffing.

The State of Louisian a Department of Environmental Quality (“LDEQ”) has substantially adopted, and is enforcing, all requirements under Subtitle D for its solid waste program, including coal combustion residuals. The specific requirements for landfills may be found at
LAC 33:V II.709 and 711 for landfills, and at LAC 33:VII.709 and 713 for surface impoundments. Groundwater monitoring for both may be found at LAC 33:VII.Chapter 8. The regulated coal combustion residual units in Louisiana are all fully permitted under the state’s solid waste program. Thus none of the regulated coal combustion residual units in our state can be considered “open dumps” as defined under 40 CFR 257.2.

The following is a summary of Landfill / Surface Impoundment requirements under the
Louisiana Solid W aste Program (with references to corresponding federal Subtitle D requirements):

1. Groundwater Monitoring during operation

a. Required for all landfills and surface impoundments; must include sufficient number of wells to represent groundwater quality a t point of compliance (LAC 33:VII.805.A; 40 CFR 257.22). The Earthjustice comments state that existing sites in Louisiana are grandfathered, and are not required to do groundwater monitoring. This is incorrect.

b. The groundwater monitoring program at eac h facility must include sampling and analytical procedures to ensure representative results (LAC 33:VII.805.B; 40 CFR 257.23).

c. A Detection Monitoring Program is required for all facilities (LAC 33:VII.805.C; 40 CFR 257.24).

d. An Assessment Monitoring Program is required whenever a statistically significant increase over background concentrations is detected and confirmed for one or more monitoring parameters (LAC 33:VII.805.D; 40 CFR 257.25).

e. Corrective Measures Assessment and Selection of Remedy required for those facilities in an Assessment Monitoring Program (LAC 33:VII.805.E

- F; 40 CFR 257.26

- 27).

f. Corrective Action Implementation is required for those facilities in an Assessment Monitoring Program, following the Selection of Remedy (LAC 33:V II.805.G; 40 CFR 257.28).

2. Composite Liner: Required for all landfills and surface impoundments built after December266

31, 1997 (LAC 33:VII.711.B.5, 713.B.3)

3. Leachate Collection System: Required for all landfills built after December 31, 1997 (LAC
33: VII.711.B.4)

4. Daily Cover: Daily cover or alternative daily cover required for all landfills (LAC 33:VII.711.B.2; 40 CFR 257.3

- 8)

5. Dust Controls: Control of vectors, dust, litter, and odors required for all landfills and surface impoundments (LAC 33: VII.521.G.1). The Earthjustice comments state that Louisiana does not require dust control.

6. Run

- off Controls: Surface

- runoff diversion required for working areas of the landfill for all landfills (LAC 33:VII.711.A.3 and 5); Louisiana’s requirement is m ore stringent than Subtitle D requirements for industrial solid waste.

7. Separation from Water Table: No requirements in Louisiana regulations.

8. Financial Assurance: Required for all landfills and surface impoundments (LAC 33:VII.521.K); Louisiana’s r equirement is more stringent than Subtitle D requirements for
industrial solid waste.

9. Composite Final Cover: Required for all landfills and surface impoundments closed with waste in place (LAC 33:VII.711.E.3, 713.E.3); Louisiana’s requirement is more s tringent than Subtitle D requirements for industrial solid waste.

10. Groundwater Monitoring for 30 years post

- closure period : Required for all landfills and surface impoundments closed after October 9, 1993 (LAC 33:VII.711.F.3, 713.F.2); Louisiana’s

req uirement is more stringent than Subtitle D requirements for industrial solid waste.

The three coal plants and associated CCR landfills that Entergy operates are permitted by the Arkansas and Louisiana Departments of Environmental Quality. Both state progr ams require that CCR landfills be constructed at a minimum with a compacted clay liner of at least a two

- foot thickness with a hydraulic conductivity of no more than 1 x 10

- 7 cm/sec with a leachate collection system or with geosynthetic liners, and meet th e stringent design criteria discussed above. The state programs in Arkansas and Louisiana demonstrate that states can effectively manage CCR disposal and should be the administrators of any Subtitle D option. Furthermore, Entergy believes that the intent o f EPA’s proposed regulation of CCRs, to ensure protection of human health and the environment, can be adequately achieved through Subtitle D by issuing national minimum criteria and establishing dam and impoundment safety requirements to
address the struct ural integrity of surface impoundments to prevent catastrophic releases, and that Arkansas and Louisiana’s existing regulations are a testimony to the ability of state programs to do so.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for267

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a p resentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not r esponded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no fina l conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0228

- 1 

### Organization 1 

### : Virginia Department of Environmental Quality (DEQ) 

### Commenter 1 : J effery Steers Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 11.2.5 

### Comment Excerpt Text: As we have previously stated, Virginia DEQ still believes that proposed regulations for the dry handling of CCRs continue to be unnecessary. Virginia, like many states, has a comprehensive regulatory program for the management of CCRs.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discus sion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the fin al subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, howev er, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.268



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0228

- 14 

### Organization 1 

### : Virginia Department of Environmental Quality (DEQ) 

### Commenter 1 : Jeffery Steers Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sect ions: 7.1.1 7.1.2 

### Comment Excerpt Text: The State of Failure: How States Fail to Protect Our Health and Drinking Water from Toxic Coal Ash report (State of Failure) also provides oversimplification of the regulatory requirements for Virginia’s surface imp oundments and landfills.The regulatory requirements are summarized in Table 2, Table 3, and Part III of the report. As noted above, Virginia’s SWMR have requirements for industrial landfills that manage CCR. These requirements include groundwater monitorin g, a liner system, engineering design of landfills to include protection from groundwater intrusion, and financial assurance for the closure and post

- closure care of solid waste management facilities. Table 2 of the report incorrectly indicates that these items are not required. Of note, is the fact that the disposal of industrial waste has been regulated in Virginia since 1971 and comprehensive requirements for industrial waste landfills, from design through post

- closure, have been in place since 1988.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoun dments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on h ow EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to c omments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state pr ograms to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0228

- 16 

### Organization 1 

### : Virginia Department of Environmental Quality (DEQ) 

### Commenter 1 : Jeffery Steers269

Commenter Type: State Government Classification: Substantive
C omment Category: Current Task: Examine Context Assigned/Due: Other Sections: 5.4 

### Comment Excerpt Text: And finally, Part III, of the State of Failure report indicates that 2009 TRI data shows that the majority of releases from electric generation sector are mercury. DEQ has reviewed this data and talking into consideration TRI releases from Virginia power plants and TRI releases from all industry sectors. From our 2009 TRI node data set, it indicates that the primary releases to land was not mercury and DEQ has not been able to recreate the data from this report and cannot confirm its validity.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, E PA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the dam age cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0228

- 17 

### Organization 1 

### : Virginia Department of Environmental Quality (DEQ) 

### Commenter 1 : Jeffery Steers Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Contrary to the unsupported claims set forth in the State of Failure report, Virg inia’s legacy is not one of mismanagement of CCR, but one of continued improvements to better protect our citizens and our environment. In fact, Virginia has a regulatory program for landfills, surface impoundments, and dams that is protective of public he alth and the environment. DEQ is committed to its mission to protect and improve the environment for the well being of all270

Virginians.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the prea mble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical standard s the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is d eferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0228

- 8 

### Organization 1 

### : Virginia Department of Environmental Quality (DEQ) 

### Commenter 1 : Jeffery Steers Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
Clarifications on information in the Ear thjustice Comments and the State of Failure report The adequacy of Virginia’s regulatory programs was discussed in the comments submitted by Earthjustice and further discussed and criticized in the State of Failure report. However, much of the data present ed is incorrect, incomplete, or unclear and may be misleading in its representation of Virginia’s regulatory requirements.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.271

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0233

- 5 

### Organization 1 

### : MidAmerican Energy Holdings Company 

### Commenter 1 : Cathy Woollums Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: 4. New Analyses of State Programs

– Due to the limited amount of time provided to submit comments, MidAmerican has not had an opportunity to conduct a comprehensive analysis of perceived g aps in state regulatory programs applicable to the management of CCRs. MidAmerican submits that EPA should objectively determine whether there are gaps in state programs, rather than relying on others’ subjective assertions of the robustness of state progr ams

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0234

- 3 

### Organization 1 

### : Wisconsin Electric Power Company (We Energies)272



### Commenter 1 : Bruce Ramme Commenter Type: Electric Utility Company Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 10.5.2.3 

### Comment Excerpt Text: Section VII (New analysis of state programs)

The substantive response of nearly 30 states agencies provides extensive information about existing state regulatory programs for remediating impacted sites and for beneficially utilizing CCRs. This new information provides a strong foundation for this docket, and strong support that these existing programs ensure environmental protection and public hea lth, and therefore support an EPA determination of a Subtitle D, non

- hazardous approach to managing CCRs.

In reviewing the NODA docket as it pertains to state programs for regulation of CCRs, it is clear from the nearly 30 state agency comments that stat es overwhelmingly object to a RCRA Subtitle C approach for managing CCRs. It is not warranted based upon over 20 years of testing and analysis, and would damage existing regulatory programs. State agencies strongly favor a Subtitle D, non

- hazardous approac h to managing CCRs and dispute statements that the states are not capable of regulating CCRs, especially where a clear set of national criteria are provided. Information provided in detailed comments by two organizations representing state agencies, the
As sociation of State and Territorial Solid Waste Management officials (ASTSWMO) and the Environmental Council of States (ECOS) also encourage EPA to avoid regulatory over

- reaching with CCR disposal rules under RCRA Subtitle C.

We believe that preserving be neficial use programs such as Wisconsin’s NR 538 is an effective and efficient method of reducing landfilling demands while protecting human health and the environment. EPA can administer similar beneficial use programs based on appropriate criteria

create d for national application. Site based criteria which recognizes the specific hydrological and geological characteristics of a geographical area and is understood by local regulatory agencies is a critical component of such national criteria.

As noted ab ove under Section VI comments, there are specific examples of how the Wisconsin Department of Natural Resources administers remediation (NR700), landfill (NR500) and beneficial use (NR 538) programs which provide protection of human health and the
environm ent and are effectively working under current regulations without the imposition of
RCRA Subtitle C rules.

For each of the sites listed, it should be noted that the Wisconsin Department of Natural Resources has approved and administered remediation plans under a regulatory framework which was designed to ensure environmental protection and protect public health (Wisconsin Administrative Code, Natural Resource 700 rule series). It is our specific comment that the Wisconsin regulations for managing CCR land fills (Wisconsin Administrative Code, Natural Resource 500 rule series) and investigation / remediation of environmentally impacted sites (Natural Resource 700 rules) are efficient and effective tools for environmental protection. As a273

further endorsement of state administered regulatory programs, the Beneficial Use of Industrial By

- Products rules under Wisconsin Administrative Code NR 538 is a highly effective program for controlling and promoting the use of CCRs in construction and industry, and helping t o minimize the disposal of these materials. The adequacy of these state programs has clearly been established and Wisconsin can demonstrate that their existing regulatory programs for managing and remediating impacted sites and for beneficially utilizing C CRs ensure environmental protection and protect public health.

We support the inclusion of document EPA

- HQ

- RCRA

- 2011

- 0392

- 0084. This document provides comments by the Wisconsin Public Service Commission and the Wisconsin Department
of Natural Resources.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.

The commenter is also referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a complete discussion of t he beneficial use aspects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0236

- 14 

### Organization 1 

### : Iowa Department of Natural Resources (IDNR) 

### Commenter 1 : Brian Tormey Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.2 

### Comment Excerpt Text: In conclusion, while the IDNR acknowledges that improvements to Iowa’s CCR regulatory programs can and should be made, the mischaracterization and unsupported claims regarding our regulatory control of CCR should not be used to substantiate Subtitle C regulation. Such274

misrepresentations are a distraction to the development of an appropriate public policy regarding the management of CCR that ensures the protection of hu man health and the environment.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CC R in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is
also referred to Unit IX of t he preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical require ments, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those

programs a nd is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0236

- 2 

### Organization 1 

### : Iowa Department of Natural Resources (IDNR) 

### Commenter 1 : Brian Tormey Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 8.9 

### Comment Excerpt Text: Because of the significant programmatic, logistic and economic implications to our state from the proposed regulation of CCRs, it’s imperative that EPA have accurate data with which to base a determination. Regrettably, some information received during the 2010 proposed rule public comment period regarding Iowa’s CCR regulatory programs and disposal facilities was factually inaccurate or exaggerated to substantiate ulterior agendas. Specifically, IDNR would like to respond to claims made by Earthjustice and other environmental organizations in comments submitted during the 2010 proposed rule comment period and expressed in Se ctions VI and VII
of the NODA.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is275

also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0236

- 4 

### Organization 1 

### : Iowa Department of Natural Resources (IDNR) 

### Commenter 1 : Brian Tormey Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Section VII: Comments of Earthjustice, Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance For Clean Energy, Southern Environmental Law
Cente r, and Physicians For Social Responsibility (Document No. EPA

- HQ

- RCRA

- 2009

- 0640

- 6315)

This report contains several inaccuracies and misrepresentations of Iowa’s CCR regulatory programs that warrant clarification and correction. This report also uses the s ame yes/no evaluation that both overstates and oversimplifies regulatory requirements of state programs it’s attempting to summarize. The following are notable inaccuracies within this submittal:

Response: The Agency acknowledges and appreciates the comm ent. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preambl e for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into stat e solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that ar e otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts276

involved in the d amage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0237

- 3 

### Organization 1 

### : Edison Mission Energy, LLC 

### Commenter 1 : Basil Constantelos Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections : 4.2.5 

### Comment Excerpt Text:
V. EPA’S PUBLIC HEALTH AND ENVIRONMENTAL CONCERNS RELATED TO CCR
DISPOSAL ARE BETTER ADDRESSED THROUGH A MORE NARROWLY TAILORED APPROACH USING EPA’S EXISTING AUTHORITY.

EPA requests comment on whether to consider additional data relating to state regulatory programs. In general, EME submits that EPA has no basis in law or fact to take over the state programs designed to regulate non

- hazardous solid wastes. Rather, when it finds such a regulatory program to be insufficient, EP A should work with that state to improve the regulatory program and, as is necessary to meet its public health and environmental standards, use the Agency’s authority under RCRA § 7003. EPA’s Proposed Rule is unnecessary to meet the agency’s concerns and o verly broad in its scope. EME does not have experience in all states, but the states in which EME operates coal

- fired power plants, Pennsylvania and Illinois, maintain comprehensive programs that specify approved beneficial uses and acceptable characterist ics for CCRs. CCRs used for beneficial use must meet approved state uses and are subject to state analytical standards. Pennsylvania and Illinois also operate regulatory programs covering wastes and groundwater for protecting public health and environmenta l quality. Indeed, Pennsylvania’s regulatory program for CCR disposal is of such high quality that even those arguing to remove state control over CCRs were forced to concede as much [Footnote 27: Earthjustice Comment at 17.]. The Proposed Rule would unnec essarily burden states and companies like EME that have implemented and operated under stringent disposal standards, by imposing additional regulation without any benefit [Footnote 28: EME Comment at 90

- 99.]. Even in states with inadequate regulatory progr ams, the Proposed Rule would provide limited benefits [Footnote 29: Id. at Section III.F.] If there are deficiencies in a state’s regulatory scheme, the EPA currently possesses all the authority it needs to address the endangerment of environmental and pub lic health in states with deficient regulatory frameworks for CCR disposal under RCRA § 7003. Under this section, EPA has the authority to address imminent and substantial endangerment to human health or the environment related to the handling, storage, tr eatment and transportation of solid or hazardous wastes at specific sites without adding undue costs to operators and
consumers in states that are not deficient.

A. The Regulatory Programs in Pennsylvania And Illinois Are Sufficient To Meet EPA’s Public
H ealth and Environmental Concerns277

Pennsylvania’s regulatory framework covers CCR and other waste by

- products of the 43 coal

fired electricity producers in the state. In total, 20 million tons of CCR are generated annually, 11
million of which are used in m ine reclamation and as structural fill while the remaining 8

- 9 million tons are landfilled as residual waste. The transportation, storage, and disposal of CCR is governed by the state’s residual waste regulations [Footnote 30: Pennsylvania Department of
En vironmental Protection Comment at 1

- 2.]. These regulations require liners and groundwater monitoring for all new CCR landfills and surface impoundments, establish design standards, and require regular inspections [Footnote 31: Id.]. Indeed, the Pennsylvani a regulatory framework served as a basis for the EPA’s existing Guide for Industrial Waste Management [Footnote 32: Id.].

Illinois’s regulatory framework for the disposal of CCRs is comprehensive, strictly enforced, and
more than sufficient to meet the hu man health and environmental concerns EPA identified in the Proposed Rule. The state, acting through the Illinois Pollution Control Board (the “Board”), adopted rules identical in substance to the RCRA subtitle D requirements for the regulation of

non

- haza rdous waste management facilities. The Illinois Environmental Protection Act (IEPA), which regulates CCR disposal, applies to both new and existing landfills [Footnote 33: 35 Ill.Adm.Code Part 811; 35 Ill.Adm.Code Part 814. For a more in

- depth discussion o f the application of the Illinois standards to a Midwest Generation facility, please see the attached rebuttal to “In Harm’s Way” that details Midwest Generation’s and Illinois EPA’s handling of the Lincoln Quarry facility.]. The IEPA requires that all non

- hazardous solid waste landfill operations have leachate collection and management systems, groundwater monitoring, properly located monitoring wells, a zone of attenuation, and daily and final cover for the landfills. The Board does grant “Adjusted Standa rds” if a landfill operator or owner makes the requisite technical demonstration that the landfill in question has sufficient site

- specific conditions to warrant an adjusted standard. However, the “Adjusted Standard” is granted only if it is consistent
wit h federal law and the landfill can continue to afford the same level of protection to public health and the environment as the generally applicable state landfill regulations.

The regulatory programs in Pennsylvania and Illinois are in no way deficient an d currently meet or exceed EPA’s public health and environmental standards. For those states that have enacted, maintained, and enforced a comprehensive regulatory framework for the disposal of CCRs the Proposed Rule would be both costly and unnecessary. T he Proposed Rule would do little to improve the regulation of CCR disposal in states like Pennsylvania and Illinois. EPA should focus its resources away from those states with adequate regulatory programs instead of creating duplicative requirements.

B. E PA’s Existing Enforcement Authority Under RCRA § 7003 Is Sufficient To Address CCR Disposal Practices That Present Any Risk To Human Health Or The Environment

EPA’s existing authority under RCRA § 7003 is sufficient to address the agency’s legitimate
heal th and environmental concerns without unduly burdening those states and operators who have maintained and followed rigorous regulatory frameworks for CCR disposal. This authority allows EPA to specifically target those states and operators that do not main tain regulatory programs and site

- specific standards necessary to meet EPA’s concerns. EPA should use its existing authority under § 7003 to specifically target those states and operators who present an278

imminent and substantial endangerment to human health and the environment rather than institute the overly broad Subtitle C option in the Proposed Rule and unfairly and inefficiently punish states, operators of electrical generating units, and ultimately consumers.

As we noted in our prior comments, EPA ack nowledges that its existing authority under RCRA § 7003 gives it precisely the authority it needs to address any risks to human health and the environment associated with the disposal of CCRs [Footnote 34: 58 Fed. Reg. at 42,476 (“Considering industry’s tr end toward more protective waste management practices, the fact that State regulatory programs are generally adequate, and because Federal authorities exist that can address these wastes, EPA has concluded that current management practices and regulatory

c ontrols are adequate.”).]. We highlighted several cases in our prior comments in which courts have upheld EPA’s authority to act under § 7003 [Footnote 35: EME Comments at 105

- 106.] and further noted that courts have routinely held that the endangerment st andard of RCRA § 7003 is broad, [Footnote 36: See, e.g., United States v. Valentine, 856 F. Supp. 621, 626 (“Section 7003 should be construed in a liberal, rather than a restrictive, manner”).] requiring neither certainty nor proof of actual harm to procee d under the section [Footnote 37: Dague v. City of Burlington, 935 F.2d 1343 (2d Cir. 1991).]. This legal precedent confirms that the scope of § 7003 authority is broad and more than sufficient to mitigate the risks associated with each of the groundwater contamination cases cited in the Proposed Rule. The legislative history, which states that § 7003 is “a prospective act designed to prevent improper disposal of hazardous waste types in the future” further confirms that the section was intended to address exactly the types of risks associated with the cases cited in the proposed rule [Footnote 38: United States v. Waste Industries, Inc., 734 F.2d 159, 166 (4th Cir. 1984) (quoting H.R. Committee Print No. 96

- IFC 31, 96th Cong., 1st Sess. at 32 (1979) (“the E ckhardt Report”) (emphasis added).]. Further, the agency’s own guidance to its regional administrators instructed them to act under § 7003 where existing solid waste authorities prove inadequate [Footnote 39: U.S. EPA Office of Enforcement and Compliance A ssurance, Guidance on the Use of Section 7003 of RCRA, at 21 (October 1997).].

The Subtitle C option of the Proposed Rule would unnecessarily saddle states and generators that have implemented, enforced, and followed comprehensive regulatory frameworks wi th billions of dollars of unnecessary spending so that EPA can avoid conducting the “facilityspecific and

resource

- intensive” inquiry required by § 7003 at the 80 surface impoundments that EPA projects may be problematic. Indeed, as we noted above, environ mental groups have done much of the basic inquiry into the most problematic impoundments and most deficient state regulatory frameworks for EPA. The agency need simply follow up. Unfortunately, the NODA requests information to improve the Proposed Rule wit hout requesting information on whether the Subtitle C option of the Proposed Rule is the prudent course of action in the first place. This is particularly troubling in light of the fact that the EPA, the courts, Congress, and industry all recognize that RC RA § 7003 gives the agency adequate authority to address the human health and environmental concerns raised in the Proposed Rule and the NODA without adding undue regulatory and financial burden to those states and generators who have complied fully with
S ubtitle D’s standards.279

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0238

- 15 

### Organization 1 

### : Southern Company 

### Commenter 1 : Chris Hobson Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
B. State

- Specific Comments

Following are comments on the four states served by Southern Company’s service territory
utilities

1. Alabama

The NGO comments base their conclusions in part on allegat ions of various purported deficiencies in the regulation of CCBs in various states, including Alabama. [Footnote 46: See NGO Comments, supra note 20, at 18

- 19, 22, 25, 49.] The comments fail to take into account recent statutory and regulatory activity in Alabama. Under a statute enacted on May 25, 2011, the Alabama Department of Environmental Management (“ADEM”) is authorized to regulate the disposal of CCBs. The new statute revises the definition of “solid waste” to include CCBs, and it explicitly authori zes ADEM to implement a Subtitle D program for existing CCB facilities that complies with federal requirements when federal standards are promulgated. [Footnote 47: Ala.
Act. No. 2011

- 258 (2011) (amending Ala. Code §§ 22

- 27

- 2, 22

- 27

- 3).] Until new federal requirements take effect, any new CCB facility will be subject to ADEM’s Subtitle D permitting authority.280

ADEM has proposed new regulations to implement the statute. Most recently, as part of the rulemaking process, ADEM held a public hearing on November 9, 2011. The proposed amendments to ADEM’s regulations have not been controversial, and the rulemaking process is proceeding in an orderly fashion.

Accordingly, assertions in the NGO comments pertaining to various regulatory requirements (groundwater mo nitoring, liners, etc.) [Footnote 48: NGO Comments, supra note 20, at 25

- 36.] do not reflect current information. Under the new statute and regulations, any new CCB facility constructed in Alabama will be subject to Alabama’s current solid waste disposal s tandards, [Footnote 49: See generally Ala. Admin. Code r. 335

- 13

- 4

- .21.] even in the absence of new federal standards. Alabama’s solid waste program and regulations comply with EPA’s Subtitle D
standards.

The NGO comments also assert that Alabama and oth er states are not “expected” to adopt federal Subtitle D guidelines. [Footnote 50: NGO Comments, supra note 20, at 48

- 49.] That assertion is false and contrary to available information. First, as Southern Company notes above, [Footnote 51: See supra Part V I.A.2.] any inference drawn from state action or inaction in the absence of a federal standard suffers from an insurmountable logical flaw. The NGOs attempt to predict the likelihood of a state adopting federal standards by drawing inferences from what

sta tes did at a time when no federal standard was in place. That, however, is not the question for today. With federal regulations pending, the issue is what the states will do if and when EPA adopts Subtitle D standards. When the question is framed appropria tely, the answer as it pertains to Alabama is clear: In the past, after EPA has issued standards under Subtitle D, ADEM has responded by developing a program that complies with federal standards; submitting that program to EPA; receiving EPA’s approval; an d implementing the program effectively. That is the best indicator of the likely future response of ADEM with respect to a CCB program.

Second, the assertion that ADEM is “not expected” to implement a CCB program is contrary to
the comments ADEM submitte d to EPA in response to the proposed rule. ADEM stated as
follows:

The Department feels strongly that its implementation of the RCRA Subtitle D program over the past 20+ years more than demonstrates the adequacy of Alabama’s Solid Waste program. Under

ou r State statutory authority and the associated regulations, ADEM implements a program that meets, and in some ways, exceeds the technical and administrative requirements of both the existing Subtitle D regulations as well as the proposal. . . . It is our f irm contention that Alabama’s solid waste program is more than sufficient to adequately implement the regulatory requirements in the proposed Subtitle D option. [Footnote 52: Comments of ADEM, Doc. No.
EPA

- HQ

- RCRA

- 2009

- 0640

- 10227, at 3.]

These are not th e statements of an agency that plans to avoid appropriate regulatory action.

Third, the assertion is inconsistent with ADEM’s governing statute. ADEM is explicitly authorized to regulate any new CCB disposal facility under its existing Subtitle D program and to implement federal requirements for CCB disposal pursuant to federal requirements. [Footnote 53: See Ala. Code §§ 22

- 27

- 2, 22

- 27

- 3.]281

2. Florida

In its previous comments, Southern Company outlined Florida’s regulatory scheme addressing CCB dispos al and beneficial use and Florida’s “robust and effective” program for CCB regulation while supporting CCB beneficial use. [Footnote 54: Southern Company Comments, supra note 2, at Part VI.B.] Southern Company strongly objects to the statements, data, and characterizations in the NGO comments regarding Florida’s program and Florida’s inferred inability to responsibly regulate CCB management activities. Southern Company provides the following comments about Florida’s program in order to correct certain of th ese statements, data, and characterizations. Southern Company also refers EPA to the comments of the Florida Electric Power Coordinating Group, Inc. (“FCG”) and its response outlining the inaccurate and/or misleading statements or information contained in the NGO comments regarding Florida’s regulatory program. [Footnote 55: Gulf Power is a member of the Florida Electric Power Coordinating Group, Inc. The FCG is a non

- profit association consisting of twenty

- eight (28) investor

- owned, municipally

- owned, and cooperatively

- owned electric utilities engaged in the business of providing the majority of electric power to the public in the State of Florida.]

a. Background

Florida’s Solid Waste Management Rule [Footnote 56: Chapter 62

- 701, F.A.C.] comprehensively addresses solid waste management and disposal in the state. Florida’s Solid Waste Management Rule has been endorsed by EPA through the federal agency’s approval of Florida’s program under Subtitle D of RCRA for municipal solid waste landfills (“MSWLF”) in Florida. The rule applies to the management of all solid waste (including industrial waste like CCBs) but contains few specific requirements that would distinguish industrial solid waste from other types of solid wastes.

In the 1990’s, FDEP attempted to clarify the disposal requirements for industrial solid wastes. The effect of the FDEP rulemaking at that time was to apply Florida MSWLF requirements to all industrial solid waste disposal facilities. That rule, however, also contained procedures for

spec ific facilities or industry groups to seek relief from all or certain of the MSWLF requirements. On behalf of its members, the FCG submitted such a request and provided data in support. FDEP granted the FCG’s request noting that: 1) Class I landfill (i.e., MSWLF) standards would not automatically apply to these facilities; 2) these disposal facilities would continue to be evaluated on a case by case basis; and 3) FDEP anticipated initiating rulemaking to address industrial waste disposal.

Thus, design and operational criteria for new industrial waste disposal facilities (such as CCB landfills) are established on a case

- by

- case basis, though FDEP staff typically refers to Florida’s Solid Waste Management Rule as a starting point. Indeed, FDEP’s written dete rmination concerning the FCG’s request specifically provided that “[w]hile Class I landfill standards will not automatically apply, some or all of these standards may be required in individual cases.” [Footnote 57: See Letter from FDEP to Thomas DeRose (Oc tober 10, 1994) (included as Attachment B to these comments).] In every case, FDEP requires owners/operators of CCB management units to provide reasonable assurance that such units will not cause pollution and282

violation of FDEP water quality standards.

W hile FDEP does not have a separate regulatory program specifically addressing CCB disposal, Florida does effectively regulate the disposal of CCBs under its existing statutory and regulatory framework. Indeed, in its own comments, FDEP confidently (and app ropriately) asserts that it “believes, with existing state laws, it is appropriately regulating the disposal of CCRs as solid waste in Florida.” [Footnote 58: See FDEP Comments, Doc. No. EPA

- HQ

- RCRA

- 2009

- 0640

- 6846.1, at 3 (Nov. 18, 2010).] This is not stat e agency hubris. This is fact demonstrated by FDEP’s decades long experience in comprehensively regulating solid waste activities in the state (including CCB management), its EPA

- approved MSWLF program, and its implementation of a groundwater protection pr ogram that has been in place for more than 25 years.

b. Groundwater Monitoring

In the NGO comments, Florida is included in a grouping of seven states that purportedly exempt

on

- site or mono

- fill disposal from mandatory groundwater monitoring. [Footnote 59: NGO Comments, supra note 20, at 26, Table 2.] This is false. Florida boasts a comprehensive regulatory program for the protection of Florida groundwater resources. That program was developed in the early 1980s, recognizing Florida’s heavy reliance on groundwater resources for potable drinking water and other uses. As a matter of course, CCB management units authorized by Florida power plant site certification orders and conditions or permits and authorizations issued by FDEP (e.g., industrial wastewate r/NPDES permits, solid waste management permits), include extensive groundwater monitoring and reporting requirements for CCB management units and related activities. [Footnote 60: See also RR. 62

- 520.600; 62

- 701.510, F.A.C.]

Similarly, the NGO comments include Florida in another group of seven states that allegedly exclude or exempt CCB surface impoundments from monitoring requirements. [Footnote 61: NGO Comments, supra note 20, at 26, Table 3.] This is also false. As Southern Company has noted previousl y, CCB surface impoundments are also regulated under power plant site certification orders and conditions or NPDES permits. [Footnote 62: Southern Company Comments, supra note 2, at 183, 188.] Those orders or permits typically require groundwater
and/or su rface water monitoring requirements pursuant to applicable FDEP rules. [Footnote 63:
See Chs. 62

- 520; 62

- 621; 62

- 701, F.A.C.]

c. Liners and Leachate Collection Systems

It is important to re

- emphasize that, while FDEP MSWLF liner and leachate collection system requirements are not automatically applicable to CCB landfills, nothing prohibits FDEP from requiring such systems for CCB management facilities. In particular, for many years, FDEP has routinely required the installation of liners including double synthetic geomembrane liners, clay liners, and pozzolanic liners for CCB management units. Moreover, several Florida electric utilities have constructed, or are currently in the process of constructing new CCB landfills or expansions of existing CCB landf ills with liners and leachate collection systems. FDEP notes in its comments on EPA’s proposed rules, that it “intends to develop a new rule to update and consolidate our requirements for managing indus58trial waste including CCRs.” [Footnote 64:
See FDEP Comments, supra note 58, at 2, 3.] Florida electric utilities understand that this283

rulemaking will likely involve FDEP’s establishment of specific liner and leachate collection system requirements for new CCB management units and expansions to existing CCB management units. Thus, the NGO’s comments improperly characterize FDEP’s rules as providing for an exemption from liner and leachate collection systems. [Footnote 65: See NGO Comments, supra note 20, at 28

- 30, Tables 8

- 11.] Whether or not to require such systems for CCB management units has always been within the discretion of the FDEP and, as stated previously, recent trends reflect FDEP’s routine imposition of liner and leachate collection system requirements for new CCB management units and expansions to existing CCB management units.

d. Daily Cover and Dust Control Measures

Florida adequately handles daily cover and dust control. As in Georgia, infra, daily cover is traditionally required to control disease vectors associated with putrescible waste , fires, odors, blowing litter, and scavenging. Daily cover is not required where, as with CCBs, these risks are not present. As for dust control measures, Florida’s air rules regulate unconfined particulate matter (“fugitive dust”), and impose and impleme nt the PM10 and PM2.5 National Ambient Air Quality Standards (NAAQS). Chapter 62

- 296, F.A.C., which sets stationary source emission standards, limits visible emissions from any activity to 20 percent opacity, R. 62

- 296.320(4)(b), F.A.C., and requires reaso nable precautions to prevent emissions of unconfined particulate
matter. R. 62

- 296.320(4)(c) (providing examples), F.A.C. Chapter 62

- 213, F.A.C., the Title V Operating Permit Program, implements these provisions in every Title V permit issued in
Florida. M oreover, Chapters 62

- 4, 62

- 210 and 62

- 212, F.A.C., prohibit FDEP from issuing any air permit that would cause or contribute to a violation of any NAAQS.

3. Georgia

Georgia has a solid waste regulatory program, which includes CCBs, implemented by the
Ge orgia Environmental Protection Division (“EPD”). Georgia’s CCB program includes permitting, liner, and groundwater monitoring controls for landfills similar to those under the Subtitle D and Subtitle D Prime options. The applicable Georgia rules were origi nally drafted to handle municipal solid waste

– a waste which is both less predictable and controllable than CCBs. Because the municipal solid waste rules were later broadened to encompass industrial wastes, Georgia’s existing solid waste rules are more th an adequate to manage CCBs.

a. Georgia Power’s Experience with the State of Georgia Program

Presently, Georgia Power has eight active CCB landfills permitted by EPD under Georgia’s solid waste regulatory framework. Georgia Power also has four closed CC B solid waste landfills

– two of which had been ash ponds

– under the supervision of EPD. Over approximately the last twenty years, as current ash pond capacity has decreased and new disposal sites were needed for the byproducts of new air pollution contro l equipment, Georgia Power has, in accordance with the Georgia regulations, permitted additional CCB solid waste disposal facilities. Active ash ponds with existing capacity, which are permitted under EPD’s NPDES program, effectively manage the remaining C CB volumes. It is of utmost importance that the existing active ash ponds, some with a remaining life of twenty or more years, remain operational to manage CCBs284

until the ash ponds are full. In Georgia, all ash ponds must be closed in accordance with Georg ia’s solid waste rules.

b. Groundwater Monitoring

Several comments in documents subject to the Notice improperly characterize Georgia’s groundwater monitoring requirements. For example, the NGO Comments claim that many states, including Georgia, “eithe r require no monitoring of their numerous ash ponds or monitoring only after the ponds have been closed” and that “[m]onitoring data from state files in Georgia were so minimal that no assessment of impacts could be made.” [Footnote 66: Earthjustice and Si erra Club, In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment, Aug. 26, 2010, Doc. No. EPA

- HQ

- RCRA

- 2011

- 0392

- 0006, at ix.] Earthjustice and Sierra Club also claim that some states, including Georgia, “provide for variance of monitoring requirements” [Footnote 67: NGO Comments, supra note 20, at 26 Table 2; see id. at 39 Table 25.] for CCB landfills and “have no groundwater monitoring requirements” for CCB surface impoundments. [Footnote 68: Id. at 26 Table 3; see i d. at 41 Table 26.] The NGOs indicated that some states “do not require a minimum of three downgradient wells and one upgradient well at CC[B] landfills.” [Footnote 69: Id. at 28 Tables 6

- 7.] The NGOs also argue that Georgia allows a variance for post

- clos ure groundwater monitoring requirements for CCB landfills [Footnote 70: Id. at 36 Table 23.] and does not require post

- closure groundwater monitoring for CCB surface impoundments. [Footnote 71: Id. at 36 Table 24.]

As emphasized above, [Footnote 72: See supra Part VI.A.2.] the fact that not all states require groundwater monitoring at all stages (e.g., during operation and closure) does not bolster the NGOs’ argument that a Subtitle D regulatory program would be inadequate and thus that EPA should adopt a Subtitle C regulatory program. Again, the only effective method to analyze whether states, including Georgia, will adopt regulations consistent with Subtitle D regulations, in the event EPA adopts a Subtitle D program, is to analyze states’ responses to S ubtitle D standards in the past. The NGO Comments inappropriately rely upon states’ current regulation of CCBs when no Subtitle C or Subtitle D regulations have been in place at the Federal level.

Georgia EPD’s authority and experience under its existing regulatory program does, in fact, provide assurances that the state will continue to assume responsibility for the oversight of groundwater monitoring and related functions at CCB facilities. EPD has expertise in detection, assessment, and closure of disp osal sites. Pursuant toGeorgia’s Hazardous Sites Response Act (“HSRA”) program, which became effective in Georgia in 1992, EPD has the authority to identify, assess, and remediate properties that potentially pose a risk to the environment. Since
the mid

- 1 990s, several Georgia Power plant sites have undergone HSRA environmental investigations that included groundwater testing of various metal constituents in the vicinity of ash ponds. Those HSRA investigations of Georgia Power facilities, including groundwa ter monitoring near ash ponds, resulted in findings of compliance with the appropriate HSRA Risk
Reduction Standards.

Further, the solid waste landfill permits for Georgia Power’s eight active solid waste landfills (including some permits in the applicat ion process) have groundwater monitoring requirements, which includes all Georgia Power landfills constructed since approximately the year 2000. Three285

of Georgia Power’s four closed CCB solid waste landfills also have groundwater monitoring.

With regard to downgradient wells, the State of Georgia requires adequate monitoring consistent with Subtitle D requirements, which is almost always more stringent than three downgradient
wells.

c. Daily Cover and Dust Control Measures

The NGO Comments indicate th at a few states, including Georgia, “provide for variance of daily cover requirements” [Footnote 73: NGO Comments, supra note 20, at 31 Table 12.] and “allow for variance of dust control requirements” for landfills and surface impoundments. [Footnote 74:
I d. at 31 Tables 13

- 14.] Daily cover has been a requirement to control disease vectors associated with putrescible waste, fires, odors, blowing litter, and scavenging. CCBs do not present these risks. Georgia landfill permits contain a general condition req uiring that “the landfill shall be operated in such manner as to prevent air, land, or water pollution, and public health hazards.” [Footnote 75: Georgia Rule 391

- 3

- 4.07(l).] Dust controls from surface impoundments are covered under Clean Air Act fugitive dust controls.

d. Run

- Off Controls and Construction in Water Table

The NGO Comments assert that several states, including Georgia, “do not require run

- off control at CC[B] landfills.” [Footnote 76: NGO Comments, supra note 20, at 32 Table 15.] This

sta tement is incorrect. All landfill permits in the state of Georgia require run

- on and run

- off controls. [Footnote 77: Georgia Rule 319

- 3

- 4.07(3)(i).] The NGO Comments asserted that some states, including Georgia, “place no restriction on the location of CC[ B] landfills with respect to the water table.” [Footnote 78: NGO Comments, supra note 20, at 32 Table 17.] This statement is also incorrect. Georgia regulations do not allow ash to be placed in the water table. Georgia requires that the waste be separated from seasonal high groundwater by five feet. [Footnote 79: Georgia Rule 391

- 3

- 4

- .05(1)(l(3).]

e. Closure

The NGO Comments indicate that only one state program reviewed included a mandatory requirement that final cover for CCB disposal sites include a c omposite element and that “[i]mpermeable covers are essential.” [Footnote 80: NGO Comments, supra note 20, at 34.] The State of Georgia requires adequate cover, including requirements that

— [t]he final cover system must be designed and constructed to: (1) Have permeability less than or equal to the permeability of any bottom liner system or natural subsoils present, or a permeability no greater than 1 x 10

- 5 c./sec, whichever is less, and (2) Minimize infiltration through the closed MSWLF unit by the
use of an infiltration layer that contains a minimum of 18

- inches of an earthen material, and (3) Minimize erosion of the final cover by the use of an erosion layer that contains a minimum 6

- inches of earthen material that is capable of sustaining native plant g rowth. [Footnote 81: 40 C.F.R. § 258.60(a). Georgia Rule 391

- 3

- 4

- .11(1)

- (2) incorporates section 258.60 by reference and applies the regulation “to all solid waste handling facilities.”]

The NGO Comments also indicate that among other states, Georgia “al low[s] for a variance of286

final cover requirements for CC[B] landfills” [Footnote 82: NGO Comments, supra note 20, at 35 Table 21; see also Table 27.] and has “no final cover requirements for CC[B] surface impoundments.” [Footnote 83: Id. at 35 Table 22; se e also Table 27(second Table 27).] The State of Georgia requires closure cover permeability restrictions consistent with those for current Subtitle D regulations for landfills. [Footnote 84: Georgia Rule 391

- 3

- 4

- .11(1)

- (2) (incorporating by reference 40 C. F.R. § 258.60).]

f. Financial Assurance

The NGOs assert that some states, including Georgia, “have no financial assurance requirement for CC[B] surface impoundments.” [Footnote 85: NGO Comments, supra note 20, at 34 Table 20.] The State of Georgia requ ires financial assurance of CCB impoundments when closed as landfills. [Footnote 86: Georgia Rule 391

- 3

- 4

- .13.] This requirement encompasses closure and post

- closure care costs.

4. Mississippi

Mississippi has a robust and comprehensive regulatory schem e for permitting CCB facilities, as explained more fully in Southern Company’s prior comments on EPA’s proposed rules. [Footnote 87: Southern Company Comments, supra note 2, at Part VI.D.] Southern Company objects to the inference in the NGO Comments that Mississippi’s regulatory program contains “serious and widespread deficiencies.” [Footnote 88: NGO Comments, supra note 20, at 17.] Mississippi effectively manages the disposal and beneficial use of CCBs in order to adequately safeguard health, safety and welfare, thereby ensuring the protection of human health and the
environment.

a. Background

The Mississippi Department of Environmental Quality (“MDEQ”), Environmental Permits Division currently oversees CCB disposal in the state through Mississippi’s Solid Waste Disposal Law and its implementation of solid waste management regulations, which comprehensively address solid waste management and disposal in the state. [Footnote 89: Miss Code §§ 17

- 17

- 1 to 17

- 17

- 67; Nonhazardous Solid Waste Management Regul ations, SW

- 02.] Contrary to the NGO Comments, MDEQ’s permitting process for solid waste landfills is comprehensive, and the permitting process for solid waste management facilities is rigorous, requiring, at a minimum, siting analyses, zoning approvals, op erational plans, groundwater monitoring, corrective action planning and management, and long

- term closure planning. The CCB solid waste landfills in Mississippi have been sited under stringent state siting criteria that
are consistent with Subtitle D stand ards. All of Mississippi Power’s CCB solid waste landfills are operated in accordance with applicable regulations and in a manner that is protective of
human health and the environment.

b. Groundwater Monitoring

As with Florida, the NGO Comments incorr ectly place Mississippi in a category that exempts

on

- site or monofill disposal from groundwater monitoring. [Footnote 90: NGO Comments, supra287

note 20, at 26, Table 2] MDEQ requires owners and operators of CCB dry storage facilities to incorporate and impl ement groundwater monitoring and corrective action plans into their solid waste permits, and these plans must consider any potential risks posed to human health and the environment. [Footnote 91: MDEQ Non

- Hazardous Solid Waste Management Regulations, MDEQ SW

- 2, IV.D.2.a] Requirements of groundwater monitoring plans include, and will continue to require, analyses of the proximity of human and environmental receptors, design of the unit, age of the unit, types and quantities of wastes disposed, and the resour ce value of any underlying aquifers. [Footnote 92: Id.] In addition, monitoring is required throughout the active life and post

- closure periods until an owner demonstrates that there is no potential for migration of constituents from the facility to nearby aquifers [Footnote 93: Id.].

The NGO comments letter also incorrectly include Mississippi in an additional group that eliminates the need for surface impoundments to have monitoring requirements. [Footnote 94: NGO Comments, supra note 20, at 26, Table 3 .] In Mississippi, surface water impoundments are regulated under NPDES permits, and these permits require operators of such surface impoundments to have monitoring plans in place pursuant to the applicable MDEQ regulations.

The NGO comments letter goes further by implying that semi

- annual sampling is insufficiently protective of health and the environment. [Footnote 95: NGO Comments, supra note 20, at 26.] However, MDEQ regulation, under an EPA approved program, specifically require that “sampling proced ures and frequency must be protective of human health and the environment.” [Footnote 96: SW

- 02, IV.D.3.c.] Further, an additional measure for protection of human health and the environment is the requirement that groundwater monitoring can only be suspend ed if certified by a “qualified groundwater scientist and approved by the Department ...”. [Footnote
97: SW

- 02, IV.D.1.e.] MDEQ has no plans to eliminate current monitoring requirements at existing CCB impoundments.

With regard to monitoring wells, the NGO s incorrectly imply that monitoring in Mississippi is insufficient just because MDEQ does not specifically require three downgradient wells. [Footnote 98: NGO Comments, supra note 20, at 28, Tables 6

- 7.] MDEQ requires monitoring
consistent with Subtitle D requirements and further includes that monitoring systems must be installed with a sufficient number of wells at appropriate locations and depths to yield results that are protective of human health and the environment. [Footnote 99: SW

- 02, IV. D.2.a.]

c . Liners and Leachate Collection Systems

MDEQ requires that new landfills and lateral expansions of existing landfills be constructed with a composite liner and a leachate collection system. For example, Plant Daniel bottom ash pond is lined with a synth etic, composite liner which meets specifications required by MDEQ. The slurry wall at Plant Watson’s ash pond penetrates up to 65’ down to and is connected to the clay layer beneath the pond and encircles the entire pond. These facilities are governed and operated under the NPDES program.

d. Dust Controls

The NGOs assert that Mississippi is one of several states that does not require dust controls at288

CCB landfills. [Footnote 100: NGO Comments, supra note 20, at 31, Table 13.] Once again, this

statement is false. Owners of all landfills in Mississippi, including CCB landfills, must ensure that they do not violate any applicable requirements developed under the Mississippi State Implementation Plan (“SIP”), which is approved by EPA. [Footnote 101: SW

- 02, I V.A.5a.] The Mississippi SIP has specific provisions adopted for the purpose of preventing, abating, and controlling air pollution caused by air contaminants being discharged into the atmosphere as particulates or combinations thereof. [Footnote 102: Air E mission Regulations for the Prevention, Abatement, and Control of Air Contaminants; APC

- S

- 1.] Further, management requirements, such as dust controls, are specifically referenced in that “no person shall cause or permit the handling or transporting or stor age of any material in a manner which allows or may allow unnecessary amounts of particulate to become airborne.” [Footnote 103: APC

- S

- 1, Page 8.]

e. Closure

Once again, the NGOs inadequately characterize closure requirements for CCB disposal sites in Mississippi by attempting to imply that Mississippi closure requirements are inadequate because it only requires a soil final cover for CCB landfills. [Footnote 104: NGO Comments, supra note 20, at 35, Table 21.] MDEQ requires a final cover system that is designed to minimize infiltration and erosion, and this final cover must be comprised of an erosion layer underlain by an infiltration layer. [Footnote 105: SW

- 02, I.V.E.2.] Furthermore, closure requires that any required leachate system remain until an op erator can affirmatively determine that there is no longer any threat to human health and the environment.

Additionally, the NGO contends that post

- closure monitoring be at least 30 years. [Footnote 106: NGO Comments, supra note 20, at 35, Table 21.] Thi s is exactly the minimum requirement that MDEQ places on facilities sited in the state: post

- closure care must be conducted for a minimum of 30 years and during such time period the operator must maintain the integrity and effectiveness of any final cover, prevent run

- on and run

- off from eroding or damaging the final cover and comply with all groundwater protection standards. [Footnote 107: SW

- 02, IV.D.3.] The State of Mississippi requires closure to be consistent with those for current Subtitle D regulatio ns.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussio n on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA ha s responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the289

technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0238

- 18 

### Organization 1 

### : Southern Company 

### Commenter 1 : Chris Hobson Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: [Please see Attachment B for a letter from Mary Jean Yon from the Solid Waste Section to the Florida Department of Environmental Protection]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0239

- 10 

### Organization 1 

### : Earthjustice, et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.2 7.1.2.1 7.1.2.2 

### Comment Excerpt Text: IV. Adequacy of State Programs (NODA Section VIII)

A. Response to comments submitted by the Association of State and Territorial Soil Waste Management Officials

The comments submitted by the Association of State and Territorial Solid Waste Management Officials (“ASTSWMO”) [Footnote 46: See EPA

- HQ

- RCRA

- 2009

- 0640

- 8787.] in response to the EPA’s proposed rulemaking conclude that existing state waste management progra ms are sufficient to regulate CCR and, thus, that CCR need not be listed as a special waste or regulated under the RCRA subtitle C regulations. However, in defense of these conclusions, ASTSWMO offers unsupportable assumptions and presents an inaccurate pi cture of state regulatory programs and the environmental protections guaranteed thereunder.

ASTSWMO admits that, in many states, CCR surface impoundments are not subject to the requirements of solid waste management statutes and regulations. [Footnote 47: Id. at 24.] Nevertheless, and despite this admitted lack of regulation under state waste programs, ASTSWMO posits that informal coordination between other state agencies and waste program290

implementing agencies is “good evidence” that states would adopt na tional waste management standards for CCR in the event that such standards are promulgated. The comments point to no facts that would support such a conclusion.

ASTSWMO claims that the “State enforcing entities” in 42 out of 42 states have the authority t o require remediation of CCR surface impoundments, in 43 out of 44 states have the authority to require repair and maintenance during operation, in 41 out of 43 states have the authority to require the closure of CCR surface impoundments, and in the “major ity” of states have the authority to require minimum standards for impoundment design and engineering, leachate collection, gas collection, groundwater and leachate monitoring, financial assurance, post

- closure care and maintenance, removal, and replacemen t of water supply. [Footnote 48: Id. at 25.] As an initial matter, whether or not a state has “the authority” to impose certain requirements on surface impoundment operators does not guarantee that a state ever will exercise that authority or that the publ ic can depend on state regulation to protect against the threats posed by improper CCR disposal. Indeed, ASTSWMO cannot claim (and has not attempted to do so) that a majority of states require all of the aforementioned regulatory safeguards. We have review ed the laws and regulations of the top ten CCR

- generating states

— PA, TX, OH, WV, KY, IN, FL, GA, NC, NM, and aside from Pennsylvania, none of these states require groundwater monitoring or leachate collection for all CCR surface impoundments, regardless of whether such impoundments are regulated by state solid waste management or other regulatory programs, e.g., water programs.

Moreover ASTSWMO’s survey results

– for which the Association gives no details and does not identify which states or which “enforc ing entities” are included in its count

– are irrelevant to whether the disposal of CCR is adequately regulated under state waste management programs. The figures offered serve only to obscure the actual lack of CCR surface impoundment regulation across th e nation. While other “enforcing entities” might regulate wastewater discharges from surface impoundments, for example, ASTSWMO offers no evidence that these entities require all of the safeguards necessary to ensure adequate protection of human health and the environment from the dangers of CCR disposal. Such disposal must be regulated by waste management agencies that possess the relevant expertise regarding design standards, groundwater and leachate monitoring, and remediation. While ASTSWMO recommends, “EPA should continue to build upon existing State programs through use of the Subtitle D approach,” [Footnote 49: Id.] it fails to identify any solid waste management programs on which EPA could
build.

The comments Earthjustice and others submitted in Nov ember 2010 in response to EPA’s proposed rulemaking (“Earthjustice 2010 Comments”) presented a thorough analysis of existing state regulations in 37 states, which states comprise over 98 percent of the coal ash generated nationally. [Footnote 50: One note of clarification, Attachment 4 to the Earthjustice 2010 Comments indicates that Wisconsin exempts existing CCR landfills from groundwater monitoring requirements and mistakenly cites section 507.02 of the State’s Natural Resources regulations. Wisconsin on ly grandfathers CCR landfills from design standards, see WI ADC § NR 504.05(1), not from groundwater monitoring requirements. Whether groundwater monitoring will be required is a question left to the discretion of state regulators. See WI ADC s NR §
507.04 .] That analysis revealed that, contrary to ASTSWMO’s undocumented claims, the majority of states fail to require essential safeguards for CCR surface impoundments.291

Earthjustice analyzed state laws and regulations for the same safeguards specifically claim ed by ASTSWMO to be required in the majority of states. Our findings are reiterated below, and citations to specific state laws are contained in Attachment 7 to these comments, which we submit again to support our legal analysis. [NOTE from ICF analyst: At tachment 7 provides info on landfills; Attachment 8 provides info on surface impoundments]

1. Requirement for composite liner

Of the 37 states we examined, only three required composite liners for all new CCR surface impoundments.

[See original comment for figure with data from Earthjustice 2010 Comments analysis of state laws and regulations]

2. Requirement for leachate collection system

Only five out of 37 states examined required leachate collection systems for all new CCR surface impoundments.

[Se e original comment for figure with data from Earthjustice 2010 Comments analysis of state laws and regulations]

3. Requirement for groundwater monitoring.

Only two out of the 37 states examined required groundwater monitoring during CCR surface impoundme nt operation. Of those two states, only Louisiana required groundwater monitoring for thirty years after unit closure.

[See original comment for figure with data from Earthjustice 2010 Comments analysis of state laws and regulations]

4. Requirement for f

inancial assurance

Only 12 states out of the 37 states examined required financial assurance for CCR surface impoundments.

[See original comment for figure with data from Earthjustice 2010 Comments analysis of state laws and regulations]

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is292

also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0240

- 6 

### Organization 1 

### : Tri

- State Generation and Transmission Association, Inc. 

### Commenter 1 : Barbara Walz Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Adequacy of State Programs

EPA has provided a substantial amount of information in the NODA regarding the adequacy of CCR management programs implemented by the states. EPA has received comments by many of the individual state agencies that currently implement CCR management programs, as well as the Association of State and Territorial Solid Waste Management Officials (ASTSWMO) and the Environmental Council of States (EC OS). Each of these organizations have strongly expressed their support for a Subtitle D or D Prime program to manage CCRs and the need to have individual states involved in directing the management of those programs. EPA has also included in the NODA, a re port from Earthjustice and others that criticize the programs implemented by states and the need for a Subtitle C CCR management program. The Earthjustice report is a shallow review of the states’ programs that doesn’t give adequate credit to reasonable pr ograms based on unreasonable criteria.

Tri

- State believes that the claims of the individual states and their representative organizations are reasonable assertions of well managed CCR regulatory programs to which EPA should give
due consideration as it wo rks to determine if and how best to regulate CCRs in the future. The comments of the states and their representative organizations send a strong message from EPA partner agencies that CCRs are effectively managed by most states’ programs, and that the stat es need to continue to manage CCR programs at the state level. In contrast, the Earthjustice report seems to exaggerate every possible option to a worst case scenario, depicting states as incapable of managing CCR disposal programs in a manner that is prot ective of public health and the environment. Earthjustice’s underlying assumption is that the only way an individual state CCR regulatory program could provide adequate protection for human health and the environment is if293

it adopts all of Earth justice’s ideal regulatory controls. States with a CCR management program that deviates from the Earthjustice ideal program in any respect are characterized as ineffective.
Tri

- State believes that this type of analysis is unreasonable and should not be considered by EPA in their decision making on the outcome of the proposed rule.

The Subtitle D approach for solid waste management has existed since 1979 without significant programmatic problems being identified by EPA. State programs typically meet or exceed the 40 CFR Part 257 national standards for solid waste disposal facilities. In many respects, many state programs already meet or exceed much of the EPA proposed CCR national standards. Based upon the history of implementation of the solid waste management progra m by the states, upon adoption under Subtitle D, national CCR standards would be established quickly, uniformly, and nationwide, allowing states to continue enforcement under their state regulations with the ability
to file citizen suits where state enforc ement authority is limited. EPA should work with states to identify issues with the implementation of CCR program components, and provide support to those few states to enhance their ability to address Subtitle D or Subtitle D Prime program requirements so they can voluntarily enact authorities and adopt compatible state program requirements to provide for appropriate public health and welfare protections in a reasonable, uniform, and balanced approach.

Tri

- State believes that the states where it owns or o perates coal fired generation sources have appropriate mechanisms in place to provide for an adequate program to manage CCRs. The States of Colorado, Wyoming, New Mexico, and Arizona all have programs that meet or exceed the requirements of a Subtitle D pr ogram, and it is fully protective of public health and the
environment

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the comm enter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support ce rtain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusio ns on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.294



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0253

- 1 

### Organization 1 

### : State of New Hampshire Department of Environmental Services 

### Commenter 1 : Michael Guilfoy Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: We specifically are commenting on the document by Earthjustice et. al., identified as Docume nt ID No. EPA

- HQ

- RCRA

- 2009

- 0640

- 6315, hereinafter referred to as the Document. The Department wishes to correct numerous inaccuracies stated in the Document as it relates to CCR management in the State of New Hampshire. The Department will limit its commen ts to those inaccuracies and will not comment on summary tables or other conclusions drawn within the
Document.

New Hampshire is referred to 30 times within the Document. Of those 30 references, there are 18
assertions that are incorrect. The inaccuracie s are significant; giving the impression that CCR is either not regulated or inadequately regulated in New Hampshire. In fact, CCR landfills and surface impoundments are regulated in a Subtitle D

- like manner in New Hampshire.

Response: The Agency acknow ledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is ref erred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not r esponded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no fina l conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0253

- 6 

### Organization 1 

### : State of New Hampshire Department of Environmental Services 

### Com menter 1 : Michael Guilfoy Commenter Type: State Government Classification: Substantive Comment Category:295

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: In closing, the Department asserts that CCR is managed in a way protective of human health and the environment in New Hampshire. This assertion is based on New Hampshire’s regulations, which require the management of CCR similar to Subtitle D in almost all respects, itself proven to be protective.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the di sposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is
also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exc lusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the
techn ical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of thos e programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0254

- 6 

### Organization 1 

### : Dominion Resources Services, Inc. 

### Commenter 1 : Pamela Faggert Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: IV. New analyses of state programs

Dominion has reviewed the additional data regarding the adequacy of state programs as a catalyst for man agement of CCRs as a Subtitle C hazardous waste. There is information (EPA

HQ

- RCRA

- 2009

- 0640

- 6315) available for comment that outlines in detail the variability in state CCR management practices. The argument is made that due to this variability and the ab sence of Federal assurance that CCRs are managed in a manner protective of the environment and human health, that these materials should be regulated as a Subtitle C hazardous waste. We do not understand nor do we agree with this conclusion. The presence o f variability amongst state programs is not an argument to regulate these materials as a Subtitle C waste; this determination296

should be made on the characteristics of the materials and not on their management options. As
stated in Dominion's comments to th e original rulemaking proposal dated November 17, 2011, we support the "Subtitle D Prime" option, with modifications, as the best path for establishing a Federal program for regulation of CCRs. We further support allowing state regulatory agencies
to admin ister the Federal Subtitle D program to avoid any duplication of Federal and state
efforts.

Many states have strong and established solid waste programs that require the proper management of solid wastes, including CCRs, to prevent adverse impacts on huma n health and the environment. For example, Virginia's Waste Management Act is an EPA approved municipal solid waste (MSW) program (a RCRA Subtitle D program). Dominion is subject to the Virginia program, which includes stringent siting requirements for sol id waste management units to protect critical environmental and societal receptors such as wetlands, surface waters, drinking water sources, residences, and healthcare facilities. There are also stringent design, operational, monitoring, reporting, and clo sure requirements that ensure proper protection of the environment throughout the lifetime of the solid waste management unit. As an example of state requirements that are protective of human health and the environment, we recently permitted a new CCR
land fill at our Virginia City Hybrid Energy Center facility in the Town of St. Paul, Virginia. Under the Virginia Solid Waste Management regulations, Dominion designed and installed a best practice solid waste landfill with a multi

- layer liner system and a lea chate collection and monitoring system to ensure protection of groundwater and the surrounding environment. Dominion also installed a series of groundwater monitoring wells and an underdrain collection system to further ensure protection of groundwater. We are also required to implement a detailed Operations Plan that includes stringent inspection and monitoring requirements

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussio n for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency i s promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, beca use EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state

pro grams because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0255

- 1 

### Organization 1 

### : North Dakota Departmen t of Health 

### Commenter 1 : Scott Radig297

Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The following are comments on rules proposed by the U.S. Environmental Pr otection Agency (EPA) to regulate coal combustion residues (CCRs) under the Resource Conservation and Recovery Act (RCRA) and the subsequent Notice of Data Availability. We are commenting specifically on incorrect information and misrepresentations about s tate CCR regulatory programs in comments submitted by Earthjustice, Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, and Physicians for Social Responsibi lity. This group will be collectively referred to as "Earthjustice" in this document. This same information on state programs is summarized in an Earthjustice publication titled State of Failure: How States Fail to Protect Our Health and Drinking Water Fro m Toxic Coal Ash, which can be found on the web at: http://earthjustice.org/sites/default/files/StateofFailure.pdf. We also wish to discuss the effectiveness of our state program that has regulated CCRs for approximately the last 30 years.

The state of N orth Dakota strongly believes coal combustion waste facilities merit appropriate regulation; however, the comments and report described above clearly misrepresent North Dakota's CCR regulatory program. In the early 1980s, the North Dakota Department of Hea lth (NDDoH) began active regulation of coal combustion wastes, working with companies to close or upgrade facilities in unsuitable locations and actively worked with power companies to transition to dry fly ash management. The state required investigation of groundwater conditions and recognized there were impacts which necessitated action. The fact that there is public documentation in state records demonstrates that the state was taking action. Sites that have impacted groundwater have either been upgrade d or closed and disposal operations moved to sites with better geology, engineering and monitoring.

In the early 1990s, the North Dakota solid waste rules for CCRs were revised to follow the
framework of the Federal Solid Waste Rules found in 40 CFR Part s 257 and 258, which include Location Standards and requirements for Facility Operation, Design, Groundwater Monitoring and Corrective Action, Closure/Postclosure Care and Financial Assurance. In addition to the NDDoH, the state permitting process includes the North Dakota Geological Survey and the North Dakota State Water Commission in reviewing site suitability of facilities and the North Dakota Public Service Commission if the proposed location is within a former mine area. The
NDDoH also coordinates wit h other government agencies, local planning, zoning and health officials and includes opportunity for public comment. North Dakota facilities are routinely inspected and monitored.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the298

technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0255

- 10 

### Organization 1 

### : North Dakota Department of Health 

### Commenter 1 : Scott Radig Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.4.1 7.3.1 

### Comment Excerpt Text: We believe our solid waste rules provide a sound framework for effective regulation. North Dakota works to ensure that each solid waste structure for CCRs is effectively reg ulated and constructed in accordance with generally accepted engineering and environmental standards for structural integrity and waste containment. If structures are found to be deficient, such structures will be corrected or closed. The existing North Da kota solid waste rules and permit process have been proven to be protective and provide the most expedient method for addressing environmental protection and mitigation issues. EPA should defer to state programs with proven
track records where the state ha s better knowledge of local conditions.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the dispo sal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is
also referred to Uni t IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclus ively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the
technica l requirements, EPA has responded to comments relating to the accuracy of the facts299

involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those

p rograms and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0255

- 11 

### Organization 1 

### : North Dakota Department of Health 

### Commenter 1 : Scott Radig Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 8.9 

### Comment Excerpt Text: In conclusion, the NDDoH believes that Earthjustice's comments and report on the adequacy of state CCR regulatory program s is deeply flawed and contains numerous factual errors and misrepresentations. The comments and report also alleges several "new" groundwater damage cases in North Dakota, which we have already responded to as largely inaccurate and misleading.
The author s may have done poor, cursory research, or alternatively, they may simply be attempting to advance their own agenda. Regardless, the comments and reports by Earthjustice, et al., are not accurate and should not be considered as valid by EPA in the consider ation and promulgation of new CCR regulations. We request that EPA independently evaluate existing state programs as to their effectiveness in protecting public and environmental health. North Dakota is willing to assist you in this area and would welcome a visit to our Department to discuss the state solid waste and CCR regulations.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0255

- 12 

### Organization 1 

### : North Dakota Department of Health300



### Commenter 1 : Scott Radig Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
References: North Dakota Department of Health, "Coal Combustion Waste

- North Dakota Regulatory Perspective", 2002; http:/ /wVvw.ndhealth. gov/wm/Publications/CoalCombustion Waste RegulatoryPerspecti ve.pdf

North Dakota Administrative Code, Article 33

- 20, Solid Waste Management and Land Protection, http://www.legis.nd.gov/information/acdata/html/33

- 20.html

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0255

- 2 

### Organization 1 

### : North Dakota Department of Health 

### Commenter 1 : Scott Radig Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 5.5.2 5.6.2 

### Comment Excerpt Text: As shown in the public record, while past groundwater impacts have occurred from pre

regulation activities, no operating facility poses a significant risk to a downgradient public or private water supply system and no facility poses a significant threat to public safety. There have been no new groundwater impact cases from CCR facilities permitted after the current rules were promulgated in the early 1990s.

Response: The Agency acknowledges and appreciates the comment. The commente r is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentati on and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste mana gement plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D r egulation. For301

example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded t o many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0255

- 3 

### Organizat ion 1 

### : North Dakota Department of Health 

### Commenter 1 : Scott Radig Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The comments and report described above submit ted by Earthjustice, et al., clearly misrepresent North Dakota's CCR regulatory program. Their assertion is that if an option exists in state rules for an alternative then it is equivalent to not having a rule at all. This is simply incorrect and
misleadin g. They make this assertion for requirements for groundwater monitoring, liner construction, leachate collection, dust control, runoff control, separation distance to the water table, financial assurance, final cover, and postclosure care and monitoring. F ollowing is a review and explanation of these errors in Earthjustice's comment letter and report. Please note that under North Dakota solid waste management rules, CCRs are a "special waste."

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0259

- 1 

### Organization 1 

### : Environmental Integrity Project (EIP)302



### Commenter 1 : Eric Schaeffer Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Our comments respond to the submissions from state environmental agencies that were included
in the NODA docket.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation an d discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste managemen t plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has no t, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0259

- 3 

### Organization 1 

### : Environmental Integrity Project (EIP) 

### Commenter 1 : Eric Schaeffer Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
Whi le states express a clear preference for regulation of coal ash under “Subtitle D” of the Resource Conservation and Recovery Act (RCRA), many of the comments recognized the need for federal standards, and made useful recommendations that we support. For ex ample,

- A number of states recommended that EPA establish a schedule for phasing out the use of unlined surface impoundments, including Kentucky, Massachusetts, North Carolina, Tennessee, Virginia, and Washington. As explained in comments from Virginia’s Department of Environmental Quality, “Allowing unlined surface impoundments to continue operating303

indefinitely does not provide protection to human health and the environment.”

- Many states also supported post

- closure care and financial assurance requir ements, in part to assure that the taxpayers are not stuck with the tab for cleanup long after closure.

EIP appreciates that some state and local agencies have tried to establish reasonable regulations for CCW disposal, and EPA ought to consider these ef forts in development of its final rule. At the same time, the state comments help illustrate the confusion, conflicting standards, and gaps in coverage that make plain the need for federally enforceable standards for this huge waste
stream. Our comments be low respond to specific statements made in comments from state environmental agencies.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0262

- 2 

### Organization 1 

### : Florida Electric Power Coordinating Group, Inc. 

### Commenter 1 : James Vick Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: I. The Earthjustice Comments Regarding Florida’s Regulation of CCR Management are Wrong.

The Earthjustice Comments contain a number of inaccurate conclusions regarding Florida’s regulatio n of CCR landfills and surface impoundments. It is true that Florida’s regulations do not contain requirements specifically applicable to CCR landfills and surface impoundments. However, one cannot stop there and expect to have a comprehensive understandin g of Florida’s304

regulatory program as it pertains to CCR management.

The Earthjustice Comments are wrong. Florida has effectively regulated the management and disposal of CCRs for over twenty years. Since 1973, power plants in Florida have been subject to comprehensive multi

- media environmental regulations and permitting requirements. Pursuant to Chapter 403, Florida Statutes (“F.S.”), the management and disposal of CCRs at coal

- fired power plants is authorized either by power plant site certification order s and conditions thereunder issued by Florida’s Siting Board (comprised of Florida’s Governor and Cabinet) under Part II of Chapter 403, F.S., or permits and authorizations issued by the Florida Department of Environmental Protection (“FDEP”) (e.g., indust rial wastewater or NPDES permits, solid waste management facility permits). These regulatory authorizations generally draw from the requirements applicable to solid waste management facilities set forth in Chapter
62

- 701, Florida Administrative Code (“F.A .C.”), and include extensive groundwater monitoring and reporting, and other operational requirements such as dust controls, runon and run

- off controls, and closure requirements. As EPA noted in the preamble to the Proposed CCR Rules, Florida’s “PPSA certi fication contains the same substantive requirements as would otherwise be imposed by other permits.” 75 Fed. Reg. 35152 (June 21, 2010). A full discussion of Florida’s regulatory program and how it has been applied to CCR landfills and surface impoundments is set forth in the FCG’s comments to EPA’s Proposed Rulemaking for the Identification and Listing of Special Wastes: Disposal of Coal Combustion Residuals from Electric Utilities (“Proposed CCR Rules”). EPA Docket No. EPA

- HQ

- RCRA

- 2009

- 0640

- 10498 (“FCG
Co mments”).

If the self

- proclaimed “comprehensive analysis” set forth in the Earthjustice Comments contains fundamental errors in relation to Florida’s regulatory program, it is reasonable to conclude that its review of other state programs is similarly fla wed. Other states, like Florida, may not have specific regulations for the management of CCRs. However, to assume that such units are not adequately regulated on this fact alone is naive. Such states, like Florida, may impose liner and groundwater monitori ng requirements under separate regulatory authorities. Florida regulates CCRs as an industrial solid waste and many of the liner and groundwater monitoring provisions found in Florida’s approved Subtitle D program are typically applied to CCR landfills and surface impoundments as part of the PPSA certification process and conditions of certification issued thereunder. See 75 Fed. Reg. 35152. Therefore, the actual number of states that are imposing liner and groundwater monitoring requirements likely is much higher than what is represented in the Earthjustice Comments.

a. CCR Landfills and Surface Impoundments in Florida are Subject to Extensive Groundwater Monitoring.

A prime example of the inaccuracy of the Earthjustice Comments is the conclusion that

gro undwater monitoring of CCR landfills and surface impoundments is not required in Florida. The Earthjustice Comments are wrong. All facilities with CCR landfills and surface impoundments in Florida have extensive groundwater monitoring systems in place that are subject to routine monitoring and reporting requirements, and include upgradient, downgradient and compliance wells. As noted above, these requirements are imposed through power plant site certification orders and conditions thereunder issued by Flori da’s Siting Board under Part II of305

Chapter 403, F.S., or permits and authorizations issued by FDEP. As a result, there have been no reported off

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

b. Liner Systems and Leachate Collection Systems are Increasingly Required for CCR Landfills and Surface Impoundments.

Florida’s Solid Waste Management Rule, Chapter 62

- 701, F.A.C., addresses the management of all solid waste. In 1994, FDEP clarified that: (1) Class I landfill (i.e., municipal solid waste landfill) standards would not automatically apply to industrial waste (such as CCRs); (2) industrial waste disposal facilities would continue to be evaluated on a case

- by

- case basis; and (3) FDEP anticipated initiating rulemaking to address industrial waste disposal.2 See Letter from FDEP to Thomas DeRose (Oct. 10, 1994) and Letter from FDEP to William Preston (Feb. 5, 1996), Attachment “B.” Thus, design and operational criteria for new indus trial waste disposal facilities, such as CCR landfills, are established on a case

- by

- case basis; though FDEP staff typically imposes criteria consistent with Florida’s Solid Waste Management Rule. While there currently is no specific regulatory requirement for CCR landfills to be lined, new or expanded landfills have been constructed with liner and reachate collection systems. Several FCG members have constructed, or are currently in the process of constructing, new CCR landfills or expanding existing CCR l andfills with liners, leachate collection systems, and augmented groundwater monitoring systems consistent with the requirements applicable to municipal solid waste landfills. Many of the liners that have been installed or will be installed are double HDPE geomembrane liners [Footnote 3: Florida’s double liner system is different from EPA’s double liner system requirements for hazardous waste landfills, required by RCRA § 3004(o)(4)(A), and detailed in 40 C.F.R. sections 264.301 (c) and 264.302.] that were approved by EPA as part of its overall approval of Florida’s solid waste program in 1994. FDEP’s evaluation of these liner systems over the years has shown that they are more protective of the environment than the composite liner system set forth in the Pr oposed CCR Rules.

c. Dust Controls are Imposed.

In addition to facility

- specific requirements that may be imposed through power plant site certification orders and conditions, Florida’s air rules regulate unconfined particulate matter (aka, fugitive dust ), and impose and implement the PM10 and PM2.5 National Ambient Air Quality Standards (NAAQS). Specifically, Florida’s Stationary Source

- Emission Standards Rule, Chapter 62

- 296, F.A.C., limits visible emissions from any activity to 20 percent opacity in
Rule 62

- 296.320(4)(b), and requires (and provides examples of) reasonable precautions to prevent emissions of unconfined particulate matter in Rule 62

- 296.320(4)(c). Florida’s Title V Operating Permit Program, Chapter 62

- 213, F.A.C., implements these provi sions, which are included in every Title V permit issued in Florida. Additionally, Chapters 62

- 4,62

- 210 and 62

- 212, F.A.C., prohibit FDEP from issuing any air permit that would cause or contribute to a violation of any NAAQS.

d. Florida Effectively Regula tes CCR Landfills and Surface Impoundments.

The rules and regulations referenced above demonstrate that, while FDEP currently does not306

have a separate regulatory program specifically addressing CCR management and disposal, Florida does effectively regulat e the disposal of CCRs under its existing statutory and regulatory framework. In its comments to the Proposed CCR Rules, dated November 18, 2010, FDEP similarly asserted that CCRs are being appropriately regulated under existing state laws. EPA
Docket No. EPA

- HQ

- RCRA

- 2009

- 0640

- 6846. This fact is demonstrated by FDEP’s decades

long experience in comprehensively regulating solid waste activities in the state, its EPA

approved municipal solid waste landfill program, and its implementation of a groundwater prot ection program that has been in place for more than 25 years. The success of Florida’s regulatory program is exemplified by the fact that there have been no reported off

- site impacts to drinking water resources in Florida associated with the operation of C CR landfills or surface impoundments. For these reasons, the FCG strongly opposes additional regulation of CCR disposal by EPA which is unnecessary and unwarranted in Florida

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation a nd discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste manageme nt plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0262

- 6 

### Organization 1 

### : Florida Electric Power Coordinating Group, Inc. 

### Commenter 1 : James Vick Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
ATTACHMENT B

[See original comment for Attachment B: Letters from Deparment of Environmental Protection]

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for307

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulg ating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EP A is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state

programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0263

- 1 

### Organization 1 

### : South Carolina Department of Health and Environmental Control 

### Commenter 1 : Daphne Neel Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Specifically, the Department is writing to respond to information contained in Comments of EarthJustice, Environmental Integrity Project, Sierra Club, Natural Resources Defense council, Southern Alliance for Clean Energy, Southern Environmental Law Center, Physicians for Social Responsibility ("EJ Comments " or "Comments") Docket ID No. EPA

- HQ

- RCRA

- 2009. The Department is concerned about the accuracy of certain information in the Comments about South Carolina's regulation of CCRs. The current South Carolina regulatory framework, as described in
more detail b elow, should be evaluated as a proper measure of state program adequacy.

"State Regulations are Grossly Deficient in the Majority of States"

The basic premise of the EJ Comments is that "most states fail to require essential safeguards for
landfills and surface impoundments disposing of coal ash, including liners, groundwater monitoring, leachate collection, dust controls and financial assurance" and that "[T]hese regulatory failures have left the public exposed to pollution that is dangerous and illegal. " (pp. 3

- 4). This is an inaccurate overgeneralization of the states' regulatory programs, and an exaggerated statement of the potential threat to the public's health and the environment. To the contrary, South Carolina has a comprehensive solid waste manag ement program that regulates CCR landfills, and has several other programs that address the management of surface impoundments. Combined, they provide a protective regulatory framework for the management
of CCRs in South Carolina.308

South Carolina currently regulates 12 coal

- burning power plants that manage CCRs through the use of landfills, surface impoundments, and beneficial use determinations. As the public health and environmental protection agency for South Carolina, the Department utilizes a number of state and federal authorities to ensure the proper management of CCRs. These include: the South Carolina Solid Waste Policy and Management Act and regulations; the South Carolina Pollution Control Act; and the South Carolina Hazardous Waste Management Act . These authorities are described in greater detail in comments submitted by South Carolina in response to EPA's June 21, 2010 Federal Register Notice and Request for C o mments on the Proposed Rule (Docket I.D.
No.: EPA

- HQ

- RCRA

- 2009

- 0640).

Response: The Ag ency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The comme nter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect sta tes to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to signific ant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to t he accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0263

- 10 

### Organization 1 

### : South Carolina Department of Health and Environmental Control 

### Commenter 1 : Daphne Neel Commenter Type: State Government Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: We recognize the difficulty of any effort to accurately summarize state activity on a subject as complex as the management of CCRs. While such a summary may provide a snapshot, it does not fully account for the breadth or depth of a state's regulatory program. It is inaccurate to collectively portray states' activities as inadequate, deficient, or "grossly deficient" without having the benefit of a deeper understanding of every s tate's applicable statutes, regulations, policies, and practice. Likewise, demonstrated deficiencies of one or a few states should not justify preempting state authorities to regulate CCRs.309

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state soli d waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts
involved in the dam age cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment N umber: EPA

- HQ

- RCRA

- 2011

- 0392

- 0265

- 10 

### Organization 1 

### : Department of Environmental Quality, State of Wyoming 

### Commenter 1 : John Corra Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Com ment Excerpt Text: In comments submitted to EPA November 19, 2010, Earthjustice, Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, and Physicians for Social Responsibility c oncluded that state programs do not and cannot adequately protect human health and the environment from the dangers posed by CCR disposal. The Wyoming Department of Environmental Quality strongly disagrees with this conclusion and much of the evidence thes e groups cite to support their
conclusion.

Rather than submit a lengthy analysis of each of the assertions made by Earthjustice, et al, Wyoming will address these assertions in general and specifically as they apply to Wyoming regulations. Overall the as sertions are broad and fail to recognize that it is absolutely appropriate to take site specific factors into consideration when determining which measures are needed to protect human health and the environment at a given disposal site.

Response: The Agen cy acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The comment er is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in310

this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect state s to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0266

- 1 

### Organization 1 

### : Department of Environment and Conservation, State of Tennessee 

### Commenter 1 : Garey Mabry Commenter Type: State Government Classification: Non

- substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: As our request for a review extension on the comment period was denied, we have not had the opportunity to fully analyze and respond to EPA's request for comments on the 168 documents posted on EPA's docket website associated with this notice. Our staff had been completing comments on EPA's Definition of Solid Waste, July 22, 2011 Federal Register Notice, Docket ID
No. EPA

- HQ

- RCRA

- 2010

- 0742 and provided those comments on October 19, 2011. We would like to officially document that due to the lack of an adequate period to review an extensive amount of complex data, we sincerely regret that we are unable to provide comments on this issue by the prescribed deadline of today's date.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 1 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Ed Thamke Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: In these comments, ASTSWMO directly addresses the criticism of State programs for the management of coal combustion residua ls (CCR) in the Earthjustice Comments. However, there is simply not enough time to analyze and comment on every claim that Earthjustice makes about each aspect of individual State programs. Nor is there time to assess the validity of Earthjustice’s311

relianc e on the reports and studies that are cited to support claims made in their Comments.

Before addressing some of the specifics, there are several recurring themes in the Earthjustice Comments that warrant notice first. The problems outlined below are impo rtant because they cast a shadow of doubt over the reliability of the Comments. The following themes are pervasive enough that the end user of the information presented in Earthjustice’s Comments should closely scrutinize it, keeping in mind the deficienci es described below.

1. A statement based on a cited reference is incorrect:

Earthjustice Comment:

“The 2010 RIA, prepared by the EPA’s Office of Resource Conservation & Recovery ... updated the 2005 DPRA Report’s examination of the regulatory programs of 34 states.” [Footnote 1: Earthjustice Comments, page 18]

Fact Check:

The 2005 data is not updated. The tables identifying the State regulatory requirements are identical in the two reports.

The tables are identified as Exhibits 2

- 1 through 2

- 3 in the 2005 report and Exhibits E

- 1 through
E

- 4 in the 2010 report.

2. A conclusion that Earthjustice draws from a referenced report contradicts the conclusion in the report itself:

Earthjustice Comment:

“As EPA’s own reports have revealed, the discreti on given to state regulators and the variances that they subsequently grant may significantly compromise the safety of a waste disposal unit.” [Footnote 2: Earthjustice Comments, page 23]

Fact Check:

The DOE/EPA Report expresses confidence in the exerc ise of discretion:

“A detailed analysis of variance requests in 65 permits in 16 states indicates that state regulators have not issued variances unless a sound scientific basis supports the request.” [Footnote 3: Doe/EPA Report, page 67]

3. The conten t in a cited reference is exaggerated:

Earthjustice Comment:

“In its May 2000 Regulatory Determination, EPA expressed significant concern about the lack of312

adequate state regulation of CCR disposal.” [Footnote 4: Earthjustice Comments, page 17] Citing to the Notice of Regulatory Determination on Wastes from the Combustion of Fossil Fuels (May 2000) [Footnote 5: 65 FR 32214, 32218]

Fact Check:

The only related comment at the cited page in the reference does not express a significant

concern:

“Our o ngoing review will include consideration of: .... (3) the adequacy of existing state and/or federal regulation of these wastes.” [Footnote 6: 65 FR 32214, 32218]

Furthermore, the following statement on page 32217, the page previous to the page cited in the 2000 Determination, contradicts the Earthjustice description of the referenced document:

“given most of the states’ current regulatory capabilities and the evidence that basic controls are increasingly being put in place by the states...” [Footnote 7: 65 FR 32214, 32217]

4. Earthjustice interpretation of information is too literal:

Earthjustice Comment:

“For landfills, the 2006 DOE/EPA Report found that:

- No state surveyed requires a composite liner for all coal ash landfills.” [Footnote 8: Earthjus tice Comments, page 19]

Fact Check:

The DOE/EPA Report lists States with a composite liner requirement. For example:

“Missouri

- Utility waste landfill: Composite or clay liner meeting required thickness, compaction percentage, and hydraulic conducti vity specifications.” [Footnote 9: DOE/EPA Report, Table A.6., page 29]

In Earthjustice’s evaluation of program requirements, anything that is not mandatory is not considered a requirement. Because Missouri allows an alternative to a composite liner if

t echnical specifications are met, it is considered a State that does not have a composite liner requirement.

5. Earthjustice is inconsistent in the way that certain standards are used to form conclusions:

Earthjustice Comments:

1. “The 2006 DOE/EPA Re port’s conclusion that ‘improved disposal unit management practices and state application of environmental regulations appear to be occurring’ is based largely on .... a narrow sample of permitted new or expanded units in 11 states.” [Footnote 10: Earthjusti ce313

Comments, page 21]

2. The 2006 DOE/EPA reviewed permit variances in 9 States which Earthjustice finds sufficient to “reveal that when state law gives regulators discretion to waive basic safeguards such as liners and cover, the states use that discret ion liberally.” [Footnote 11: Earthjustice Comments, page 23]

Fact Check: In the first example, Earthjustice criticized the authors’ positive finding based on a review of a small number of States (11). In the second example, Earthjustice draws a sweepin g negative
conclusion based on a review of nine States.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D ru le for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is
also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to

comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspe cts of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 11 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Com menter 1 : Ed Thamke Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Statutory and Regulatory Revisions

Recently, States have advanced the regulation of CCR by statute or regulations. The Earthjustice State Review [from Earthjustice Comments “Earthjustice 2010 37

- State Review”] does not account for these developments, some of which occurred after its Comment s were submitted.314

Some of the States that have adopted changes are identified below.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for

pr omulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthe rmore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cas es to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 12 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Ed Thamke Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.4.1 

### Comment Excerpt Text: Earthjustice Prediction of States That Will Not Adopt Subtitle D Criteria Failed

In an elaborate evaluation, based in part on EPA’s analysis in the 2010 RIA, Earthjustice makes predictions about the likelihood of States adopting EPA’s June 21, 2010 Subtitle D proposal. The analysis is so convoluted and subjective that it is difficult to analyze. However, a critique of its method is not necessary, because the conclusions it draws about States have already been proved
inaccurate.

Response: The Agency acknowledges and appreciates the comm ent. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preambl e for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is315

also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into stat e solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts
involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comme nt Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 13 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Ed Thamke Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examin e Context Assigned/Due:



### Comment Excerpt Text: Statutory Revisions

Alabama is at the top of the list of States that Earthjustice predicts are not expected to Implement Subtitle D requirements. Alabama is the State that Earthjustice typically uses to characterize the deficiencies in State CCR programs. Earthjustice notes r epeatedly in their comments (at least six times [Footnote 41: Repetitive references to Alabama’s lack of regulation of coal ash in the Earthjustice Comments. Citations from Docket # EPA

– HQ

– RCRA

– 2009

– 0640

– 6315.: Pg. 19

- excludes all CCR from its definitio n of solid waste; thus, solid waste permits are not required for CCR disposal; Pg. 22

- excluded completely from regulation; Pg. 25

- exempt coal ash completely from regulation as a solid waste, leaving the disposal of CCR virtually unregulated; Pg. 25

- c ompletely exempt all or most of coal ash disposal from regulation; Pg. 26

- exclude CCR from the definition of solid waste; and Pg. 49

- no regulations whatsoever that apply to coal ash.] ) that Alabama law exempts CCR from regulation. The implication is t hat Alabama exemplifies the States’ reluctance to regulate CCR. Earthjustice recently identified Alabama as one of the 12 Most Dangerous States “representing the worst of the worst when it comes to coal

ash disposal.” [Footnote 42: “State of Failure: How s tates fail to protect our health and drinking water from toxic coal ash.” Earthjustice and Appalachian Mountain Advocates, August 17, 2011] In the report, which was published in August 2011, Earthjustice failed to acknowledge, or was unaware of, a signific ant change in Alabama’s law governing the regulation of CCR disposal.

On May 25, 2011, Governor Robert Bentley signed a law that removes the exemption for coal combustion by

- products from regulation as a solid waste. [Footnote 43: Alabama Act 2011

- 258,
H B50, amends Sections 22

- 27

- 2 and 22

- 27

- 3, Code of Alabama 1975, to remove an existing316

exemption from regulation for fly ash waste, bottom ash waste, boiler slag waste, and flue gas emission control wastes which result primarily from the combustion of coal or other fossil fuels at electric generating plants. The act also authorizes the regulation of these substances as a solid waste and, to the extent permissible under federal law, to allow beneficial uses of coal combustion by

- products as an alternative to disposal as part of any adopted state program. EFFECTIVE DATE: May 25, 2011 http://e

- lobbyist.com/gaits/text/286329] Not only did Alabama elect to regulate coal ash as a solid waste effective immediately, it specifically authorized the future adoption and implementation of a federal regulatory program for disposal
of CCR:

"Upon the adoption and implementation of a federal regulatory program to govern the disposal of coal combustion by

- products pursuant in whole or in part to Subtitle D of the Solid Waste Disposal Act, 42 U.S.C. §6941 et seq., the department is authorized to develop and adopt rules as necessary to implement a state regulatory program consistent with the federal requirements. Until such federal program requirements shall take effect, the dis posal of coal combustion by

products shall be subject to the applicable requirements of this article."

Earthjustice’s recent portrayal of Alabama as the worst State in its State of Failure report is unfounded, as is the characterization of States as being incapable and unwilling to regulate CCRs in a safe manner. Furthermore, it raises doubts about Earthjustice’s ability to evaluate the progress that States have made improving their CCR programs.

Regulatory Revisions

Maryland

- On December 1, 2008, Mar yland adopted a new Chapter to its regulations governing solid waste disposal. The Chapter, entitled Management of Coal Combustion Byproducts, governs the disposal of and prescribes requirements for permitting, construction, monitoring, etc. The regulation establishes specific criteria for granting a variance:

"The Department may grant a variance if the basis for the variance application is demonstrated to the satisfaction of the Department to:

(1) Provide equal or greater protection to prevent a releas e or discharge of coal combustion byproducts to the environment as would be provided by compliance with the regulation for which a variance is requested; (2) Conserve and protect the public health, the natural resources, and the environment of the State; and (3) Control pollution to at least the same extent as would be obtained by compliance with the regulation for which a variance is requested." [Footnote 44: COMAR 26.04.10.07]

Pennsylvania

– On December 11, 2010, Pennsylvania adopted comprehensive reg ulations for the storage, disposal and beneficial use of CCR. It is worth noting that the Background to the Final Rulemaking [Footnote 45: http://www.pabulletin.com/secure/data/vol40/40

- 50/2359.html] indicates that “the Department ... had several meetings wi th citizens representing Earthjustice and the Environmental Integrity Project.”317

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulg ating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases t o support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no fin al conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 14 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Ed Thamke Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.4.1 

### Comment Excerpt Text:

Iowa

- Iowa was in the process of developing a proposal to regulate coal ash disposal when EPA published the proposed rule on June 21, 2010. Consequently, Iowa postponed its rulemaking pending the outcome of the EPA regulatory proposal. [Footnote 46: E

- mail correspondence with Brian Tormey, Chief, La nd Quality Bureau, Iowa Department of Natural Resources, November 10, 2011]

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgatin g this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , t he commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant318

comments that relate to topics that are otherwise relevant to the final subtitle D r egulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded t o many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 16 

### Organiz ation 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Ed Thamke Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.2.2 

### Comment Excerpt Text:
COMMENT REGARDING THE BRIEF COMMENT PERIOD

The decision about federal regulation of CCR will have far

- reaching implications for State waste management programs. ASTSWMO has used the limited time of the comment period for the NODA to focus our response on one aspect, the adequacy of State programs, given the critical importance of this issue to our members. Our lack of comments regarding other aspects of the NODA, such as beneficial use, should not be interpreted as a lack of interest in those areas. On the contrary, the areas on which the NODA invit ed comment are of broad interest to our members. ASTSWMO was not able to provide comments as complete and comprehensive as we would have liked in light of the 30

- day comment period.

Response: The Agency acknowledges and appreciates the comment. The com menter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a prese ntation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise r elevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.319



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 17 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Ed Thamke Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context A ssigned/Due:



### Comment Excerpt Text:
CONCLUSIONS

The Earthjustice Comments drastically underestimate the adequacy of State coal combustion residuals management programs in two ways. The manner in which Earthjustice uses information from reports and studi es casts a shadow of doubt over the reliability of their Comments. The recurring themes in their comments include: drawing conclusions that contradict the conclusions in the reports themselves; exaggerating the content in a cited reference; interpreting re ferenced information incorrectly; and interpreting referenced information too literally. As a result, information about State programs is interpreted in a way that makes the programs appear to be less effective than actually reported. Another significant i ssue is that the methods that Earthjustice uses to evaluate State programs are unconventional. It is not obvious and it requires a lot of reading

- between

- the

- lines to understand that Earthjustice’s definition of a “program requirement” is one that is manda tory and does not allow for variances. Earthjustice’s interpretation is contrary to the statute that governs disposal

- the Resource Conservation and Recovery Act

– which provides in Section 3004(x) that specific characteristics of waste of disposal sites m ay be taken into account to modify certain requirements, such as liners and groundwater monitoring. The Earthjustice review of State programs did not include the many State management practices that extend beyond what is explicitly specified in State regul ations.

ASTSWMO places a very high priority on our relationship with our Federal EPA partners and we have always valued opportunities to interact and achieve solutions that are in the best interest of United States citizens for whom we serve. Few things have galvanized our organization as this proposed rulemaking. The notion that somehow States are incapable of performing our statutory responsibilities to protect human health and environment is inaccurate and, frankly, insulting. State regulators live, wo rk, and play where authority is applied and we not only have professional and ethical interests, but are morally vested in our land and communities.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
tech nical standards the Agency is promulgating in this rule. Furthermore , the commenter is320

also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D r egulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded t o many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 2 

### Organiza tion 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Ed Thamke Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Earthjustice Comments vs. the Referenced DOE/EPA Report

As noted previously, there is simply not enough time to perform a comprehensive critical analysis of Earthjustice’s comments. Five substantive problems were identified in a single paragraph (below) in which Earthjustice attempted to rely upon information in a technical report to substantiate its claims. This suggests that every paragraph in Earthjustice’s comments should be scrutinized to be certain that its claims hold up. However, to do so for a 10 2

- page Comment would require more time than was allotted for this response.

Side

- by

- Side Comparison of one paragraph (below) from the Earthjustice Comments vs. the Referenced DOE/EPA Report

Paragraph from Page 18

- 19 Earthjustice Comments:

“The 2006 D OE/EPA Report, which reviewed in detail the regulatory frameworks of 11 states, also documented continuing substantial deficiencies in state regulation of CCR management. The report found that between 1999 and 2005 none of the states surveyed tightened reg ulatory controls on CCR landfill disposal; that is, no state added specific requirements governing liners, groundwater monitoring, leachate collection, closure and postclosure, siting, and financial assurance since the 2000 Regulatory Determination. In add ition, the report identified four states (Alabama, Florida, Illinois, and Texas) that had relaxed certain CCR disposal controls since 1988. According to the EPA, these four states collectively were responsible for generating 26.4 million tons of CCR, appro ximately 19% of total CCR generation in 2005.”321

Earth Justice Comments: “The 2006 DOE/EPA Report ...documented continuing substantial deficiencies in state regulation of CCR management.” [Footnote 12: Earthjustice Comments, page 18] DOE/EPA Report (page fr om DOD/EPA Report): “the absence of details ... in most States reviewed in the 1999 RTC ... made it difficult to ascertain whether regulatory changes occurred ... for the majority of the States.” “it was possible to confirm that, during the period between
data c ollection for the 1988 RTC and 2005, the regulation of landfill liners, leachate collection systems, and groundwater monitoring tightened in most States reviewed.” [Footnote 13: DOE/EPA Report, page A

- 63]

Earth Justice Comments: “reviewed in detail the r egulatory frameworks of 11 States.” [Footnote 14: Earthjustice Comments, page 18] DOE/EPA Report (page from DOD/EPA Report): Detailed review was performed for only 5 States [Footnote 15: DOE/EPA Report, Table 18, page 41]

Earth Justice Comments: “The re port found that between 1999 and 2005 none of the states surveyed tightened regulatory controls on CCR landfill disposal.” [Footnote 16: Earthjustice Comments, page 18] DOE/EPA Report (page from DOD/EPA Report): “For the period between collection of data for the 1999 RTC and 2005, the change observed was neutral for either all or all but one State.” [Footnote 17: DOE/EPA Report, page 48] Wisconsin tightened the regulatory designation of CCW and Missouri tightened solid waste permitting. [Footnote 18: DOE/E PA Report, Table 22, page 49]

Earth Justice Comments: “no state added specific requirements governing liners, groundwater monitoring, leachate collection, closure and postclosure, siting, and financial assurance.” [Footnote 19: Earthjustice Comments, pag e 18] DOE/EPA Report (page from DOD/EPA Report): Two states added requirements not listed in the statement (regulatory determination of CCW and permitting); five States were not evaluated for closure and postclosure, siting, and financial assurance requir ements. [Footnote 20: DOE/EPA Report, Table 18, page 41 and Table 22, page 49]

Earth Justice Comments: The four states that relaxed controls “were responsible for generating 26.4 million tons of CCR, approximately 19% of the total CCR generated in 2005.” [Footnote 21: Earthjustice Comments, page 19] DOE/EPA Report (page from DOD/EPA Report): The eight States that tightened controls were responsible for generating 62 million tons of CCR, approximately 44% of the total CCR generated in 2005. [Footnote 22: DOE/EPA Report, Table 22, page 49 and 2010 RIA, Exhibit 3D]

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is322

also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to

comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain asp ects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 3 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Ed Thamke Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Earthjustice’s Reliance on Previous EPA Reports is Misplaced

Earthjustice relies on t hree EPA reports that describe aspects of State CCR disposal programs to document what it characterizes as “Substantial Gaps Persisting in State Regulatory Programs.” However, the conclusions drawn about State programs in pages 17

- 21 of the Earthjustice
Co mments are not supported by the information in the cited reports.

The first report is a joint study conducted by the Department of Energy (DOE) and the Environmental Protection Agency (EPA) to determine what progress had been made in CCR management pract ices since EPA’s 1999 Report to Congress (hereinafter, DOE/EPA Report [Footnote 23: 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. EP A

- HQ

- RCRA

- 2006

- 0796

- 0002)]). Both industry practices and State regulatory requirements were evaluated. The State regulatory evaluation was based on information collected
in 2005.

The second is a report prepared by DPRA Incorporated in 2005 (hereinafter, DPRA Report [Footnote 24: 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

- RCRA

- 2006

- 0796

- 0469)]) to per form a cost estimate for regulatory proposals for the management of CCR based on Part 258 which were under consideration by EPA. State regulations for the top 34 coal usage States were reviewed to determine what groundwater monitoring and environmental con trol requirements for CCR323

landfills and surface impoundments were in place. The existing State regulatory requirements were compared with the regulatory requirements in EPA’s proposal to determine the potential cost of implementing the proposed regulatory scheme.

The third report is the 2010 Regulatory Impact Analysis prepared by EPA (hereinafter, 2010 RIA [Footnote 25: Office of Res. Conservation & Recovery, U.S. EPA, Regulatory Impact Analysis for EPA’s Proposed RCRA Regulation of Coal Combustion Residu es (CCR) Generated by the Electric Utility Industry (Doc. No. EPA

- HQ

- RCRA

- 2009

- 0640

- 0003) (Apr. 2010), available at www.regulations.gov]) to evaluate the expected regulatory compliance costs, economic and environmental benefits, and potential impact on CC R beneficial use of EPA’s June 21, 2010 proposed regulation of coal combustion residual (CCR) disposal by coal

- fired electric utility plants. The analysis was based on the 2005 data collection about State regulatory program requirements that was used in th e DPRA Report.

None of the reports can be said to represent current “persisting” gaps because the information characterizing State programs was gathered 6 years ago or more. It is not accurate to assume that State CCR regulatory programs have been stagna nt for such a long period of time. If anything, the 2006 DOE/EPA report documented improvements in State programs over the study period:

“Therefore, from these data it was possible to confirm that, during the period between data
collection for the 1988 R TC and 2005, the regulation of landfill liners, leachate collection systems, and groundwater monitoring tightened in most States reviewed.” [Footnote 26: DOE/EPA Report, page 48]

Earthjustice also claims that a “finding” in the reports is “that state reg ulations routinely lack requirements for essential safeguards for the disposal of CCR in landfills and surface impoundments.” [Footnote 27: Earthjustice Comments, page 18] This suggests that the purpose of the reports was to evaluate whether the State regu lations provided “essential safeguards.” Neither report contained any subjective review or analysis of the regulations. The findings in both reports were limited to conclusions about the cost of regulatory proposals or changes in the regulation and impleme ntation of CCR disposal requirements. None of the reports drew any conclusions comparable to that which is claimed by Earthjustice.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamb le discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D r egulation. For example, because EPA is relying on the damage cases to support certain aspects of the324

technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded t o many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 4 

### Organiza tion 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Ed Thamke Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.2.2 

### Comment Excerpt Text: 2010 Regulatory Impact Analysis Is Not an “Updated” Reflection of State Regulatory Programs

Earthjustice mistakenly claims that the 2010 RIA updates the examination of State regulatory programs that was performed in the 2005 regulatory cost estimate (DPRA Report):

“The 2010 RIA, prepared by the EPA’s Office of Resource Conservation & Recovery, illustrates a shocking absence of CCR disposal requirements across the nation. The report updated the 2005 DPRA Report’s examination of the regulatory programs of 34 states.” [Footnote 28: Earthjustice Comments, page 18]

If Earthjustice was correct in sa ying that the 2005 data was updated for the 2010 report, it would indeed show an absence of improvements in CCR programs. However, the data was not updated for the 2010 report. Both the 2005 and 2010 reports contain tables listing the minimum State groundw ater monitoring criteria and minimum State engineering controls for CCR landfills and surface impoundments. The data presented is exactly the same in the 2005 report (Exhibits 2

- 1 through 2

- 3) and the 2010 report (Exhibits E

- 1 through E

- 4). In other words, the characterization of State programs was not updated and Earthjustice relies upon outdated information to characterize the current state of regulatory programs. It is not likely that Earthjustice deliberately misrepresented the facts. But failing to acc urately identify the nature of the data that it relied upon weighs heavily against the credibility of the Earthjustice Comments.

Additionally, the data collection is inaccurately portrayed as a survey, which might suggest a greater likelihood that the in formation was accurate if provided by the States. In fact, the information is based on a 3rd party review of State regulations, which alone may not accurately reflect program requirements, such as permit conditions. [Footnote 29: DPRA Report, page 2

- 2]

C ompounding the problem is the fact that Earthjustice’s summary of the raw data does not match the data itself. For example, Earthjustice reports that “85 percent of the states surveyed do not require groundwater monitoring and leachate collection at all su rface impoundments (both new and existing).” [Footnote 30: Earthjustice Comments, page 18] The implication is that only 15 percent of States require groundwater monitoring and leachate collection at surface325

impoundments. However, according to the reported data, 50 percent of the States required groundwater monitoring for surface impoundments and 41 percent required leachate collection. The Earthjustice summary of the raw data underestimates the adequacy of State programs by a significant margin.

Contrary to Earthjustice’s claim, the five year span between the 2005 and 2010 EPA reports cannot be used to characterize stagnancy in State CCR disposal programs because the data used in both reports are from the same point in time.

Response: The Agency acknowl edges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is refe rred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to

incor porate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the fina l rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 5 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Ed Thamke Commenter Type: State Government Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: 2006 DOE/EPA Report Documents More Improvements Than Deficiencies in State Programs

The third report that Earthjustice includes among the EPA analyses claimed to “reveal that states have not improved their regulations to close these gaps over the last decade” [Footnote 31: Earthjustice Comments, page 4] is the 2006 DOE/EPA report. It is correct to characterize this report as an analysis of State program requirements over time a nd can rightly be used to evaluate the progress that States have made. The initial objective of the study was to compare current CCR related regulatory requirements with comparable information from earlier reports. In light326

of this, the EPA revisited infor mation already available from other sources about current State CCW regulatory programs and concluded that its priority should be on updating how States were actually implementing programs, rather than simply gathering further information on State regulati ons.

Based on a re

- evaluation of a subset of State CCR disposal programs (11 out of 24 States) that had been evaluated previously in 1988 and 1999, the authors of the report concluded, in part, that “For the period between collection of data for the 1999 [Report to Congress] and 2005, the change observed was “neutral” for either all or all but one State in every category of regulatory control.” [Footnote 32: DOE/EPA Report, page 48] As noted previously, Earthjustice relies upon this single statement in a 286 page report to support the implication that States have not improved their CCR programs since 2000. From this, Earthjustice draws the conclusion that:

“no state added specific requirements governing liners, groundwater monitoring, leachate
collection , closure and postclosure, siting, and financial assurance since the 2000 Regulatory Determination.” [Footnote 33: Earthjustice Comments, page 18]

However, the DOE/EPA report is more subtle and does not support Earthjustice’s conclusion:

“This suggests that the absence of details about regulatory controls in most states reviewed in the 1999 RTC and its supporting technical documents made it difficult to ascertain whether regulatory changes occurred before or after data were collected for the 1999 RTC fo r the majority of the states.” [Footnote 34: DOE/EPA Report, page 48]

There are additional reasons for conclusion that the data in the report is insufficient to characterize the progress that States have made since 2000:

1. An evaluation of 11 States i s not enough to make any assumptions about the progress in all State programs;

2. The data is not current; it as collected at least six years ago and State programs have changed during that time.

The Earthjustice statement above is not the only selecti ve use of information in the report. For example:

Earthjustice report of a negative finding in the DOE/EPA Report:

“The report found that a substantial percentage of the large coal ash

- producing states evaluated
failed to mandate one of the most basic mechanisms for regulating waste disposal, namely the authority to permit CCR landfills and surface impoundments.” Earthjustice Comments, page 19

A related positive finding in the DOE/EPA Report:

“The comparisons suggest that in all eight of the areas o f regulatory control reviewed, more net disposable CCWs in the States reviewed underwent a tightening of regulatory controls than327

underwent a relaxation between the times data were collected for the 1988 RTC and for this report.” DOE/EPA Report, page 50

Earthjustice report of a negative finding in the DOE/EPA Report:

“Table 20 in the report identifies an additional three states (Colorado, Maryland, and Utah) that exempt on

- site CCR landfills from state solid waste permitting requirements.” Earthjustice Comments, page 19

A related positive finding in the DOE/EPA Report:

“Table 20 Identifies 30 States that Do Not Exempt On

- Site CCW Landfills from State Solid Waste Permitting Requirements.” DOE/EPA Report, page 50

Earthjustice report of a negative fin ding in the DOE/EPA Report:

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

- producing states evaluated failed to mandate one of the most basic mechanisms for regulating waste disposal, namely the authority to permit CCR landfills and surface impoundments. Earthjustice Comments, page 19

A related positive finding in the DOE/EPA Report:

The report identified only 2 states out of 38 that do not permit CCR landfills (Table 20) DOE/EPA Report, page 50

In general, Earthjustice selec tively uses only the facts that support its case.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is
also refer red to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pert ain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of th e technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.328



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 6 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Ed Thamke Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.1.1 7.1.1.2 7.1.2.1 7.1.2.2 7.1.2.4 7.1.1.3 7.1.2.5 

### Comment Excerpt Text: ASTSWMO Survey Revisited

Earthjustice cites select data from a survey that ASTSWMO performed and submitted to EPA prior to the June 21, 2010 proposal. Although it is in the Docket for the proposed rule, the survey data was not intended to be taken as official comments to the prop osal. As Earthjustice notes, “it is not clear from the ASTSWMO survey how many states responded, so these percentages may” [Footnote 35: Earthjustice Comments, page 19] provide an accurate picture of State regulatory requirements.

ASTSWMO has since reexa mined the data and the results are presented below. It should be noted that ASTSWMO and the States do not limit data presentation to those aspects of the programs that “look good.” While State programs are far better than portrayed in the Earthjustice
Comm ents, most States would agree that improvements can be made.

Based on information ASTSWMO received in response to a survey of States, following are answers to questions relevant to the adequacy of State programs:

How many States currently generate coal combustion residuals?

Forty

- five States generate coal combustion residuals (CCR). Not all States in which CCR is generated have disposal of CCR. CCR is disposed in only 42 of those States.

ASTSWMO does not have the information for 3 of the 42 States i n which CCR is disposed. Additionally, ASTSWMO may not have complete information for all 39 of the remaining States. For each question presented, the number of States that ASTSWMO has information for is provided with the information that is available for t hose States.

How many States require permits for disposal?

Thirty

- six out of 42 States require permits for disposal of CCR in landfills. Twenty

- nine out of 32 States require permits for the management of CCR in surface impoundments. In some States,
the permits may not be specifically for disposal of CCR in surface impoundments. In those cases, the permit may be for effluent discharge.

In the States that require permits for disposal of coal combustion residuals, what are the liner329

requirements?

ASTSW MO has information about landfill liner requirements for 38 States. In 27 of the 38 States, a bottom liner is required for landfills. Eleven of the 38 States do not require a bottom liner. Seven of those 11 States make a determination about requiring a bot tom liner on a case

- by

case basis. Liner requirements in 32 States are as follows: dual/multiple liner in 9 States; composite liner in 14 States; clay liner in 7; and 2 States require another type of liner. Variances are allowed in 23 States and exemptions in 7 States. Liner requirements apply to both existing and new lateral expansions of landfills in 13 States and only new expansions in 23 States.

ASTSWMO has information about surface impoundment liner requirements for 26 States. In 17 of the 26 States, a bottom liner is required for surface impoundments. Eleven of the 26 States do not require a bottom liner. Five of those States make a determination about requiring a bottom
liner on a case

- by

- case basis. Liner requirements in 19 States are as follows: d ual/multiple liner in 9 States; composite liner in 5 States; clay liner in 5 States. Variances are allowed in 7 States and exemptions in 3 States. Liner requirements apply to both existing and new lateral expansions of surface impoundments in 12 States and only new expansions in 9 States.

In each of the States that require permits for disposal of coal combustion residuals, what are the groundwater monitoring requirements?

ASTSWMO has information about landfill groundwater monitoring requirements for 39 States. In 34 of the 39 States, groundwater monitoring is required for landfills. Five of the 39 States do not require groundwater monitoring. Groundwater monitoring requirements apply to both existing and new lateral expansions of landfills in 32 States a nd only new expansions in 4 States.

ASTSWMO has information about surface impoundment groundwater monitoring requirements for 27 States. In 18 of the 27 States, groundwater monitoring is required for surface impoundments. Nine of the 27 States do not req uire groundwater monitoring. Six of those 9 States make a determination about requiring groundwater monitoring on a case

- by

- case basis. Groundwater monitoring requirements apply to both existing and new lateral expansions of surface impoundments in 20 Stat es and only new expansions in 3 States.

In each of the States that require permits for disposal of coal combustion residuals, what are the requirements or regulations regarding structural stability?

ASTSWMO has information about landfill structural sta bility monitoring requirements for 36 States. In 30 of the 36 States, structural stability monitoring is required for landfills. Six of the 36 States do not require structural stability monitoring. Structural stability monitoring requirements apply to both existing and new lateral expansions of landfills in 26 States and only new expansions in 7 States.

ASTSWMO has information about surface impoundment structural stability monitoring requirements for 25 States. In 16 of the 25 States, structural stability monitoring is required for surface impoundments. Seven of the 25 States do not require structural stability monitoring. Two of the 7 States make a determination about requiring structural stability monitoring on a case

- by

-330

case basis. Structural stability monitoring requirements apply to both existing and new lateral expansions of surface impoundments in 13 States and only new expansions in 3 States.

How is CCR disposal regulated in the States?

In many States, the authority to regulate surface impoundme nts is vested in other State agencies pursuant to statutes other than solid waste statutes. While it may be other State agencies that have enforcement authority for surface impoundments, 43 out of 44 States indicated that they coordinate with the enforcing entities to require that steps are taken to protect human health and
the environment.

Despite the concerns expressed in the proposed rule, the State enforcing entities in 42 out of 42 States have the authority to require remediation. The majority of Sta te agencies noted State authority for surface impoundments include repair and maintenance during operation (43 out of 44 States) and closure (41 out of 43 States), as well as:

- impoundment design and engineering

- leachate collection

- gas collection

- groundwater and leachate monitoring

- financial assurance

- post

- closure care and maintenance

- removal

- replacement of water supply

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of th e preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical st andards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EP A is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation . For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many co mments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.331



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0273

- 3 

### Organization 1 

### : Department of Natural Resources, State of Missouri 

### Commenter 1 : Alan Reinkemeyer Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
Due to the volume of informat ion contained in the NODA, Missouri has focused our review on the Earth Justice reports entitled: "Comments of Earth Justice Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern
Envir onmental Law Center, Physicians for Social Responsibility", and "State of Failure: How States Fail to Protect our Health and Drinking Water from Toxic Coal Ash". Enclosed are detailed comments that address specific points in the two reports.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0274

- 1 

### Organization 1 

### : SCANA Corporation 

### Commenter 1 : Jean

- Claude Younan Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Exam ine Context Assigned/Due:



### Comment Excerpt Text:
NEW ANALYSES OF STATE CCR PROGRAMS

SCE&G has reviewed the combined comments in the NODA submitted by Earthjustice,332

Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, and Physicians for Social Responsibility dated November 19, 2010 which attempt to identify gaps and deficiencies in state regulatory programs. Our review has found numerous errors and false and misleading claims in
the above

- referenced comments by Earthjustice et al (dated November 19, 2010) which attempt as they pertain to regulatory programs in South Carolina, where SCE&G is headquartered and operates. With regards to the above

- referenced comme nts by arthjustice et al (dated November 19, 2010), SCE&G offers the following comments with regards to the regulatory programs currently in

- place in South Carolina:

- On page 26, Table 2 (Is Groundwater Monitoring Mandatory at CCR Landfills?), the table states that South Carolina “exempt groundwater monitoring for CCR that meets certain toxicity criteria”. This claim is false. Per the current regulations, groundwater monitoring is required for any landfill (Class Two and Three landfills) which accepts CCR s, regardless of the toxicity criteria. All SCE&G CCR landfills include groundwater monitoring and reporting.

- On page 26, Table 3 (Is Groundwater Monitoring Mandatory at CCR Surface Impoundments?), the table states South Carolina “has no groundwater mon itoring requirements for CCR impoundments”. This claim is false. Per the current regulations, groundwater monitoring is required for CCR surface impoundments. All SCE&G CCR surface impoundments include groundwater monitoring and reporting.

- On page 28, T able 6 (Are a minimum of Three Downgradient Wells and One Upgradient Well Required at CCR Landfills?), the table states South Carolina does not require a minimum of three downgradient wells and one upgradient well at CCR landfills. While the current regula tions do not specify the numbers of wells, the regulations do require a sufficient number of wells to represent the quality of background groundwater and groundwater passing the downgradient relevant point of compliance. By way of example, all of SCE&G’s l andfills have at least one upgradient well and greater than three downgradient wells.

- On page 28, Table 7 (Are a minimum of Three Downgradient Wells and One Upgradient Well Required at CCR Surface Impoundments?), the table states South Carolina does not require a minimum of three downgradient wells and one upgradient well at CCR surface impoundments. While the current regulations do not specify the number of wells, the regulations do require a sufficient number of wells to represent the quality of backgr ound groundwater and groundwater passing the downgradient relevant point of compliance. By way of example, all of SCE&G’s impoundments have at least one upgradient well and greater than three downgradient wells.

- On page 29, Table 8 (Type of Liner Requir ed for New CCR Landfills), the table states South Carolina “exempt certain CCR landfill from liner requirements”. This claim is misleading. With the exception of generally inert materials (less than 10 times the MCL), current regulations in
South Carolina require new CCR landfills to have a minimum 2

- ft

- thick 1x10

- 7 cm/sec clay
liner.

- On page 29, Table 9 (Type of Liner Required for New CCR Surface Impoundments), the table states South Carolina “does not require liners at surface impoundments”. This claim is false.333

Current regulations in South Carolina require new CCR surface impoundments to have a liner system. The current regulations require a minimum liner permeability of 1x10

- 6 cm/sec, but also require impoundments using soils with low permeability rat es (e.g. clay) to demonstrate that the computed soil permeability rates of the liner are sufficiently low to preclude inappropriate seepage, which in practice has resulted in more stringent than 1x10

- 6 cm/sec liner systems. SCE&G’s surface impoundments con structed after 2001 include 2

- ft

- thick 1x10

- 7 cm/sec clay liners, and in some cases, composite liners (2

- ft

- thick 1x10

- 7 cm/sec clay liner + HDPE liner, or
2

- ft

- thick 1x10

- 5 + geosynthetic clay liner (GCL) + HDPE liner).

- On page 30, Table 10 (Is a Leach ate Collection System Mandatory CCR Landfills), the table states South Carolina exempt certain CCR landfills from leachate collection system requirements. This claim is misleading. With the exception of generally inert materials (less than
10 times the MCL ), current regulations in South Carolina require new CCR landfills to have a leachate collection system.

- On page 35, Table 21 (Type of Final Cover Required for CCR Landfills), the table states South Carolina “exempt certain CCR landfills from final cove r requirements”. This claim is false. Current regulations provide final cover requirements for all CCR landfills in South Carolina. In South Carolina, CCRs are required to be disposed in a Class Three landfill unless the CCRs test
less than 10 x MCL. In su ch cases, the material is considered generally inert and can be disposed in either a Class Two or Class Three landfill. Class Three CCR landfills require a composite final cover liner (low permeable clay + synthetic liner (HDPE, LLDPE, etc), overlying prot ective cover/erosion layer capable of sustaining vegetative growth, stormwater management system, and minimum and maximum final grades slopes to minimize infiltration and erosion. Class Two CCR landfills require a substantial soil cover, stormwater managem ent system, and minimum and maximum final grades slopes to minimize infiltration and erosion. All of SCE&G’s landfills final covers include liners, to include low permeable soil liners (1.5

- ft

- thick 1x10

- 5 or 1x10

- 6 cm/sec clay liners) for Class Two landfi lls and composite (2

- ft

- thick 1x10

- 7 cm/sec clay liner + HDPE liner) for Class Three landfills.

- On Page 36, Table 23 (Is 30 Years of Post

- Closure Groundwater Monitoring Required for CCR Landfills?), the table states South Carolina does not require post

- closure groundwater monitoring for 30 years at all CCR landfills. This claim is misleading. Current regulations require all Class Three CCR landfills to provide 30 years of post

- closure groundwater monitoring, and inert CCR Class Two landfills to provide 2 0 years of postclosure groundwater monitoring.

- On Page 39, Table 25 (Is Groundwater Monitoring Mandatory at CCR Landfills?), the table
states EarthJustice 2010 37

- State Review finds South Carolina does not require groundwater monitoring at CCR landfills (specifically, the table states No

– certain CCR exempt per TCLP). This claim is false. Per current regulations, all landfills receiving CCRs in South Carolina (Class Two and Three landfills) are required to perform groundwater monitoring. All SCE&G CCR
l andfills have been performing groundwater monitoring since the landfills were permitted.

- On Page 41, Table 26 (Is Groundwater Monitoring Mandatory at CCR Surface Impoundments?), the table states EarthJustice 2010 37

- State Review finds South Carolina doe s not require groundwater monitoring at CCR surface impoundments. This claim is false. Per334

current regulations, all surface impoundments receiving CCRs in South Carolina are required to perform groundwater monitoring. All SCE&G CCR surface impoundments per form groundwater monitoring.

- On page 43, Table 27 (What Type of Liner Are Required for CCR Landfills), the table states
EarthJustice 2010 37

- State Review finds South Carolina does not require liner at CCR landfills (specifically, the table states No

– c ertain CCR exempt per TCLP). This claim is misleading. With the exception of generally inert materials (less than times the MCL), current regulations in South Carolina require new CCR landfills to have a minimum 2

- ft

- thick 1x10

- 7 cm/sec clay liner

or appro ved equivalent.

- On page 45, Table 27 (What Type of Liner Are Required for CCR Surface Impoundments), the
table states EarthJustice 2010 37

- State Review finds South Carolina does not require liner at CCR surface impoundments (specifically, the table stat es No liner requirement). This claim is false. The current regulations require a minimum liner permeability of 1x10

- 6 cm/sec, but also require impoundments using soils with low permeability rates (e.g. clay) to demonstrate that the computed soil permeabili ty rates of the liner are sufficiently low to preclude inappropriate seepage, which in practice has resulted in more stringent than 1x10

- 6 cm/sec liner systems. SCE&G newer surface impoundments include 2

- ft

- thick 1x10

- 7 cm/sec clay liners, and in some

case s composite liners (2

- ft

- thick 1x10

- 7 cm/sec clay liner + HDPE liner, or 2

- ft

- thick 1x10

- 5 + geosynthetic clay liner (GCL) + HDPE liner).

- On Page 83, Table 34 (Summary of EIP/Earthjustice Damage Cases: Groundwater Transport to Surface Water) pertaining to SCE&G Wateree Station, the table states “fish in Wateree River have elevated levels of arsenic in tissue”. There is no valid evidence that Wateree Station is contributing to arsenic bioaccumulation in biota of the Wateree River. The fish tissue analysis results cited in the EIP/EJ report refers to fish sampling conducted by SCE&G in the Wateree River in 1999. The results of the sampling were reported in letters from SCE&G to SC DHEC dated May 26, 1999 and August 27, 1999. As reported in the referenced le tters, the results that included the channel catfish samples collected adjacent to the Wateree Station Plant with reported arsenic levels of 500 parts per billion are considered invalid due to significant variability in the size of fish collected from upst ream, adjacent to, and downstream of the plant. Subsequent testing of tissue samples taken from blue catfish caught upstream, adjacent to and downstream of the plant indicated similar arsenic concentrations in the tissue samples from all
three locations. M oreover, the levels of arsenic reported for all samples are within the range of concentrations reported in 1995 by Duke Power and in 1990 by the US Fish and Wildlife Service for various fish species collected from river systems in other areas of both North Carolina and South Carolina. In conclusion, arsenic levels in fish collected upstream and downstream of Wateree Station do not differ significantly from fish caught adjacent to Wateree Station indicating no measurable contribution from plant operations.

- On Page 83, Table 34 (Summary of EIP/Earthjustice Damage Cases: Groundwater Transport to Surface Water) pertaining to SCE&G’s Urquhart Station, the table states “Sampling of a replacement well positioned near a wetland showed that arsenic was greater tha n the 0.01 mg/L standard. This result indicates that groundwater adjacent to the wetland is contaminated”. The groundwater level at the subject well is typically 10

- 12 feet below natural ground surface;335

therefore, this wetland features does not act as a d ischarge feature for groundwater to surface water. No claim of surface water damage at this location is substantiated.

The South Carolina Department of Health and Environmental Control (DHEC) currently regulates the storage and disposal of coal combustion residuals in South Carolina. As addressed above, the current regulations in South Carolina are comprehensive and are protective of human health and the environment. On November 17, 2010, DHEC submitted comments to EPA regarding EPA’s proposed coal combust ion residual regulations and concluded the following:

“South Carolina has a comprehensive and mature solid waste management program. The Department has regulated solid waste since the early 1970's. In 1991, the South Carolina General Assembly passed a com prehensive solid waste management law, the "Solid Waste Policy and Management Act," that requires, among others, the permitting of solid waste landfills (S.C. Code Ann. §44

- 96

- 10 et. seq.). The current landfill regulation is found at Regulation R.61

- 1 07.1 9, and includes requirements for: liners, leachate collection, third party certification requirements for construction and closure and post

- closure care, groundwater monitoring, financial assurance, and public participation. These program elements have bee n in place for more than a decade, and were recently enhanced in 2008 with significant amendments to the solid waste landfill regulations. Based on more than a decade of groundwater monitoring data, none of the State's operating CCR landfills that are in c ompliance with current regulations have impacted groundwater. In a state that receives more than 40 inches of rainfall each year, this is a testament to the technical soundness of the current regulatory framework.”

The combined comments by Earthjustice et al (dated November 19, 2010) on the CCR proposal that are included in the NODA take aim at what it claims are gaps and deficiencies in state regulatory programs. As discussed above for the currently regulatory programs in South Carolina, the combined comm ents by Earthjustice et al in the NODA does not demonstrate a gap in the regulations in current regulations in South Carolina. Their comments should be afforded little weight by EPA as it considers which option to pursue in its final rule.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The com menter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect s tates to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to signif icant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support a ny of the final rule’s provisions.336



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0276

- 1 

### Organization 1 

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

### Commenter 1 : Michael Nasi Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
DISCUSSION

The Environmental Groups' Comments contain numerous flaws, including: ( 1) a failure to analyze what practices are actually taking place on the ground at CCR landfills and sur face impoundments; (2) a lack of understanding of the regulatory oversight that exists in states; (3) a flawed assumption that states are not willing to adopt updated and modified Subtitle D nonhazardous regulations; and ( 4) a failure to recognize or even discuss the benefits of a states

led Subtitle D regulatory option.

I. The Environmental Groups' Comments are limited by incomplete references to supporting documents and a theoretical regulatory discussion rather than a discussion of what is actually

oc curring in states' regulatory agencies and at CCR landfills and surface impoundments.

The effectiveness of state programs has been repeatedly confirmed, reconfirmed, and then confirmed again over the last ten to fifteen years. The 2000 Regulatory Determi nation concluded that the regulatory infrastructure is generally in place at the state level to ensure adequate management of CCRs. [Footnote 3: Notice of Regulatory Determination on Wastes from the Combustion of Fossil Fuels, 65 Fed. Reg. 32214, 32217. (M ay 29, 2000).] The report Coal Combustion Waste Management at Landfills and Surface Impoundments 1994

- 2004 ("2006 DOE/EPA Report"), further confirmed the growing effectiveness of state regulatory programs. [Footnote 4: Deborach Elcock and Nancy L. Ranek, U .S. Department of Energy, Office of Fossil Energy and the Office of Policy and International Affairs, U.S. Environmental Protection Agency, Office of Solid Waste, August 2006.] Despite this history, however, the Environmental Groups allege that the states' regulatory infrastructure is somehow not in place.

The Environmental Groups mischaracterize the studies conducted over the course of this
decades

- long rulemaking process in order to bolster their claims that states' regulatory programs are incapable or unwilling to adequately regulate CCR disposal. For instance, when referring to the 2006 DOE/EPA Report, the Environmental Groups state:

The 2006 DOE/EPA Report, which reviewed in detail the regulatory frameworks of 11 states, also documented continuing s ubstantial deficiencies in state regulation of CCR management. [Footnote 5: Comments of Earthjustice, Environmental Integrity Project, Sierra Club, Natural337

Resources Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, an d Physicians for Social Responsibility Groups, 18, Nov. 19, 2010; EPA Docket No.
EPA

- HQ

- RCRA

- 2009

- 0640

- 6315 ("Environmental Groups' Comments")]

The Environmental Groups' Comments go on to outline a number of deficiencies that the Environmental Groups all eged to have found. Contrary to the Environmental Groups assertions, while the report noted some deficiencies in the regulations of certain states, the report did not find that a "regulatory infrastructure" was not in place. Indeed, the key findings of the report contradict the Environmental Groups' assertions. The primary 2006 DOE/EPA findings were:

Between 1994 and 2004, the amount and quality of environmental controls used at CCW management units appear to have increased.

In eight areas of regulatory control reviewed for this report, more CCW s destined for landfills in the States reviewed had tightened regulatory controls than had relaxed controls between the times data were collected for the 1988 RTC and for this report.

In the 16 States hosting s urveyed units, we found that State regulators did not issue variances unless there were sound scientific bases to support the variance requests. [Footnote 6: 2006 DOE/EPA Report at S

- 5 S

- 10.]

The conclusions from the report clearly recognize the value of the state

- led regulatory approach. However, the Environmental Groups' Comments ignore these fundamental findings and assert that there must be no regulatory discretion regarding liners, groundwater monitoring, and other factors relating to the management to CCRs in order to conclude that a state

- led program is adequate. [Footnote 7: See Environmental Groups' Comments at 39

- 45.] In almost a binary approach to assessing states' ability to regulate, either the state receives credit for absolute regulations wi th no variance/allowance or zero credit for any minor variance or allowance. The world of environmental regulation, particularly in waste regulation where geology and other site specific issues must be factored in, is not binary; including variances, quali fied exemptions, and
other site

- specific flexibility is the norm of state and federal solid waste regulation.

As further support for their position that federal intervention is needed, the Environmental Groups essentially claim that states have a tendenc y to disregard public safety. They justify this position by citing a handful of instances where regulators granted variances related to the handling and disposal of ash. They conclude that these variances "reveal that when state law gives regulators discre tion to waive basic safeguards such as liners and cover, the states use that discretion liberally." [Footnote 8: Id. at 23.] Various types of laws contain provisions for the granting of variances these exist at the federal, state, and local level. Thus, t he existence of a provision affording a regulator an ability to grant a variance is not all that unusual. The position that States, by design, use such variances for bad intent, an argument forwarded by the Environmental Groups, is inane. Missing from the Environmental Groups' analysis is a discussion of the factual data or justifications for these
variances.

The Environmental Groups go on to state that "even the 2006 DOE/EPA Report documented 52338

requests for variances from CCR disposal requirements, of w hich 4 7 were granted by state regulators." [Footnote 9: Id.] In a blatant example of cherry

- picking only their preferred language, the Groups failed to include the actual findings of the DOE/EPA's analysis of the use of variances, where the 2006 DOE/EPA R eport found that, as stated above, "[ s ]tate regulators did not issue variances unless there were sound scientific bases to support the variance requests." [Footnote 10: 2006 DOE/EPA Report at S

- 10.]

Further contradicting the Environmental Groups' asses sment that liners and groundwater monitoring requirements were insufficient and that gains are not being made in the regulation of CCRs, the 2006 EPA/DOE report found that liner usage had become "essentially ubiquitous" with 55 of the 56 new units having l iners. [Footnote 11: Id. at S

- 5.] The vast majority (91 %) of the studied units built or expanded between 1994 and 2004 had groundwater monitoring. [Footnote 12: Id. at S

- 5

- S

- 6.] These advancements in the management of disposed CCRs are particularly striki ng when compared to the gains found in the May 2000 Bevill Determination. In determining that Subtitle C Regulation was not required in the 2000 Bevill Determination, EPA noted the significant improvements in waste management practices, stating that for un its built between 1985 and 1995, liners were used at 75 percent of landfills and 60 percent of surface impoundments. [Footnote 13: 2000 Regulatory Determination, 65 Fed. Reg. at 32216.] Groundwater monitoring was implemented at 88 percent of landfills and at 65 percent of surface impoundments. [Footnote 14: Id.]

The Environmental Groups find that "regulatory failure ha[ s] left the public exposed to pollution that is dangerous and illegal." [Footnote 15: Environmental Groups' Comments at 4.] However,
ther e is no evidence that the public is actually being exposed to pollution. Existing "proven" damage cases are already being properly remediated under state remediation programs, and to a limited extent, federal remediation programs. In the 2000 Regulatory De termination, EPA found that all of the "proven" damage cases were being adequately addressed; the states were responsible for remediation at all of the sites, except for two being addressed at the federal level. [Footnote 16: 2000 Regulatory Determination, 65 Fed. Reg. at 32216.] Of the 16 "proven" damage cases to groundwater, EPA itself has found that corrective actions have been completed in seven cases and are ongoing at the remaining nine cases. [Footnote 17: CCR Rule Proposal, 75 Fed. Reg. at 35150, N. 43.] OMB made a similar assessment during the pre

- proposal analysis of the Subtitle C only proposal, stating that "[t]he preamble repeatedly cites a need for federal enforcement and permitting. However, of the proven damage cases cited, the majority were addressed through state administrative action." [Footnote 18: Interagency Working Comments on Draft Rule under EO 12866, repost ofEPA

- HQ

- RCRA

- 2009

- 0640

- 0263, EPA

- HQ

- RCRA

- 2009

- 0640

- 0349 at I.]

With regard to the alleged damage cases in Texas, all have eit her been disproven or resolved. Only one new Texas damage case has been alleged by the Environmental Groups and, as no doubt will be addressed by other commenters, those allegations fall far short of the statutory test for damage cases and in no way indica te an inadequate regulatory framework in Texas.

Another of the Environmental Groups' cherry

- picking exercises that warrants mention is its attempt to summarize the 2009 survey conducted by ASTSWMO as demonstrating that "basic safeguards are simply not re quired by the majority of the states." [Footnote 19: Environmental339

Groups' Comments at 20] In reality, ASTSWMO confirmed the increasing level of protection provided by state controls, finding that 86% of the states with CCR landfills and 69% of the

states with CCR surface impoundments have permitting requirements for those disposal units. [Footnote 20: Letter from the Association of State and Territorial Solid Waste Management Officials to Matt Hale, U.S. Environmental Protection Agency, Director, Office of Resource Conservation and Recovery (April 1, 2009).]

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is
also r eferred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to
comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects o f the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequ acy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0276

- 2 

### Organization 1 

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

### Commenter 1 : Michael Nasi Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: II. The Environmental Groups' Comments fail to adequately account for the numerous other ways states oversee CCR disposal.

There are numerous enforcement and regulatory controls at the disposal of state regulators. While TCCPC cannot speak for every state impacted by this rule, TCCPC is able to articulate the numerous ways in which Texas has the regulatory authority to regu late and prevent environmental impacts from CCRs. TCCPC posits that similar structures and regulatory
redundancies as those outlined below can be found in other states.

The Environmental Groups conclude that Texas does not have sufficient authority to co ntrol340

onsite disposal of CCR because such on

- site disposal is not subject to a "permit." Due to this constrained view of Texas' regulatory program, the Environmental Groups overlook the extensive regulatory structure controlling the management and disposal of CCRs in Texas. While no permit is required, a person must obtain authorization from the state in order to dispose of
CCRs on

- site. Texas' authorization process is robust and involves the submittal of various types of information (e.g. type of waste man agement unit, waste composition, waste management methods, facility engineering plans and specifications, groundwater monitoring plans, information related to the geology and hydrogeology where the facility will be located, closure and post

- closure plans) to the regulatory agency, the Texas Commission on Environmental Quality ("TCEQ"). Additionally, the regulations require the recording of the disposal area in the county deed so that future landowners are made aware of the existence of the disposal area. [F ootnote 21: 30 TEX. ADMIN. CODE §§ 335.5

- 335.6.] Only after all necessary information is submitted and approved, is the facility designated as a registered waste management unit and authorized to operate.

TCEQ ensures that the CCR waste management units are protective of human health and the environment by analyzing all of the above

- described submitted information and ensuring that published guidance has been followed. [Footnote 22: Id. at §335.3.] TCEQ maintains regulatory jurisdiction and enforcement au thority over the units to ensure that facilities follow through on their commitments to protect human health and the environment. [Footnote 23: Texas has broad prohibitory language in regulation (30 TEX. ADMIN. CODE §335.4), the Texas Water Code (TEX. WATE R CODE §26.121), and the Texas Solid Waste Disposal Act (TEX. HEALTH & SAFETY CODE Ch. 361). Texas' enforcement powers extend to discharges on land as well as surface waters and groundwater, activities that may create a nuisance, and activities that endang er public health and welfare.] Most significantly, TCEQ administers a formal, thorough review and approval process over the closure and post

- closure care of the waste management units. Without proper design and construction (and overall adherence to the se t of guidelines established by Texas), collection of significant groundwater data during operation of the unit, and the maintenance of management practice records, it becomes virtually impossible to close a waste management unit in Texas. Therefore, while it may not fall squarely within the Environmental Groups' or EPA's narrow rubrics for analyzing CCR disposal oversight, the Texas program is comprehensive and protective of human health and the environment.

Perhaps the best way to demonstrate why the TCE Q should be entrusted to regulate CCRs is to simply look at the results. The Environmental Groups complain of the TCEQ's inadequacies, yet they can point to no current or relevant Texas damage case to back up that statement.

TCEQ's regulatory framework h as proven to be a model not just in preventing environmental harm but also promoting the beneficial use of CCRs. As part of EPA's efforts to promote reasonable and effective state regulation of CCRs and encourage their beneficial use, EPA
commissioned the Energy & Environmental Research Center (EERC) in 2005 to conduct a detailed analysis of seven state programs and determine a "model" CCR regulatory state. Texas was selected as the pilot state for an in

- depth review of its CCR programs, policies, and use

p ractices. [Footnote 24: Tera D. Buckley & Debra F. Pflugheoft

- Hassett, Review of Texas Regulations, Standards, and Practices Related to The Use of Coal Combustion Products, Energy & Environmental Research Center (2005).] Texas was chosen because of its pro gressive and341

realistic approach. The report ultimately concluded that

[O]ther states with less successful CCP utilization can learn from what Texas has done right and implement similar activities in their own states. [Footnote 25: Id. at vi.]

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not r esponded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no fina l conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0276

- 4 

### Organization 1 

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

### Commenter 1 : Mic hael Nasi Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.5 

### Comment Excerpt Text: IV. The Environmental Groups' Comments do not analyze or account for EPA's ability to propose a state

- administered Subtitle D regulatory option.

As discussed above, EPA predicts a Subtitle D compliance rate of 48% amongst the states, with
the Environment al Groups asserting an even lower compliance rate. TCCPC believes it is clear that the states are adequately addressing CCR disposal and are fully capable of administering a Subtitle D CCR regulatory program. It is equally clear that the EPA has the statut ory authority to

oversee a state

- administered Subtitle D CCR regulatory program. The Environmental Groups' critiques of the Subtitle D program, like EPA, never recognize the clear authority under RCRA for EPA to develop a process to evaluate state CCR prog rams to ensure compliance and require a prior approval mechanism enforced by the states.

EPA's authority to rely upon a state

- administered system of prior approval comes from the same provisions under which EPA has already developed federally enforceable criteria for Municipal342

Solid Waste Landfills (MSWLFs) and non

- municipal solid waste landfills that may receive conditionally exempt small quantity generator (CESQG) hazardous waste. RCRA Section 4010(c), in conjunction with the provisions of RCRA Section 4005(c)(1)(B), outlines a clear method for EPA to promulgate nonhazardous waste rules that can be administered through state programs and backed up by EPA enforcement for states failing to adequately implement federal rules. This further prevents duplicati on of rules and allows for states to tailor programs that meet the states' unique characteristics and environmental conditions. This analysis is more thoroughly discussed in TCCPC's comment filed on the CCR rule proposa1. [Footnote 32: See Docket No.
EPA

- H Q

- RCRA

- 2009

- 0640

- 7395.]

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in la ndfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the prea mble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements , EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0277

- 1 

### Organization 1 

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

### Commenter 1 : Henry Darwin Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: ADEQ would like to take this opportunity to comment on the erroneous information included in the November 19, 2010 comment letter submitted b y Earth justice, Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, and Physicians for Social Responsibility. Specifically, ADEQ would like to address the incorrect assessment that state regulations are grossly deficient in the majority of states, including Arizona.

While landfill surface impoundments and areas containing ash from the on

- site combustion of343

coal are exempt from regulation as a solid waste i n Arizona, ADEQ's Air Quality and Water Quality regulatory programs, and the Arizona Department of Water Resource's Dam Safety Program provide the regulatory framework necessary to protect human health and the environment from coal combustion residuals (CC R) management units The following is ADEQ's response to the false statements made in the November 19, 2010 comment letter regarding Arizona's lack of regulation of CCR management units.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a pr esentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid wa ste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts
involved in the dam age cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment N umber: EPA

- HQ

- RCRA

- 2011

- 0392

- 0277

- 2 

### Organization 1 

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

### Commenter 1 : Henry Darwin Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comme nt Excerpt Text: Air Quality Program The assessment in the comment letter is incorrect with regards to fugitive dust and air quality in Arizona. While ADEQ does not regulate CCR surface impoundments and landfills directly (i.e., ADEQ does not have air qua lity rules that address them specifically), if there is a potential for fugitive dust from the surface impoundment or the landfill, Arizona regulations require that the owner or operator take reasonable precautions to minimize the dust [Footnote 1: Arizona Administrative Code, Title 18, Chapter 2, Article 6]. ADEQ is not aware of any dust related complaints or issues with CCR sites in Arizona.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.344

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0277

- 4 

### Organization 1 

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

### Commenter 1 : Henry Darwin Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.4.2 7.3.1 

### Comment Excerpt Text: Through these requirements implemented by ADEQ, Arizona has a strong regulatory framework in place to protect human health and the environment concerning CCR m anagement units. EPA should not promulgate new CCR regulations that would adversely impact proven state regulatory programs like those that already exist in Arizona.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referre d to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discu ssion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans

.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, ho wever, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.345



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0 392

- 0278

- 2 

### Organization 1 

### : Cleco Corporation 

### Commenter 1 : Bill Matthews Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
Comment III

The authors’ claims, in Comments Of Earthjustice, Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance For Clean Energy, Southern Environmental Law Center, Physicians For Social Responsibility (EJ), that hazard ous waste controls are needed to correct State CCR regulatory deficiencies are unfounded.

The main point that seems to be made in EJ is that EPA must impose hazardous waste controls because of the alleged “failure of states to regulate adequately the dis posal of coal combustion waste. EJ goes into more detail with their allegation by stating that “State programs are incapable of adequately regulating the disposal of coal ash.” Cleco categorically disagrees with these statements by EJ. The solid waste prog ram in Louisiana, through which the Cleco CCR landfills and impoundments at the Dolet Hills Power Station and the Rodemacher Power Station are regulated, contains most of the requirements mentioned by EJ as being part of an ideal CCR site program. The Loui siana program is not a Subtitle C program but is in most respects a Subtitle D Prime program.

As documented in EJ, the Louisiana program includes most of the requirements envisioned by the authors as being needed in an ideal program with respect to permi tting, groundwater monitoring, liners, leacheate control and other items. EJ makes at least two errors in describing the Louisiana program. In addition, the authors present several other notions about an ideal program that are open to challenge:

1. EJ st ates that in the Louisiana solid waste regulations, “grandfathered” CCR landfills do not require groundwater monitoring. However, the LA DEQ solid waste regulations clearly state/require that all industrial Type I landfills, a category to which CCR sites b elong, are required to meet the groundwater monitoring requirements. 2. EJ implies that quarterly groundwater monitoring should be required but doesn’t demonstrate why. Groundwater moves very slowly and so quarterly monitoring is unnecessary. The Louisian a program calls for semiannual monitoring. However more frequent monitoring can be required as needed on a case by case basis. 3. EJ implies that groundwater well arrangements must include at least one up

- gradient well and
at least 3 down

- gradient wells. EJ doesn’t explain why a minimum of three is required down

gradient. Louisiana rules require an adequate number both up

- gradient and down

- gradient. This could require as little as one or two wells up to any amount of wells determined necessary for346

describ ing the groundwater condition. 4. EJ lists a number of states, 15 including Louisiana, that do not require dust control at CCR sites. However, in the Louisiana Administrative Code, LAC33:VII.521.G.1, the text states that permit applications for all solid waste processing and disposal facilities must include “Provisions for Controlling Vectors, Dust, Litter and Odors”. Therefore, contrary to the information in EJ, the requirements in the Louisiana solid waste permit regulations for CCR landfills and impound ments do require that fugitive dust be addressed. 5. EJ contains a data table, Table 29, titled On

- site groundwater data exceeding Federal Primary Maximum Contaminant Levels (MCLs). Table 29 is adapted from “In Harm’s Way” and lists
information from the C leco Dolet Hills Power

Station and the Rodemacher Power Station showing groundwater sample data with arsenic, lead and selenium above MCL’s. However, in the previous discussion in Comment II above, it was demonstrated that this data does not prove impact by the CCR sites on groundwater. This is discussed again next:

Dolet Hills Power Station: As previously discussed above in Comment II, it was explained that the Dolet Hill Power Station selenium data actually came from an up

- gradient well but was erron eously listed in the In Harm’s Way report as a down

- gradient well. Also it was discussed that the arsenic and lead data from these wells trended down over the subsequent three semiannual sampling events to a non
detect concentration level which demonstrate s the exceedences for arsenic and lead in EJ Table 29 to be outliers. In addition none of these sample events for DHPS represented in EJ Table 29 demonstrated a statistical increase between up

- gradient versus down

- gradient wells which is necessary to concl ude potential impact to the ground water by the CCR sites.

Rodemacher Power Station: For the Rodemacher Power Station, EJ Table 29 shows arsenic and lead above the respective MCL’s for sampling events in 2009. But as discussed in Comment II, two of the wells of interest in EJ, W1 and W21, are listed in the groundwater sampling reports as up

- gradient wells, rather
than down

- gradient wells, and therefore do not imply impact to groundwater due to arsenic from
the CCR sites. In addition the arsenic data from the down

- gradient wells from this 2009 sampling event did not show a statistically significant increase over the up

- gradient wells. As a result the 2009 sampling events did not potentially demonstrate an impact from the CCR units for arsenic.
The lead dat a listed in EJ Table 29 involved wells used for monitoring groundwater around waste water treatment impoundments that are commonly referred to as metal cleaning waste ponds. These units do not receive CCR. Therefore this data is out of context with respect to claims involving CCR. Once again, because there were no valid SSI events involving the arsenic and lead data in EJ Table 29, the indication is that the CCR sites did not potentially impact the groundwater during these arsenic and lead sampling events.

In summary, Comment III shows that a State, Louisiana, administers a solid waste regulatory program for CCR the successful application of which is shown by the solid waste units at two Cleco power stations which demonstrate no impact to the environment b y the CCR units. The success of the Louisiana regulatory program, a program very similar to Subtitle D Prime, refutes both the claim in EJ that “State programs are incapable of adequately regulating the disposal of347

coal ash” and the EJ conclusion that a Su btitle C program is needed with EPA enforcing the program. Obviously the Louisiana program structure and performance proves this. It shows that a Subtitle D Prime program enforced by each State is adequate for protection of health and the
environment

Respo nse: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundment s. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EP A expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments r elating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0284

- 2 

### Organization 1 

### : Alabama Department of Environmental Management (ADEM) 

### Commenter 1 : Wm. Gerald Hardy Commenter Type: State Government Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: As for the notice of data availability, ADEM is troubled that EPA would put such an inordinate amount of credence in a document as full of misleading inaccuracies and intention al mischaracterizations as the EarthJustice report entitled: "State of Failure: How States Fail to Protect our Health and Drinking Water from toxic Coal Ash." EPA has a long history of working cooperatively with its state partners to ensure the proper mana gement and disposal of solid
wastes and knows firsthand the hard

- work and dedication the state program staffs invest in this endeavor. It would seem obvious that if EPA believed there to be any validity whatsoever to the outlandish thesis of the Earthjusti ce report, that the Agency would have acted to step in at some point over the past 20+ years under its authorities granted by RCRA. It would appear more than coincidental that EPA's current course of action regarding the sufficiency of state programs

comes while Congress is considering legislative action to codify the primacy of state programs in regulating CCR.

As to the specific claims of the Earthjustice report, it should be noted that the report dated is348

November 19, 2010. On May 25, 2011, Governor Rob ert Bentley signed a law that removes the exemption for coal combustion by

- products from regulation as a solid waste in Alabama. It should be noted that ADEM drafted and actively supported the passage of this legislation, while environmental groups and ind ividuals with ties to Earthjustice opposed its passage. Earthjustice notes repeatedly in their comments that Alabama law exempts CCR from regulation, and as such, Alabama exemplifies the States' reluctance to regulate CCR. Moreover, in a report published i n August 2011, Earthjustice identified Alabama as one of its 12 Most Dangerous States "representing the worst of the worst when it comes to coal

- ash disposal." Earthjustice fails to acknowledge, or was unaware of, both the significant change in Alabama's l aw governing the regulation of CCR disposal and ADEM's proactive leadership in its passage. Such action could hardly be considered as "reluctance" by the State.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final s ubtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0284

- 3 

### Organization 1 

### : Alabama Department of Environmental Management (ADEM) 

### Commenter 1 : Wm. Gerald Hardy Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.1.1 7.1.1.2 7.4.1 

### Comment Excerpt Text: As for the newly

- passed state law, not only did Alabama elect to regulate coal ash as a solid waste effective immediately, it specifically authorized the future adoption and implementation of a federal regulatory program for disposal of CCR. Until such tim e as said federal program is adopted, the disposal of CCR would fall under Alabama's existing solid waste requirements. Under these regulations, coal combustion by

- products are classified as an industrial solid waste and are subject to a hazardous waste de termination. If determined to be non

- hazardous, the waste349

must be disposed of in accordance with ADEM's Solid Waste Program requirements for industrial waste. Landfills permitted to accept this type waste must be constructed with liner and
leachate collect ion systems and must also conduct periodic groundwater monitoring.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this sub title D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the comment er is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to

co mments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certa in aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0284

- 4 

### Organization 1 

### : Alabama Department of Environmental Management (ADEM) 

### Commenter 1 : Wm. Gerald Hardy Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Given the revision made in our state law, Earthjustice's portrayal of Alabama as the worst State
in it s State of Failure report is unfounded and inaccurate, as are its overall characterization of States as being incapable and unwilling to regulate CCRs in an environmentally safe and technically sound manner. Furthermore, its refusal to acknowledge the chan ge in Alabama's statute raises doubts about Earthjustice's ability to accurately and independently evaluate the progress that States have made improving their CCR programs. Such doubts should be of grave
concern to EPA in its evaluation of the worth of the Earthjustice report in arriving at a final decision on the CCR rulemaking.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the350

technical standards the Agency is promulgating in this rule. Furthermore , th e commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases t o support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no fin al conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0285

- 1 

### Organization 1 

### : Florida Department of Environmental Protection (DEP) 

### Commenter 1 : Jeff Littlejohn Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: This letter provides important information on concerns that have been expressed by others on environmental impacts from coal

- fired power plants in Florida and the adequacy of Florida's regulatory programs. DEP continues to believe that its existing regulations for managing coal combustion residuals (CCR) in Florida are adequate.

Many of Florid a's originally coal

- fired power plants no longer use coal, have converted to other fuel sources, and have stopped generating Coal Combustion Residuals (CCR). Twelve of Florida's 80 permitted power plants still use coal as a fuel. With almost 19 million Flo ridians, most of whom depend on groundwater for their drinking water supplies, Florida's regulatory framework must ensure protection of the groundwater resource. In Florida, our existing regulatory programs are already focused on protecting groundwater and surface water resources from the environmental concerns that are cited in the referenced documents, including the safety of impoundments and potential pollutants from CCR.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.351

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0285

- 4 

### Organization 1 

### : Florida Department of Environmental Protection (DEP) 

### Commenter 1 : Jeff Littlejohn Commenter Type: State Government Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 8.9 

### Comment Excerpt Text: IN HARM'S WAY: Lack of Federal Coal Ash Regulations Endangers Americans and Their
Environment

Throughout the document, various states refer to Florida’s ado pted groundwater standard for vanadium of 0.049 mg/L. However, Florida has not adopted a vanadium groundwater standard. The 0.049 mg/L standard is the cleanup target level for vanadium adopted under Florida's Contaminant Cleanup Target Levels rule in Chapt er 62

- 777, Florida Administrative Code (F.A.C.), which provides criteria in tables and figures that apply to site rehabilitation.

Out of Control: Mounting Damages From Coal Ash Waste Sites

In the section Summary of Damage Cases, the authors compare the p ollutant levels to Florida's cleanup target levels in Chapter 62

- 777, F.A.C, Since the activities listed in the summary are not subject to these cleanup levels a direct comparison is inappropriate.

Response: The Agency acknowledges and appreciates the c omment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the prea mble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into s tate solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For352

example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts
involved in th e damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0287

- 1 

### Organization 1 

### : Illinois Environmental Protection Agency (EPA) 

### Commenter 1 : John Kim Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comm ent Excerpt Text: Attached please find Illinois EPA's comments made in response to statements from EarthJustice, the Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, and Physicians for Social Responsibility dated November 19, 2010 (Docket ID No. EPA

- HQ

- RCRA

- 2009

- 0640).



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0290

- 7 

### Organization 1 

### : Alliant Energy Corporate Services, Inc. on behalf of Interstate Power and Lig ht Company and Wisconsin Power and Light Company 

### Commenter 1 : Douglas Kopp Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The New Analysis of State Programs Further Supports Management of CCR as a
Non

- Hazardous Material:

Section VII includes comments from Earthjustice et al., state representative organizations submitted by the Association of State and Territorial Solid Waste Management Officials (AST SWMO) and the Environmental Council of the States (EGOS), and various state agencies. The Earthjustice comments represent a cursory review of state regulatory programs, alleging gaps and deficiencies exist in current programs, and that states are unable to promulgate or enforce CCR management programs. The states dispute this allegation, additionally noting the proposed "nonhazardous" waste option provides the same environmental protectiveness as the "hazardous waste" option. Alliant Energy is not familiar with all state programs, but is knowledgeable of the Wisconsin CCR landfill program ... where requirements for an engineered liner, leachate collection system, cover, drainage, groundwater monitoring, etc. are already in353

place. This program today essential ly reflects the environmental protectiveness being proposed in the EPA rulemaking, effectively discrediting the allegations by environmental groups of regulatory "gaps". Hence, this data demonstrates that effective programs providing environmental protecti veness exist under current non

- hazardous state regulatory programs, with no compelling reasons for CCR regulation as a "hazardous waste".

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the p reamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical stand ards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA i s deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. F or example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comme nts on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: TRANS

- ARL

- 0109

- 1 

### Organization 1 

### : Sierra Club 

### Commenter 1 : Drew Ball Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.2.4 

### Comment Excerpt Text: We applaud EPA for recognizing the very real health and environment al risk posed by toxic coal ash. Given the seriousness of these risks, enforceable federal safeguards, not suggested state guidelines, are necessary to protect communities. Having done extensive work on coal ash within North Carolina, particularly with Nor th Carolina state government, I can say firsthand that some states are not doing an adequate job of protecting communities from the dangers of coal ash. Strong federal safeguards needs to be issued quickly before more communities are exposed. Continuing to ignore scientific and safety concerns could come at a very high cost.
North Carolina issued

-- I'm sorry, the North Carolina Sierra Club issued a report on April 11th

-

- April 12th of this year documenting how a lack of federal controls and weak state re gulations have created a gaping loophole, allowing an unknown volume of coal ash to be disposed of with very little oversight and uncertain impacts to public health. This lack of oversight is placing the
health of North Carolinians and our environment at r isk. While some processes may render coal354

ash inert and, therefore, suitable for reuse, such as use in additive concrete, North Carolina's practice of allowing coal ash to be placed on the ground as fill material for land development with minimal oversight , has led to numerous problems. These problems include groundwater contamination, surface water contamination, sham landfills, environmental violations, and a failure to track locations of coal ash fills. The lack of federal regulation is what has led to t he current failed patchwork of state protections against coal ash.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this sub title D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the comment er is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support cer tain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusion s on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: TRANS

- CHI

- 0005

- 1 

### Organization 1 

### : Prairie Rivers Network 

### Commenter 1 : Traci Barkley Commenter Type: Advocacy Group Classifi cation: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: 1) Illinois officials have known that coal ash handling and disposal practices have been negligent and threatening clean water and public health. We have data from nearly 20 years ago showing
as much. What EPA needs to hear is that it wasn't until the Dece mber 2008 impoundment failure in Kingston, Tennessee that a state

- wide review of these ash impoundments was initiated. The findings have been startling: I. Most coal ash impoundments do not have liners or other protective measures to contain waste and prev ent pollution of groundwater. Ii. Groundwater monitoring was not required at most coal ash impoundments. Iii. Groundwater is contaminated at ten power plants, those that have been investigated thus far; and iv. Dams creating the impoundments at most sites are unpermitted and have not been inspected for safety or stability. In Illinois, we are missing what we so desperately need to protect our people and wildlife from coal ash contamination: liners, monitoring, effective cleanup plans, dam safety requiremen ts,355

enforceable standards, which brings me to my second point.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtit le D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to

comme nts that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: TRANS

- CLT

- 0002

- 1 

### Organization 1 

### : North Carolina Chapter of Sierra Club 

### Commenter 1 : Molly Diggins Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.1 

### Comment Excerpt Text: Coal ash is of particular importance to North Carolina, for we have the dubious distinction of having b een identified by the EPA as having more high

- hazard coal ash ponds than any other state in the country. We know that we generated last year nearly 4 million tons of dry ash. We have no idea how much wet ash was generated because it's not required to repor t that
information. Following the catastrophic spill in Tennessee, we looked around. We took a close look at what's happening in North Carolina, plus looking at other states to see what we needed to do here. And we're frankly astonished to learn that desp ite what is known about the health impacts of coal ash and the toxins, that there's no agency, no individual, no institution in North Carolina that can answer the question: how much coal ash are we generating, where is it going, and is it safe?
There is a hodgepodge of programs and regulation but ultimately, North Carolina is awash in coal ash, and there is no cop on the beat. Here is what we do know: investigations, when they have taken place, have shown that we are having problems with groundwater and su rface water contamination in North Carolina. And the list of damage reports is continuing to grow here in this state, and nationally. We believe this is only the tip of the iceberg. The public is just now really becoming engaged in356

understanding what may be in their backyard, what may be in the lot next door; in fact, what might be under their own property. I know that this rule as proposed does not address beneficial fill, but I do want to point out in North Carolina we have a loophole. Maybe they don't in other states, but we have a loophole here that allows largely unregulated dumping of coal ash in unlined landfills. That is a serious problem. Subtitle D might have been worth a try a decade ago when EPA first started giving serious
consideration to ad dressing the health impacts. That time is long past. The magnitude of the problem is such that Option C is the only viable option. Citizens and states need consistent, federally

- enforceable requirements if we are going to succeed in managing this threat to public
health. Finally, let me conclude by saying that this is a moment of leadership. We appreciate that the EPA inherited this problem from a previous administration, but the public is really looking to you to act. There are many here today who are goi ng to talk to you about beneficial fill. I would just state that a failure to act to protect public health to avoid a hypothetical public relations problem for certain uses of coal not regulated by this rule, would be a complete abdication of the public tr ust. We urge you to adopt Option C.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is
also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the

te chnical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of t hose programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: TRANS

- CLT

- 0011

- 1 

### Organization 1 

### : Tampa Electric Company 

### Commenter 1 : Randy Melton Commenter Type: Electric Utility Company Classification: Subst antive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:357

Tampa Electric serves over 700,000 customers throughout the Tampa Bay region of central Florida. TECO operates two coal

- fired power plants that generate approxima tely one million tons of CCRs annually, of which over 97 percent is beneficially reused in a variety of environmentally

- sustainable applications. At both coal plants, we have worked with the Florida Department of Environmental Protection to
modernize the facility's existing CCR management units. These improvements have been required by the FDEP to ensure the protection of groundwater and surface water resources in the vicinity of these plants. Projects have included the capping and closure of inactive form er disposal units, the lining of CCR impoundments and the redesign of handling systems to eliminate onsite storage of CCR products prior to beneficial reuse. The impoundments and landfills at our plants have been retrofitted with liner systems that meet

t he permeability and leachate control standards required by the federal Subtitle D regulations. Any future facilities will also be required to meet these standards. Our experience is provided as an example to illustrate the effectiveness of Florida's solid waste regulatory program in addressing the safety of CCR management units that are constructed within our state. Other Florida utilities have similar experience with this program, which is already authorized under
federal Subtitle D.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: TRANS

- CLT

- 0013

- 1 

### Organization 1 

### : Southern Environmental Law Center 

### Commenter 1 : Chandra Taylor Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:358

Southern Environmental Law Center's support for the Subtitle C option is based on my review of state statutes and regulations across the Southeast, which reveal significant statutory and regulatory gap s in CCR regulation that result in inadequate protection of the environment and public health from the dangers proposed by CCRs. Gaps in regulation previously identified by the EPA have not been substantially addressed by the states in the intervening per iod and therefore only federal oversight under Subtitle C will result in protective regulation. In particular, as to inadequate state regulation, in North Carolina in 2007 a comprehensive solid waste management act was passed. Most facilities became subje ct to significantly stronger requirements for where solid waste facilities could be placed. CCR landfills were specifically exempted from those provisions. In fact, in addition to the particular exemption for new CCR landfills, groundwater monitoring at CC R landfills is voluntary rather than mandatory. In particular, in the new law the statute specifically states that compliance with performance of the landfill to prevent releases of waste to the environment may be determined based on the leakage
rate rathe r than monitoring well data. Adequate oversight to determine if CCR constituents have migrated off

- site require the use of monitoring wells. Thus, this statute is not sufficiently protective. Further, when a leak is detected, there is no set time period w ithin which corrective action must
be taken. In South Carolina, the stringency of regulation of CCR landfills depends on the result of a short

term leach test, the toxicity characteristic leaching procedure. This test has been soundly
discredited for its failure to accurately predict the migration of contaminants from coal ash. In Alabama, despite being a very large CCR producing state, CCR landfills and surface impoundments are not specifically regulated. Overall, in the states of Alabama, North Carolin a, South Carolina, Virginia, Tennessee, and Georgia, all six states fail to require liners for all CCR surface impoundments and landfills. And Georgia, Alabama, and South Carolina, they all fail to require that CCR disposal units be separated from groundwa ter. In Alabama, Georgia, North Carolina and Tennessee, they all fail to require that all CCR disposal units obtain solid waste permits. And all six states failed to require all waste unit to have groundwater monitoring systems during active life and post

- closure.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surfa ce impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discus sion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state359

programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on sta te programs to support any of the final rule’s provisions.



### Comment Number: TRANS

- CLT

- 0084

- 1 

### Organization 1 

### : North Carolina House 

### Commenter 1 : Tracy Harrison Commenter Type: State Elected Official Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.2.4 

### Comment Excerpt Text: I'm a member of the North Carolina House, serving in my third term representing Greensboro. And I'm not going to repeat all that you all have heard about the environmental issues associated and public health issues associated with coal ash but I would like to talk about my extraordinary frustration with getting regulation done at the state level here in North Carolina, and why we need Federal leadership on this. It was pretty trou bling for me to find out how ubiquitous coal ash is used in North Carolina, in structural fill on construction sites, on the roads to melt snow and ice and it goes virtually unregulated, unmonitored, unenforced, unreported. So I have been working for three years to introduce legislation at the state level to bring in some new practices and provide better oversight, and I feel stymied in efforts by the coal ash producers who would prefer Federal regulation

-- at the federal level, but I believe

-- Subtitle D , is treating it as regular household waste, and I contend to you all that it's much too toxic to be used, to be regulated as regular
household waste. And it's pretty clear that the states, when I was looking for legislation, model legislation, around
the country to model a North Carolina bill, I couldn't find one. So it's my feeling that there's not adequate regulation of coal ash anywhere in any state. So we really need federal regulation and we need federal regulation under Subtitle C.

Response: The Ag ency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The comme nter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect sta tes to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D r egulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded t o many comments on state360

programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: TRANS

- CLT

- 0096

- 1 

### Organization 1 

### : Earthj ustice 

### Commenter 1 : Abigail Dillen Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 8.2 

### Comment Excerpt Text: Over the past year, my colleagues and I have researched the State regulations, such as they are, that are currently on the books to guard against water pollution from coal ash. We have documented extensive damage from coal ash around the country. And the p icture that we see is a wholesale regulatory failure, and that failure is leaving us with a national legacy of
contamination. Given the history here, the claim that EPA can leave regulations to the state simply is incredible, and we will be making that ca se in detail to you in written comments. But since we are in Charlotte, let's talk about North Carolina, which is a perfect example. There are more high

- hazard dams here than in any other state in the country, but there are no regulations that apply to co al ash ponds and surface impoundments. That means no engineering and safety requirements, no required groundwater monitoring, no financial assurances, and no post

- closure requirements for the many aging facilities that will soon have to retire. And you've heard of that from somebody living near the Riverbend plant here today what happened to that ash pond. There is simply no regulations in place to ensure that it will be closely

-- or safely
closed and monitored. North Carolina should know better. Going ba ck to the 1970s, regulators knew that selenium from coal ash was poisoning Belews Lake, eventually killing off 16 of its 20 resident fish species. This is just one of several known damage cases in this state, yet there has never been a real attempt to get a handle on the coal ash problem. And let's be clear, North Carolina is not an outlier. I'm going to end with a brief story about Pennsylvania, which supposedly has the most progressive coal ash regulation in the country. A couple of months ago, I was in the town of La Belle, and the highest point in La Belle is the coal ash ridge that surrounds a big ash

-- it's a little bit bigger than a pond; it looks more like an ash lake. And when it rains, storm water flows down through the ash flooding the back yard s and the basements of the people who live below it. When the wind blows, they look up and they say they see a gray Sahara of ash blowing around. It blows under their windowsills, it blows into their barbeques, into their garages, into their cars. Of 40 p eople I met at a town hall meeting, ten were suffering from cancer, and they all lived in
the same cul

- de

- sac under the ash dump. These are people who do not have the means to pick up and move. They are trapped. And they are asking me, why aren't their rul es against this? On their behalf, I implore you to make those rules under Subsection C

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for

p romulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.361

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furth ermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage ca ses to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made n o final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: TRANS

- CLT

- 0113

- 1 

### Organization 1 

### : MACTEC Engineering and Consulting 

### Commenter 1 : Guy Winebrenner Commenter Type: Other Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Based on our experience in seven states where coal is used to fuel a significant portion of the electric genera tion output, we have found that the state regulatory programs controlling dam safety, landfill design, groundwater protection, at both point and nonpoint source discharge provide an adequate framework to provide for public safety, property protection and

e nvironmental preservation when properly applied. Moreover, the State regulatory programs are designed to take into consideration the specific geographic, geologic and water resources features that can affect the proper operation of CCR storage facilities. Consequently, we see no reason

-- no compelling reason to move the control of CCR under the hazardous waste management requirements of the Subtitle C.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV a nd V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the

te chnical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D r egulation. For362

example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded t o many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: TRANS

- CLT

- 0115

- 1 

### Organization 1 

### : South Carolina Coastal Conservation League 

### Commenter 1 : Nancy Cave Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: South Carolina has 14 coal generating plants produc ing over 2.1 million tons of ash annually. This ranks South Carolina 20th in the country for coal ash generation. The coal ash is placed in 22 ash ponds at nine plants and at least five landfills. And according to your 2007 assessment, six of these ponds a nd landfills are unlined and one is clay

- lined. Of these sites six do not have leachate systems. All of the plants are sited on rivers and lakes; rivers that are sources of drinking water for communities up and down their length. In Georgetown County wher e I live the state

- owned utility, Santee Cooper, operates the Winyah power station with 6 ash ponds on the Sampit River. In Horry County, Santee Cooper operates the Dolphus M. Grainger power station with two ash ponds on the Waccamaw River which supply dr inking water to the communities of Myrtle Beach and Georgetown, just to name two. The Environmental Integrity Project found that the Grainger ponds contaminated groundwater near the Waccamaw River with arsenic 91 times the state drinking water standard. R uling coal ash to be a hazardous waste is a precautionary action that will protect the waters of South Carolina and the nation, but more importantly a Subtitle C ruling will protect the children and adults from toxins that according to EPA's own studies ca use serious health threats

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- CLT

- 0123

- 2 

### Organization 1 

### : CROP PLUS 

### Commenter 1 : April Watts Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: I would like to speak about New York State DEC

-- Department of Environmental Conservation policy and practices. In 2007, CROP PLUS filed a Freedom of Information Request to New York DEC and received the following information: One, NRG Dunkirk Power did no t file any363

reports from 2002 thru 2007 for Coal ash use under BUD 122

- 0

- 34. The information submitted
10

- 31

- 2008 was incomplete and contradictory to previous records. Two, the DEC forms request yearly quantity of solid waste beneficially used. The form has a note, quote, "please attach to this form all reporting information required by the BUD." Nothing was attached to any files received and no periodic testing was reported. Three, the DEC form for the beneficial use of coal ash under Regulation 360

- 1.15 ha s all cement, concrete and concrete products listed under bottom ash and not under fly ash. Both fly ash and bottom ash are recorded as bottom ash on several reports. In April 2009, Daniel David, Regional Engineer for the Environmental Quality Region

resp onded in a letter to Chautauqua County Executive Gregory Edwards, quote, "Sampling and analysis is no longer required in order to beneficially use coal ash as a traction agent." Mr. Daniels referred to Regulation 360 and predetermined BUDs that required no testing. However, Bottom ash reuse as a traction agent is being reported under BUD 122

- 0

- 34 which does require testing. Also, in April 2009 New York DEC Commissioner Alexander Grannis responded to U.S. Congressman Brian Higgins saying "The use of coal co mbustion bottom ash by NRG Energy's Dunkirk Power Facility is addressed by a 1993 DEC regulation that supersedes the previously granted BUD 122

- 0

- 34. This regulation does not require NRG to undertake any chemical analysis." Which is it? Is this BUD supers eded by or incorporated into the regulation? How can it be superseded by Regulation 360 when Part A of the regulation states: "Beneficial use determinations granted by the department before the effective date of this section shall remain in effect, subject to all conditions contained therein, unless specifically addressed by subsequent department action." No subsequent department action has been reported. Forms and records need to be updated. Coal combustion ash should not be reused in residential
areas wi thout periodic testing to guarantee human and environmental health and safety. In closing I emphasize that many state regulations are not requiring proof of protection.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: T RANS

- CLT

- 0138

- 1 

### Organization 1 

### : South Carolina Chapter of Sierra Club 

### Commenter 1 : Susan Corbett Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: In South Carolina, as you've heard from previous folks, we have a serious problem. I think there was a contingency here this morning from the area around Columbia where I live. She had a little bottle of water. I was at a DHEC hearing a few months ago wher e we challenged their attempt to deregulate or to lower these standards on arsenic being released from the SCANA coal ash pond there in lower Richland County. I basically heard the DHEC officials say, "The dilution is the solution to pollution." Over 200 f olks turned up at that hearing in Lower Richland County to speak out against the amount of arsenic and other toxins being dumped into the watery river from364

that coal ash. There are no markings in that river; people can paddle and fish right up at the area. I think Representative James Smith was familiar. He was here this morning, talked about the amount of seepage seeping under that pond into the watery river. The sad fact is, the Department of Health and Environmental Control in South Carolina does not
ha ve the regulatory backbone to stand up to SCANA and other utilities that are managing these ponds, or not managing these ponds. There have been numerous citations over the years. They have had years of this going on, and virtually nothing has been done to change the pattern of leakage.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- CLT

- 0145

- 1 

### Organization 1 

### : CROP PLUS 

### Commenter 1 : James Hofter Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: I'd like to speak about New York State DEC policy and practices. BUD 122

- 0

- 34 granted in 1992, allows coal bottom ash from two power plants to be used as a traction agent with the
follow ing conditions: A sample of the ash may be obtained and analyzed twice annually for TCLP metal. If the results indicate a metal will have an adverse impact on water quality, the DEC will immediately notify and new samples must be analyzed. Accumulated ash cannot be used and must be managed properly. A semi

- annual report must be submitted to the DEC to keep track of the amount of ash reused throughout the state. This report must list the users of the ash and quantities each user receives. Moreover, the BUD was updated in 1996 to allow the use of bottom ash as the surface material for running tracks. Regulation 360

- 1.15 was adopted in '93. Part A states: BUD's granted by the Department before the effective date shall remain in effect subject to conditions con tained therein. Part A is not being enforced. DEC reports this BUD has been incorporated in regulation 360. If not into part A, then surely it must be incorporated into part D, which states: The generator or proposed user of solid waste may petition the DE C, in writing, to beneficially use the waste. They must provide a demonstration that management of solid waste will not adversely affect human health, safety, the environment, and natural resources by providing a solid waste control plan. This was describe d as follows: Procedures for periodic testing of the solid waste, a description of storage and maximum anticipated waste inventory not to exceed 90 days before using. Procedures for run

- on and run

- off control of the storage areas. None of these being requi red of BUD 122

- 0

- 34. Crop Plus presented proof of pollution.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- DAL

- 0004

- 1 

### Organization 1 

### : Texas Commission on Environmental Quality 

### Commenter 1 : Earl Lott365

Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.3 

### Comment Excerpt Text: Texas has one of the highest number of coal facilities in the United States and consequently the
l argest producer of coal combustion residuals in the nation. We believe that Texas has adequate and effective regulations to safely manage coal combustion residuals. Texas has promulgated effective legislation and has been at the forefront of recycling init iatives for the use of coal combustion by

- products in the industry. Coal combustion recycling rates in Texas are as high as 60 to 70 percent. EPA has acknowledged that Texas has been a model state on this issue, and that was recognized in the early '90s. Recycling rates have dramatically improved in Texas, from around 20 to 25 percent in the early '90s to the rate of 60 to 70 percent today. We've done this

-- achieved this through progressive legislation, by diligent work with

-- cooperating with state age ncies like the Texas Department of Transportation, as well as working with industry groups and utilities on building these markets. Also, Texas coal

- fired facilities generally produce high

- quality coal combustion residuals that are appropriate for a number of beneficial use applications in highway construction building products and infrastructure building materials. In most areas of the state, Texas has developed a fly

- ash

- based concrete market producing high

- quality products. We believe that the EPA's prop osed options to regulate coal combustion residuals under the Subtitle C of RCRA threatens the great strides that Texas has made in dramatically improving the coal combustion recycling rates in Texas. The TCEQ has effective regulations in place to safely ma nage coal combustion residuals. Even though permits are currently not required, we do require registrations and monitoring of the material, which also provides safeguards in preventing the impacts to health and the environment. Texas regulations require th e characterization, classification, and submittal of that notification of the waste prior to disposal.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- DAL

- 0040

- 2 

### Organization 1 

### : Association of Electric Companies of Texas 

### Commenter 1 : Walt Baum Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.3 3.1.2 

### Comment Excerpt Text: The Texas Commission on Environmental Quality ove rsees the design, construction, monitoring, reporting, and final closure of all CCR disposal facilities. TCEQ's robust state regulatory program ensures the disposal and reuse of CCRs are conducted in a manner that is protective of
human health and the envi ronment. In summary, AECT strongly opposes the regulation of CCRs as a hazardous material and believes that Texas has a protective program that does not need a new federal program.366

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: TRANS

- DAL

- 0061

- 1 

### Organization 1 

### : Luminant 

### Commenter 1 : Usha Turner Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Cur rent Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The state of Texas, through the Texas Commission on Environmental Quality, already has a comprehensive regulatory program for the storage, the disposal of CCRs, that oversees the design, construction, monitoring, reporting, and final closure of all CCR disposal facilities.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for

p romulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furth ermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage ca ses to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made n o final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: TRANS

- DAL

- 0071

- 1 

### Organization 1 

### : Commenter 1 : Rogers Dennis Commenter Type: Private Citizen Classification: Substantive Comment Category:367

Current Task: Examine Context Assigned/Due: Other Sections: 3.1.1 

### Comment Excerpt Text: We know about by

- products from coal combustion such as arsenic, lead, boron, selenium, mercury, cadmium, thallium, and many other pollutants at levels that put humans and animals at risk. Coal ash dumped in unlined or clay

- lined ponds and landfills pose the greatest danger. When coal ash is deposited in landfills or impoundment structures, coal ash can be leached into
the groundwater. In West Texas, it can be blown by the wind throughout the watersheds and end up being washed into our surface water reservoirs when it rains. Whereas, underground water is scarce to nonexistent in West Texas, safe surface water from limited r ainfall becomes extremely important to all life, including humans, animals, birds, and fish. At least 23 states have poisoned surface water and groundwater supplies caused by improper disposal and storage of coal ash. Texas is second in the nation in coal ash generation. There are no leachate collection systems in Texas, and there is no groundwater monitoring. New Earthjustice/EIP, Environmental Integrity Project, show additional coal ash contamination in our state and the entire country. According to the EPA damage case assessment, proven damage cases in Texas include Brandy Branch coal ash dump in Harrison County, Southwestern Electric Power Company coal ash dump in Titus County, and unpermitted discharges in Texas Utilities Electric Martin Lake
Reservoi r in Rusk County. All three have leaked dangerous levels of selenium. Coal ash is inexcusably considered exempt waste under an amendment of the Resource Conservation and Recovery Act, RCRA. This is not acceptable. Industry is so diverse that it cannot reg ulate itself and consequently needs to be regulated with standards that protect the public as well as itself. Regulations have been unsuccessful in Texas and many other states. Regulation needs to be on a national level to include protective regulation of all states. The EPA must regulate coal ash to address the risks from the disposal and storage of the wastes generated by electric utilities. The EPA needs to support the RCRA Subtitle C designation to classify coal as a hazardous

waste.

Response: The A gency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The comm enter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect st ates to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D r egulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded t o many comments on state368

programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: TRANS

- DAL

- 0083

- 1 

### Organization 1 

### : Comme nter 1 : Eric Pastor Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: I've never previously provided formal comment on an EPA regulation, but after reviewing the proposed CCR rules and, more importantly, reading comments that characterize state regulatory agencies as not adequately monitoring CCR disposal sites and having re fused to do their jobs, I felt compelled to set the record straight for Texas, based on my firsthand experience. In my opinion, the rules and guidance of the Texas CCR management program as administered by the TCEQ are sound, and the TCEQ program staff ar e dedicated and competent. To support this conclusion, let me first start with a brief review of the process that must be followed before a CCR disposal facility can be used. Under Rule 335.6 of Title 30 of the TAC, a person that intends to store, process , or dispose of industrial solid waste such as CCR must provide 90 days' prior notice to the TCEQ. Elements of this notification, which we often refer to as a registration package, include information regarding waste composition, waste management methods, facility engineering plans and specifications, and the hydrogeologic setting of the proposed disposal facility. The registration packages that we produce in my firm usually include the groundwater monitoring plan, closure plan, and a post

- closure inspecti on and maintenance plan. Once submitted, registration packages are reviewed by TCEQ Waste Permits Division. I have found these reviews to be thorough, detailed, and comprehensive. Comments that we have received on registration packages have ranged from re quest for justification and monitoring well locations and statistical groundwater data valuation procedures
to details on waste

- handling methods. These regulations are supported by a series of technical guidance documents that cover topics ranging from si te selection to landfill design, construction and groundwater monitoring. These documents, which were first developed in the 1970s, are regularly reviewed and updated by TCEQ staff to ensure they are current. Potential releases from CCR disposal facilitie s do not go unchecked but are managed underneath
a well

- established Texas risk reduction program which has a nearly 15

- year track record of success in directing the investigation and remediation of environmental releases, and is supported by more than two dozen guidance documents. Last, I would like to note that in my frequent interactions with the engineers and scientists of the TCEQ programs, although I have not always been in complete agreement on all technical issues, I have found them to be solid prof essionals who take their mission of protecting health and the environment very seriously

Response: The Agency acknowledges and appreciates the comment.369



### Comment Number: TRANS

- DAL

- 0094

- 1 

### Organization 1 

### : Commenter 1 : Lev Guter Commenter Type: Private Citize n Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: So the contamination that's happening right now

-- I'm sure you've heard it before today, this report cited

-- but it's In Harm's Way, and it was done by the Environmental Integrity Project.
And the first two cases are from Arkansas. The

-- the first one i s the Independence Coal Plant. And the contamination of the 34 monitoring wells have been documented for widespread groundwater contamination. And we're talking heavy metals, mercury. That's 34 wells. That's

-- that's drinking wells that people are consumi ng every day. And the second problematic coal ash site that was documented in the report is from Flint Creek. And that's another coal ash site where there has been demonstrated damage to groundwater 360 feet away from the actual site. So this water is

-- it's moving, and people are drinking it. Just quickly, the Arkansas Department of Environmental Quality follows, in general, the minimum standards that the federal regulations impose. There are really smart people, hardworking people at ADEQ, but we hear time and again, you know, the regulations aren't there. If you want us to have stricter regulations, change the regulations. Well, that's why we're here today.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- DAL

- 0 097

- 2 

### Organization 1 

### : NRG Energy 

### Commenter 1 : Jeffrey Davis Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: We support the comments made by the Texas Coal Combustion Products Coalition and the Utilities Solid Waste Activities Group. Texas has a strong solid waste disposal program, and it has successfully managed disposal of CCRs under this program for decades. The program in Texas provides the regulatory oversight necessary to ensure that management of CCRs is protective of human health and environment. NRG requests that EPA work with the states and develop a program that recognizes the role of
each state to dev elop their own regulatory programs to ensure compliance with the newly adopted federal criteria.370

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- DAL

- 0122

- 1 

### Organization 1 

### : Commenter 1 : Whitney Pearson Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.2.2 

### Comment Excerpt Text: At least two sites in Oklahoma show that currently those who burn coal are being irresponsible.
The state regulatory agencies have failed to act, and we need strict, clear, enforceable regulations
of Subtitle C. In Oklahoma, three agencies regulate the fly ash dump in Bokoshe, as you heard earlier. For almost two years, citizens who are impacted daily b y the fly ash have called these agencies to fix the problems in Bokoshe, a problem that these agencies permitted to get out of hand. Many of us in Oklahoma have called our elected and appointed officials but only to find out

-- to ask them why they are no t addressing the situation in Bokoshe. They tell us that they don't have the authority or they don't see any violations or that it's someone else's responsibility. I've been to the fly ash pit in Bokoshe, Oklahoma, and I've seen documentation of the viola tions; and the failure of state agencies is obvious. The failure of state agencies is also apparent in Oologah, Oklahoma, where, for 30 years, the coal

- fired power plant has disposed of its fly ash in an unlined pit. No one monitored the groundwater there until 2008, and the data shows the contaminants have leached into the groundwater and there are heavy metals exceeding both federal and state maximum containment levels in the groundwater. The operator of the plant has acknowledged that it has contaminat ed groundwater beneath its facility, but unfortunately they claim that there is no proof that contamination has spread offsite. Isn't it clear that groundwater contamination doesn't confine itself within property lines? Isn't it clear that if the operator were acting responsibly, it would determine the extent of the pollution instead of denying its existence?

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- DAL

- 0126

- 1 

### Organization 1 

### : Public Citizen's Texas office 

### Commenter 1 : Tom Smith Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: But what's clear in Texas is that we have a significant level of contamination. I think i t's now up371

to 16 different lakes or bodies of water, almost all of which are downgradient, as opposed to downwind, from coal plants. The source of this is mysterious to all of us. It could be the emissions coming out the top of the stack or it could be lea chate coming out of the bottom. The problem is we don't know. We don't have adequate monitoring reported annually in ways that are understandable to folks around the plants, nor do we have federal supervision to make sure the data we're getting are accura te and adequate. We think there is a real advantage to Subtitle C in that it does require federal enforceability.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- DEN

- 0028

- 4 

### Organization 1 

### : Great River Energy 

### Commenter 1 : John Weeda Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: GRE has participated in research and contributed proactively to regulations ad ministered by the State of North Dakota Health Department, provide proper design for disposal facilities in North Dakota. These include lining and effective management and monitoring of the landfills, and this applies to our stations in North Dakota.

Res ponse: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- DEN

- 0049

- 2 

### Organization 1 

### : Arizona Public Service Company 

### Commenter 1 : Scott Davis Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: In Arizona, coal ash disposal units are regulated under the Department of Environmental Quality Aquifer Protection Program and the Department of Water Resources Dam Safety Program. Working in tandem, these programs impose stringent requirements to ensure the environment and public safety are protected.

Response: The Agency acknowledges and appreciates the comment.372



### Comment Number: TRANS

- DEN

- 0060

- 1 

### Organization 1 

### : Wyoming Department of Environmental Quality (DEQ) 

### Commenter 1 : Bob Doctor Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.2.4 

### Comment Excerpt Text: I manage Wyoming's solid waste permitting and corrective action program and Wyoming DEQ. I'm here with a written statement, so I'll try and be quick here. We regulate

-- and I'm sorry. We use the W word in Wyoming still

-- coal combustion waste,
which is regulated as a Subtitle D waste under rules that mirror EPA's Subtitle D requirements for municipal solid waste. We regulate it under three separate programs in the DEQ in Wyoming. Surface impoundments are regulated both by our water quality division as wa stewater ponds and under our state engineer's office under dam regulations for the construction of dams and dikes in the state engineer's office. These two programs both require permitting for all these impoundments. They have various degrees of monitorin g, engineer certification, inspections a minimum once every five years of these impoundments. I can speak more to solid waste since that's the program I manage. We permit these things almost like we do municipal solid waste landfills with virtually the sa me type of requirements for public participation, liners, other engineered containment systems such as caps, leachate management. We also require characterization of the waste. We encourage especially that. We require that for any beneficial use. We try t o encourage beneficial use through our solid waste rules and regulations. We also have requirements for monitoring corrective action. Again, another public requirement for participation if facilities must go into public corrective action mode.
We also re quire closure and long

- term post

- closure care for these facilities that amounts to about the same 30 years of post

- closure care that you would give to a municipal landfill. We believe that states are in a better position to regulate coal combustion waste than the EPA is. Most of these decisions, many are site

- specific conditions that require site

- specific knowledge of soils, groundwater, waste type, that stuff. We've heard that not all CCW is the same.

Response: The Agency acknowledges and appreciates t he comment.



### Comment Number: TRANS

- DEN

- 0099

- 2 

### Organization 1 

### : Colorado Department of Public Health and Environment 

### Commenter 1 : Joe Schieffelin Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:373

As background, the solid and hazardous waste program regulates all disposal and beneficial reuse of coal combustion residuals in Colorado. We have representative analytical data on the coal combustion residuals produce d in Colorado, and no data has ever indicated levels of
contamination close to those that would make the residuals hazardous waste. We have groundwater monitoring data around coal combustion residuals dewatering and disposal areas, and no data indicates a release to groundwater has occurred. However, if a release were to occur, we have enforcement authority to rapidly and effectively deal with noncompliant situations, including releases to soil, groundwater, surface water, and exposures to people. This incl udes administrative order authority with injunctive relief, corrective action authority, and penalties up to $10,000 per day per violation. Colorado actively uses these authorities in implementation of the solid waste program. Through this same regulatory construct, we safely and effectively regulate municipal solid waste every day, a waste stream with higher hazards than coal combustion residuals because it includes household hazardous waste, heavy metals, and organics, acidic, and alkaline materials.

Res ponse: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- KNX

- 0003

- 1 

### Organization 1 

### : Southern Alliance for Clean Energy 

### Commenter 1 : Josh Galperin Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Now, as Dr. Smith said, we've compiled this report on the state of coal ash regulation in Tennessee. It's important to understand how states regulate coal ash in order to understand the
di fferences between what will happen

-- whether Subtitle C or Subtitle D is ultimately promulgated. This report shows a surprising lack of oversight in Tennessee, a state that should be very proactive on coal ash regulation because of the Kingston disaster. So I want to just point out a few specifics that I've found in researching Tennessee's laws in some depth. First, the laws only specifically address coal ash in two instances. The first instance happens to also be the only

-- the one and only change that has been made to Tennessee's coal ash regulations since the Kingston disaster. And as it happens, this particular change has nothing to
do with the disaster itself. The change that I'm talking about, the first time that coal ash is mentioned in Kingston' s law

-- excuse me, in Tennessee's laws is a provision in the solid waste laws which requires a liner and final cap on coal ash landfills. Sounds great. It's a very important provision, except unlike much of the rest of the solid waste laws, the exemptions contained therein swallow the entire rule. The liner and cap is not required for structural fill; it's not required for agricultural uses or engineered uses; and most importantly, the "new safeguard"

-- I'm putting quotes around that for the record

-

- the "new safeguard" doesn't apply to surface impoundments, which are the type of ash storage that is clearly the most dangerous.374

The second specific mention of coal ash in Tennessee's law is with regards to permits by rule.
Certain uses of coal ash are allow ed without a true permit in Tennessee, without being subject to public scrutiny, and without the more stringent provisions of the normal permit by application process. So this is two instances only where Tennessee's laws actually address coal ash specifica lly, and both provide for broad exemptions over permissive uses of coal ash without substantial safeguards. Moreover, Tennessee does not regulate ash at all when it's stored in surface impoundments. So, to be clear, surface impoundments like the one in Ki ngston, the ash that's stored in those impoundments and those impoundments themselves are completely unregulated. The Safe Dam Act does not regulate these impoundments, the solid waste laws exempt impoundments, and NPDES permits only regulate the discharge s of wastewater from those impoundments. So there is no requirement for structural stability, groundwater monitoring, unit citing, leachate collection, closure, post

- closure care, financial assurances on impoundments like the one at Kingston. So, rather than going into further details, Dr. Smith submitted a copy of this report. If you have any further questions on it, please feel free to contact me at the Southern Alliance for Clean Energy.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state sol id waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts
involved in the dam age cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment N umber: TRANS

- KNX

- 0016

- 1 

### Organization 1 

### : Black Belt Citizens Fighting for Health and Justice 

### Commenter 1 : Barbara Evans Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt T ext: Local county government, the ones that begged for the coal ash to get the money, is run like a375

gang. If you cross them, none of your family and friends will ever get a job in Perry County. If you cross them, you'll get ostracized. If you cross them, you can bet the police departments will be on your back. People are afraid, and I can tell you it's with good reason. People are threatened with arrest if they speak out even at public meetings. And right now it's being litigated because the Perry County C ommission has violated the Alabama Open Meetings Act.
The state

-- the Alabama Department of Environmental Management is weak and underfunded. It's a permit machine. It's political. They never should have issued a permit for that landfill in the first plac e. Already the landfill owners have filed for bankruptcy. Already there's been illegal dumping of the leachate. We can't count on them.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- KNX

- 0059

- 2 

### Organization 1 

### : Tenn essee Riverkeeper 

### Commenter 1 : David Whiteside Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Currently, in the states of Tennessee and Alabama, we have conflicting standards. In Kingston, Tennessee where the TVA's coal ash disaster was, coal ash waste is being treated as hazardous and extremely dangerous where

-- to the point where the trucks that leave the facility have to go to great lengths to make sure that this material is washed off of them. Once it's trucked down to Uniontown in Perry County, Alabama, it has a different set of standards. It is not treated as a dangerous material down there. It is treated much more haphazardly. And one of the things we're asking the EPA to do in

-- in regulating this as hazardous waste will be to come up with uniform federal standards that the states could abide by to give a consistency between Tennessee and Alabama. Right now it's just not fair that one state can consider it a toxic substance and the other state is
not as concerned about it. I

-- that's extremely conflicting and we need guidance from the government to provide some sort of consistency among t he states.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and su rface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a dis cussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: TRANS

- KNX

- 0065

- 2 

### Organization 1 

### : Southern Alliance for Clean Energy (spoke as employee and citizen)376



### Commenter 1 : Katherine Stokes Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.1 9.3.11 

### Comment Excerpt Text: What we're talking about today are the wet impoundment ponds or the huge dry lan dfills of coal ash, the type that flooded the land, houses and river of our neighbors in Roane County, Tennessee. This type of coal ash that is stored in impoundment ponds or landfills should be regulated by EPA's proposed Subtitle C. This ash hasn't been treated and is not your regular household waste as Subtitle D would suggest that it is. As we witnessed with the TVA coal ash spill, coal ash is not effectively regulated by the state of Tennessee. As we've learned from this disaster, the siding and struc tural stability of these coal ash storage impoundments are not regulated. Neither is the potential for these chemicals to penetrate groundwater. As we've witnessed, we know the regulations are made as suggestions or guidelines rather than enforced, as the y would be in Subtitle D, that they are also not followed. EPA estimates Subtitle C could cause a 0.8% increase in our electricity bills. We need to spend a little bit of money now to regulate coal ash as insurance so that we won't see another very expensi ve, life

- destroying and very preventable accident like we saw almost two years ago here in Tennessee. Our electricity providers aren't afraid of taking risks because the cost is sent down to the customers. We are the ones that carry the burden. We're the ones who paid for the clean

- up of the Kingston coal ash spill, and we need federal backing so that this doesn't happen to us again.
EPA Sub

-- suggested Subtitle C is the best choice for Tennessee's safety, health and wallets. It will save us money and di stress in the long

- run by helping us avoid another disaster.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- KNX

- 0112

- 2 

### Organization 1 

### : University of Tennessee 

### Commenter 1 : Gregory Button Commenter Type: Academia Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.1 4.2.4 

### Comment Excerpt Text: Unless the EPA adopts the above

- mentioned option, our nation's citizens and our environment
will continue to rema in vulnerable to the toxicity of coal ash. The TVA ash spill has dramatically and tragically demonstrated the failures of relying on a patchwork of state regulation. It is imperative that the EPA have direct oversight over the generation of storage, trans portation, and the disposal of coal ash in order to safeguard the public and the environment. Subtitle D would continue to rely on a state

- by

- state patchwork of regulations, which time and time again has proven to be inadequate.377

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- KNX

- 0114

- 2 

### Organization 1 

### : Solar Valley Coalition 

### Commenter 1 : Brian Paddock Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Co ntext Assigned/Due:



### Comment Excerpt Text: I spent earlier this year for three solid months, along with others, trying to get modern coal ash containment legislation passed in Tennessee. We had complete agreement by the time we'd finished negotiations wit h the state department. What happened was that the afternoon before the first committee hearing, the Chamber of Commerce lobbyist made two phone calls, and the bill never even got a motion the next day. With that kind of opposition form powerful interests , the inability of the state agency and the legislature to protect us is evident

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- LVL

- 0016

- 3 

### Organization 1 

### : National Ready Mixed Concrete Association 

### Commenter 1 : Terry Jones Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: We, along with our state and national associations, believe that many states will establish their

own new laws that further limit the beneficial use of fly ash. Here's an example: Maryland's already proposed a new law requiring any product containing fly ash to be disposed of in a facility authorized to accept fly ash.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- LVL

- 0036

- 1 

### Organization 1 

### : Commenter 1 : Rick Clewett Commenter Type: Private Citizen Classification: Substantive Comment Category:378

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: I will use the findings of just

- conducted study by the Sierra Club, Kentucky Waterways Alliance and Global Environmental to make this point. The study entitled, "Slow Motion Spills: Coal Combustion Waste and Water in Kentucky," found that the

-- while 44 c oal ash

-- there are 44 coal ash ponds in Kentucky, anything like adequate information was available for only eight. In these eight cases, monitoring records did not record all CCW contaminants. In some cases, the
division had even allowed sites whose earl y records showed dangerous levels of toxici

-- toxic heavy metals to stop monitoring those pollutants." Despite this disturbing failure of the state to collect and archive adequate information on water quality near coal ash facilities, the study was able to reach three resounding conclusions: (1) Existing data point

-- data point to groundwater contamination caused by coal ash waste beneath every plant studied; (2) Kentucky regulatory program is not properly addressing this threat, instead, it's getting we aker; and (3) Kentucky is not comprehensively tracking where CCW contamination is going.
I'm not

-- I'm sure that in many states it is bad or worse. I

-- this is

-- I'm not out to

-- to get Kentucky. That's not the point. I live here; my family lives here ; many of my friends live here. We care what's happening to the people near the Cane Run facility, what's happening to the people near the Spurlock facility in eastern Kentucky. I'll just reference another study, "In Harm's Way: Lack of Federal Coal Ash R egulations Endangers Americans and Their Environment." The title says it all.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgat ing this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore

, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not res ponded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to s upport certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: TRANS

- LVL

- 0045

- 4 

### Organization 1 

### : Duke Energy 

### Commenter 1 : Debbie Nispel Commenter Type: Electric Utility Company379

Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Another significant flaw is that the allegations have been made without prior consultation with the very states whose programs the groups al lege are deficient. The states are contesting this allegation and charging that activat

-- activist groups have improperly characterized the
effectiveness of their state controls

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: TRANS

- LVL

- 0088

- 1 

### Organization 1 

### : League of Women Voters 

### Commenter 1 : Joan Lindop Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.2.4 

### Comment Excerpt Text: Much of Kentucky is dotted with limestone caves, which means that ground water travels miles very quickly. It's very hard to know where that ground water will end up once it

-- contaminated

water is there. We know it will go into the Ohio River. The League of Women Voters urges EPA to take charge. Already, several organizations in Kentucky have requested that the US EPA take back primacy from the Kentucky Division of Water. The failure of the Kentu cky Division of Water to enforce water quality standards in our waterways has resulted in many miles of polluted streams, streams that are not fishable or swimmable, as Kentucky Department of Water was required to report in the latest Kentucky Division of Water Integrated Report.380

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- LVL

- 0126

- 1 

### Organization 1 

### : Cumberland Chapter of Sierra Club 

### Commenter 1 : Hank Graddy Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: My specific focus is on what EPA identifies as the central issue, the adequacy of the state programs. And based upon my experience, the Kentucky program is woefully inadequate and requires an EPA floor to sit so that Kentucky will finally try to do what is right. I have cited the slow motion spills as authority for the need for this regulation. They conclude Kentucky's regulatory program is not properly addr essing this threat. Instead, it's getting weaker even as evidence of contamination mounted in state files. Kentucky reduced monitoring requirements, failed to commence enforcement actions, and continued to permit new ponds and landfills without proper cont rols. That report, slow motion spills, documents the magnitude of the problem, as far as we know it, the inadequacy of the state, and the fact that the problem is growing. My particular focus is on the Trimble facility where we submitted comments about th e adequacy of a particular permit. We asked for the permit should regulate failures. The state answered, we don't regulate failures. We said the permit should regulate groundwater. They say, we don't regulate groundwater. We said the permit should regulate coal combustion waste futures. They say, we don't do that under the KPDS. It's time to learn the lesson.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- LVL

- 0141

- 1 

### Organization 1 

### : Citizens Coal Council 

### Commenter 1 : Brian Wright Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: I've spent over a thousand hours reviewing permits, ground and surface monitoring records,
scient ific studies, and state regulations for coal combustion waste disposal sites. My research has revealed a repeated pattern of failure by states to address the risks posed to human health and the environment by these wastes. My own home state of Indiana, st ate regulators and site operators ignored numerous warning signs of contaminations at the R520 landfill and the Gibson power plant. As a result, the communities of Mount Carmel and the town of Pines lost their drinking water supply due to381

contamination fro m these wastes. Despite these two serious failures in state regulations on CCW, the state has refused to make any changes to their state rules on these wastes. In fact, impoundments in Indiana remain exempt from solid waste regulations. And it's not just Indiana that has a bad track record when it comes
to these wastes. In 1999, I did a state

- by

- state survey of state regulations on coal ash, and what I found is almost across the board for impoundments failure to implement even the most basic environmental safeguards, such as groundwater and surface water monitoring for coal ash disposal sites. Ten years later in 2009, I did the same survey and I found no significant improvement in regulations for these wastes, despite the mounting record of damage. People trust their state agencies to protect the environment and their health. The state agency repeatedly violated that trust when it comes to CCW. Now they want to be entrusted with implementing Subtitle D regulations when their track record shows that doing s o would be a great disservice to the people living around these facilities

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating t his subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases t o support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no fin al conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: TRANS

- LVL

- 0145

- 2 

### Organization 1 

### : Commenter 1 : Barbara McKasson Commenter Type: Private Citizen Classificatio n: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 6.1.1 

### Comment Excerpt Text: What is happening in my state of Illinois is a prime example of why we need the U.S. EPA to implement regulations for coal combustion waste. The state of Illinois has more contaminated sites from the inappropriate disposal of coal ash than any other state. A case in point is the situation at the Southern Illinois Power Cooperative, SIPC, at the Lake of Egypt south of Marion,382

Illinois near where I live. The holding ponds at SIPC are unlined and leaking into the groundwater. The plumes of toxic water have now spread off of SIPC's property and onto people's private land. According to a report on damaged cases of contamination from improperly disposed coal ash, monitoring wells by the SIPC power plant have registered maximum concentrations of cadmium
that are 3 5 times higher than the federal acute water quality standards and up to 352 times higher than the federal chronic water quality standards. Also, recent data on pond discharges to Saline Creek show high concentrations of aluminum, boron and manganese. This was documented in the report "In Harms Way: Lack of Federal Coal Ash Regulations Endangers Americans and
their Environment." Actually, only cadmium, boron, iron, and sulfate are being routinely monitored

-- monitored at
the SIPC site. Other toxics that ar e found in coal, such as arsenic, mercury, selenium and chromium are not even being monitored at the SIPC site. In addition, people I know who live in the subdivisions surrounding Lake of Egypt tell me that there are at least 20 trucks a day carrying coal ash from the power plant property to off

- site areas.
One off

- site area is an abandoned strip mine north of Williamson County Airport where the toxic coal ash is being dumped. There is no monitoring well, there are no liner and no state regulations to keep the toxic substances in this ash from seeping into the groundwater and nearby wells.
Another concern is the decades

- old coal ash ponds by SIPC are right by Lake of Egypt, which provides drinking water for about 10,000 people who live around Lake of Egypt. Local citizens in another area by Joppa, Illinois testified that coal ash waste is being dumped in piles from another plant and blows into the air when it dries. Citizens living close to the dump site complained at the hearing at

-- for permit for chronic and acute respiratory problems that they attribute to the coal ash blowing on their property. In December 2009, I attended a hearing concerning NPDES water discharge permit for the Met

South Coal Combustion Waste disposal facility owned by Electric Energ y, Inc. in Joppa, Illinois. At this hearing, officials with Illinois EPA explained that coal ash waste dump sites may require a solid waste permit from the Bureau of Land or they may be permit

- exempt. In fact, the IEPA official explained that the only requ irement for a coal ash waste landfill in Illinois is that the operator must provide Illinois EPA with documentation that a public official has been notified of the forthcoming dump. There is no opportunity for public input or debate. So, even though there is threat of toxic chemicals leaching into the groundwater from a dump, there is no special environmental consideration given to coal waste landfills. In fact, in Illinois, coal ash landfill requirements are less stringent that (sic) municipal waste landfi lls. Local citizens at the Met

South hearing testified that coal ash waste is being dumped in piles, and blows into the air when it dries. Citizens living close to the dump site complained at the hearing of chronic and acute respiratory problems that they attribute to the coal ash blowing onto their property. I have also been contacted by Wesley Logan, who grew up in Joppa, Illinois, and still has many relatives there. Wesley's father, Bobby Logan, sued LaFarge Cement Company and Electric Energy, Inc. for putting coal ash on Liberty Ridge Road by his house in Joppa, Illinois. Every time a vehicle drove by on those roads, the ash would fly up in the air, and spread to nearby yards and houses. Bobby Logan, his wife and other people on those roads got cancer, serious respiratory problems and other health problems. These threats to public health from using coal combustion waste in ways that release toxic chemicals into our air and water with virtually no regulations to contain or filter the toxins is totally un acceptable. According to the investigative report titled "In Harms Way," done by the383

Environmental Integrity Project, many state governments have few or no safeguards to protect the public from the spread of these toxins. Illinois and other states that hav e lax regulations or no regulations on coal combustion waste are even taking waste from other states with stricter standards. Thus, putting the people in Illinois at greater risk from these toxins.

Response: The Agency acknowledges and appreciates the com ment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamb le for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into sta te solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that a re otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts
involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: TRANS

- LVL

- 0152

- 1 

### Organization 1 

### : Commenter 1 : Steve Wilkins Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Kentucky has already demonstrated th at it cannot be entrusted to oversee the handling of coal ash. Your own agency has been critical of the Kentucky Department for Environmental Protection and its division of water. Kentucky has been very protective of any potential threat to
the coal indust ry and that protection follows coal throughout its life cycle. Coal, the industry, is coddled while miners, mountains, waterways, communities, whole regions are sacrificed in pursuit of profits. Without federal oversight, I fear that Kentucky will do for coal ash what it has done with 402 mining permits, favoring the coal life cycle over the environment it is supposed to protect. Do not allow Kentucky primacy in the oversight of coal ash.

Response: The Agency acknowledges and appreciates the comment.384



### Comment Number: TRANS

- LVL

- 0154

- 1 

### Organization 1 

### : E.ON U.S. 

### Commenter 1 : Mike Winkler Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: In Kentucky we've had regulations governing CCR landfills and beneficial reuse since 1992 and impoundment safety regulations for an even longer period. LG&E and KU have CCR management protocols in place that ensure regulatory compliance and protection of p ublic health and the environment. The Kentucky regulatory program works very well. There's never been a significant spill from any LG&E or KU CCR facility or any other CCR facility in Kentucky. No LG&E or KU CCR facility has ever posed a problem for local water supplies.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- LVL

- 0179

- 1 

### Organization 1 

### : Commenter 1 : Fred Fischer Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.1 

### Comment Excerpt Text: I've spent 44 years in the construction industry, built all the sewers and streets in the central business district here, supervised the foundation of a 41

- story building, the First National Bank building, and have supervised over 1,000 home

-- homes and a partments. So, when I read several months ago about the details of the acreage, the depth and the liner in the coal ash pond, I was amazed and appalled. I know that we can't, for instance, design flood walls for 500 years, but
liners are

-- they're

-- it's going to leak. It's only a matter of time before it gets punctured by something or it wears out. So, that said, our west end

-- and again, I

-- I agree because the west end is where the poor people are, it's where industry has set up shop. Lot of us beli eve anecdotally that there's a lot more cancer in our west end than there is in the rest of the community, and we can't afford more. Another citizen said something to the effect that Kentucky was bought and paid for by coal. I
don't know about the whole s tate. I certainly know some politicians who aren't. I think the people who oversee the coal industry pretty well are. Because of that, I ask you to please institute Subtitle C. Let the feds do the job right, because Kentucky hasn't and won't

Response: The Agency acknowledges and appreciates the comment.385



### Comment Number: TRANS

- PIT

- 0003

- 1 

### Organization 1 

### : Mountain Watershed Association 

### Commenter 1 : Beverly Braverman Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Given the health impacts, treating CCW as a benign substance is not low cost. PA DEP recently issued the local summit mine fill permit, which is now being appealed in eastern PA's Schuylkill County. Th ey issued it without a baseline monitoring. They issued it without monitoring wells and peoples' drinking water wells. Those drinking water supplies are downgradient. If this waste was designated a C waste, this irresponsible handling would end.

Response : The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA e xpect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments rela ting to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to su pport any of the final rule’s provisions.



### Comment Number: TRANS

- PIT

- 0074

- 2 

### Organization 1 

### : Clean Water Action 

### Commenter 1 : Tom Hoffman Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.2.4 4.2.1 

### Comment Excerpt Text: It is our understanding that the EPA has two proposed regulatory options for coal ash

- Plan C and Plan D. Clean Water Action is supporting the Strong Option, Plan C, that would provide
basic environmental and public health safeguards backed up with federal enforcement and financial accountability. We need protection from coal ash cradle to grave and the Subtitle C386

option gives us that. We do not support the status quo option that relies on citizen suits or possible state regulations for enforcement. Pennsylvania is a resource rich state, but our residents have and will continue to pay a high price for that. Streams that are no longer life sustaining. Air that sends kids to the hospital with asthma
at four times the national rate. Flammable drinking water in peoples' homes. Leaving things to the state is not an option here in Pennsylvania. We are facing severe budgetary shortfalls and our DEP has been slashed to the bone. Our communities are facing serious e nvironmental threats from the booming natural gas drilling industry. Our Department of Environmental Protection does not have the necessary resources to protect us from those dangers let alone do what is necessary to regulate coal ash. Clean Water Action s upports strong federal regulations on coal
ash.

Response: The Agency acknowledges and appreciates the comment



### Comment Number: TRANS

- PIT

- 0098

- 2 

### Organization 1 

### : Center for Coalfield Justice 

### Commenter 1 : Raina Rippel Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Within our state, the Pennsylvania DEP regulations represent a lack of state regulatory oversight and enforcement, because PA's DEP advocates coal ash is beneficial. Given the known or suspected health consequences of major coal ash repositories, such as Little Blue, and probability that minefilling may leach into groundwater, such a beneficial use designation, is downright dangerous, and serve s only to pander to industry's need for reuse or improper disposal of this
toxic substance.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: TRANS

- PIT

- 0102

- 1 

### Organization 1 

### : Pennsylvania Department of Environmental Protection 

### Commenter 1 : Mike Forbeck Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Pennsylvania has residual waste regulations in place that govern the tran sportation, storage and disposal of CCR. Their regulations are similar to the Commonwealth's RCRA Subtitle D authorized municipal waste regulations and have been in effect since 1992. CCR landfills that have been designed and operated in accordance with th ese regulations have not resulted in3 87

pollution to groundwater, surface water or air, and these are the same residual waste regulations that were used as a template for EPA's existing Guide for Industrial Waste Management. Pennsylvania's successful manageme nt of CCRs including tracking of historical waste analysis data generated over the last 30 years, does not indicate in any way the need for hazardous waste designation EPA is proposing. According to EPA, the design and performance standards for the propos ed regulations will likely be the same no matter what regulatory scheme is chosen. The major differences are that EPA asserts such a designation is necessary for it to retain and exercise appropriate enforcement authority and EPA cannot require states to p ermit landfills under Subtitle D proposal. Pennsylvania regulations already require performance standards that exceed those outlined in the Subtitle C or D proposal. By current regulations, Pennsylvania also requires facilities to be permitted or authorize d to manage CCRs. As to the need for the EPA enforcement, Pennsylvania's Solid Waste Management Act authorizes the utilization of state enforcement authority is warranted. The use of this approach has been successful for Pennsylvania, as evidence by the 9 6 percent compliance rate. In addition, EPA already has broad 7003 enforcement authority and, therefore, does not need the additional authority under Subtitle C. The detrimental effects of Subtitle C management are substantial and could effect beneficial use, cost and the capacity concerns for the disposal of this material. Pennsylvania continues to improve its regulations and, in fact, new regulations regarding the Pennsylvania use of CCRs are expected to be finalized later this year that incorporates rec ommendations from the National Academy of Sciences, which provides further evidence of the efficacy of Pennsylvania's current

program.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



# CommentWorks ® 

# Issue Report388



### Initiative: Coal Combustion Residuals Proposed Rule 

### Client Name: Agency Selected Options 

### : Include Commenter Include Organization
Include Additional Commenters
Include Additional Commenter Organizations Include Commenter Type
Include Classification Include Category
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### Number of Issues: 1

Section 7.1.1.3

- Enforcement and state oversight Total Number of Submissi ons: 29 Total Number of Comments: 43



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 01877

- 2 

### Organization 1 

### : Commenter 1 : Jane M. Feibel Commenter Type: Private Citizen Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comm ent Excerpt Text: The existing containment ponds holding the toxic coal ash at Labadie are already a threat to nearby residents both in their well water and in the air. Consider an increase of this waste to a million tons a year surrounded by levees that we know are not always good enough. Any leakage or flooding will threaten the water supply of that area, Jefferson County , as well as a large part of St. Louis County that draws it drinking water from the Missouri river .

AmerenUE says it will do tests t o see if it the huge dump will be safe (by our outdated regulations) If The state and/or EPA should require independent studies for safety and not let do that testing themselves. . Have we learned nothing from our scientific knowledge, our natural history of massive floods, and bad history of corporate building, or are you and other protecting agencies too politically entwined, too self

- serving, too stupid to see the obvious and act. Our nation has history and exposure and can look back and study the effect s of industrial byproducts and waste. We have the technology to do this. We need coal ash management regulations that are389

derived from independent science and leaching studies that would be funded by the government.

We must have regulations which specify that coal ash waste cannot be landfilled in floodplains or areas in which it is probable that it will come in contact with water, migrate off site or be subject to erosion. AmerinUE wants to dump on a flood plain behind a levee. Our levees and dykes and co ffer dams fail; very recent events are unfortunate proof of this. AmerenUE proposes to heap the liquid ash on top of compacted clay with a plastic liner encircledwith an earthen
birm

-- in earthquake country. Leave the flood plains to the farmers. We despera tely need regulations now that prohibit current or future disposing of coal ash waste and other toxic industrial waste in mines where it can leach into both water aquefors and surface water.

We need strong federally enforceable regulations of coal ash was tes from cradle to grave . AmerenUE is moving at lightening speed to take advantage of our outdated protections: weak zoning codes, vague regulations laws. They call it a ‘landfill’; it is a toxic dump. This could be stopped right now. But, will any of our government offices have the fortitude and daring to do this? Will they stop this in its track and design regulations that will require AmerenUE to build factories to convert its ash to products that are not toxic

--- this can be done

-- and not allow them jus t to dump the ash. Companies must be forced to dispose of their waste in a permanently safe

way.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s ration ale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this ru le. Furthermore , the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is re lying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 10 

### Organization 1 

### : Kansas Department of Health and Environment 

### Commenter 1 : William L. Bider Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.2.5390



### Comment Excerpt Text: In addition to the high degree of regulator y oversight by the KDHE solid waste permitting program, KDHE also routinely inspects these facilities. KDHE inspects all permitted solid waste storage or disposal areas at least one time per year. During inspections, all waste management practices are eval uated with respect to applicable regulations and permit conditions and the integrity of the containment systems is visually examined. On an as needed basis, KDHE solid waste permit engineers also visit these facilities to assess compliance related to desig n, construction, operations, and monitoring.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 05721

- 1 

### Organization 1 

### : Hodges, Harbin, Newberry & Tribble, Inc. 

### Commenter 1 : William F. Hodges Commenter Type: Other Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.2 4.1.1 4.2.2 4.4.5.2.1 7.1.2.5 10.4.2 

### Comment Excerpt Text: In response to, the request, for comments and as a Professiona l Engineer actively involved in CCR Disposal, I enclose the following:

1 . EPA should select the Subtitle D option. Otherwise, a material that is in no way hazardous
will be mis

- characterized as hazardous waste.

2 . Declaring this product a Subtitle C waste will bring the reuse market to a standstill due to the stigma EPA would be placing on the product as hazardous waste.

3 . To safeguard public health, all Subtitle D criteria (both siting and design) should be required
of the CCR.

4. All future la ndfills receiving CCR must perform a complete stability evaluation by a professional engineer to assure no slope failures. Experience has proven that CCR behaves very differently than MSW or other waste types.

5. States should be encouraged to amend thei r Subtitle D rules to incorporate CCR. Regulation of this activity should be handled by the states with oversight by EPA.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. In addition, the commenter is391

urged to refer to the technical volumes of the response to comment docu ment for a discussion
of the technical issues raised in this comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 108 

### Organization 1 

### : Kentucky Department for Environmental Protection 

### Commenter 1 : R. Bruce Scott Commenter Type: State Government Classificati on: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 9.3.7 9.4.2 

### Comment Excerpt Text: The Commonwealth questions the low enforcement rate (48%) given for citizen and state lawsuits under RCRA. Kentucky has observed a much higher compliance rate with its current ash rules in 401 KAR Chapter 45. The state uses the solid waste permitting branch, the field office inspection staff, and the Division of Enforcement to require acceptable performance. Most, if not al l, of the utilities strive to comply with existing regulations in order to present a good public image for the Public Service Commission as well as any Planning and Zoning hearings. The basis for this assertion by EPA appears to be that EPA believes absent its personal involvement in enforcement of CCR requirements, that enforcement will not occur by the states. In addition, it appears that EPA believes that its involvement in enforcement will result in better enforcement and compliance as contrasted to the states ability.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 115 

### Organization 1 

### : Kentucky Department for Environmental Protection 

### Commenter 1 : R. Bruce Scott Commenter Type: State Government C lassification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Enforcement of existing special waste requirements are handled similar to enforcement of contained landfill permit requirements. All permitting is done through the DEP Central Office to ensure consistency across the state. Operational inspections are performed by ten Regional Offices located throughout the state. Any enforcement actions identified by the Regional Offices
are referred to a central Division of Enforcement for resolution.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06275

- 23 

### Organization 1 

### : Lansing Board of Water and Light (BWL) and Michigan State University392

(MSU) 

### Commenter 1 : Jeffrey L. Woolstrum Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.2.5 

### Comment Excerpt Text: Part 115’s Requirements On CCR Disposal And Use Are Enforceable By State And Local
Authorities.

The requirements imposed by Part 115 on the disposal and management of CCRs are enforceable by MDNRE, Michigan counties, and, in certain circumstances, municipalities. MDNRE is authorized to enter any l icensed disposal area “for the purpose of inspecting or investigating conditions relating to the storage, processing, or disposal” of CCRs. [Footnote 24: M.C.L. § 324.11516(3).] MDNRE is required to inspect each licensed disposal area at least four times

a nnually and prepare a written inspection report. [Footnote 25: M.C.L. § 324.11519(3).] In addition, MDNRE, a county health officer, or any other law enforcement officer may inspect a vehicle that is transporting CCRs along a public road to determine if the vehicle is in compliance with Part 115 and the Part 115 Rules. [Footnote 26: M.C.L. § 324.11526.] In the event of a violation, MDNRE may issue a cease and desist order, [Footnote 27: The order may specify a schedule of closure or remedial action. M.C.L. § 324.11519(2).] establish a consent decree, issue a final order revoking, suspending, or restricting a permit or license, or issue an order summarily suspending a permit or license if the violation constitutes an emergency or poses an imminent risk of inju ry to the public health or the environment. [Footnote 28: M.C.L. § 324.11519(4).] A county health officer may also issue a cease and desist order or establish a consent agreement specifying a schedule of closure or remedial action. [Footnote 29: M.C.L. § 3 24.11519(2).] MDNRE, a health officer, or a law enforcement officer may order a CCR transportation unit out of service if it does not satisfy the requirements of Part 115. [Footnote 30: M.C.L. § 324.11528(3).] The Michigan Attorney General may bring a judi cial enforcement action against any person in violation of Part 115. [Footnote 31: M.C.L. § 324.11546(1).] A Michigan municipality or county may also bring a judicial enforcement action against any person in violation of Part 115 within its jurisdictional boundaries. [Footnote 32: M.C.L. § 324.11546(1).] The Michigan Attorney General, a county or a municipality may seek any appropriate relief, including injunctive relief, in such enforcement actions. [Footnote 33: M.C.L. § 324.11546(1).] In addition, a cour t may impose a civil fine of up to $10,000 for each day of violation and order the violator to pay natural resource damages and reimburse the State for its surveillance and enforcement costs incurred as a result of the violation. [Footnote 34: M.C.L. § 324 .11546(2), (3).] In addition to civil fines, Part 115 imposes criminal sanctions on persons who violate the provisions of Part 115, the Part 115 Rules, or a permit, license or order issued under Part 115. Such a violator is guilty of a misdemeanor punishab le by a fine of up to $1000 per offense and the costs of prosecution. [Footnote 35: M.C.L. § 324.11549.]

Thus, Part 115 imposes strict requirements on the use and disposal of CCRs, which are fully enforceable to state and local authorities. There is simpl y no need for federal oversight of these activities in Michigan.393

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 25 

### Organization 1 

### : Earthjustice et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.2.5 4.4.9.3 

### Comment Excerpt Text: viii. States Fail to Require Financial Assurances for CCR Landfills and Surface Impoundments.

Financial assurance for landfills and surface impoundments is a critical safeguard and an important tool for ensuring safe waste disposal operations. Fewer than half of the states surveyed, however, require financial assurances for all CCR landfills, and only four states mandate financial assurances for all CCR surface impoundments.

[ see original comment for Table 19. Are Financial Assurances Mandatory for CCR Landfills?] [ see original comment for Table 20. Are Financial Assurances Mandatory for CCR Surf ace Impoundments?]

Response : T he Agency appreciates and acknowledges this comment. In the proposal, the Agency stated that the RCRA subtitle D alternative did not include proposed financial responsibility requirements and that any such requirements would be proposed separately. The Ag ency solicited comment on whether financial responsibility requirements under CERCLA section 108(b) should be a key Agency focus under a RCRA subtitle D approach. While the Agency received numerous comments urging the Agency to establish financial responsi bility as part of the subtitle D option, the CERCLA 108(b) option did not receive significant support. As discussed in the proposal and reiterated here, EPA will not be requiring financial assurance requirements as part of this rule. The Agency however wi ll continue to investigate the use of other statutory authorities (e.g., CERCLA) to establish financial responsibility requirements for owners or operators of CCR landfills, CCR surface impoundments and any lateral expansion.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 36 

### Organization 1 

### : Earthjustice et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.4.2.2394



### Comment Excerpt Text:
2. The States’ Failure to Enforce Existing Subtitle D “Open Dumping” Guidelines has Resulted in the Proliferation of Illegal Open Dumps.

The RCRA subtitle D guidelines that apply currently to the disposal of coal ash are found in 40 C.F.R. Part 257. [Footnote 14 0: Criteria for Classification of Solid Waste Disposal Facilities and Practices, 40 C.F.R. §§ 257.1

– 57.4.] The extent to which states are currently enforcing these guidelines offers a measure that EPA must use to predict the future effectiveness of subtitl e D. In fact, the failure of any state to adopt these guidelines and the continuing failure of states to enforce the guidelines has resulted in the operation of numerous illegal “open dumps.” In short, given the lack of current subtitle D adoption and enfo rcement by states, the prognosis for new D guidelines is exceedingly grim. Today’s straightforward open dumping standards are routinely violated, yet these blatant violations appear to be wholly ignored by state regulators.

Under RCRA, states must prohibi t any solid waste management practice or disposal that constitutes the open dumping of solid waste. [Footnote 141: 42 U.S.C. §§ 6944(b), 6943(a)(2).] RCRA distinguishes between two kinds of solid waste disposal facilities

— sanitary landfills and open dumps. [Footnote 142: 42 U.S.C. § 6944.] 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. [Footnote 143: Id. ] While RCRA clearly prohibits open dumps and the open dumping of solid waste, [Footnote 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 so lid waste or hazardous waste which constitutes the open dumping of solid waste or hazardous waste is prohibited...”)] many CCR units have fallen through the regulatory cracks and are currently operating in violation of this federal prohibition.

Rules promul gated pursuant to RCRA’s statutory prohibition describe the criteria used to define open dumps. [Footnote 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 prohi bited under [42 USC § 6945].” 40 C.F.R. § 257.3.] The criteria pertaining to protection of surface water and groundwater are particularly relevant to coal ash disposal. In sum, a solid waste disposal facility or site will be deemed an open dump if (1) it c ontaminates an underground drinking water source beyond the solid waste disposal boundary, [Footnote 146: 40 C.F.R. § 257.3

- 4]or (2) if it causes a discharge of pollutants in violation of the Clean Water Act. [Footnote 147: Id. § 257.3

- 3.] Many CCR disposa l sites are in violation of the criteria, and examples of these violations are
described below.

a. Open Dumping Established by Groundwater Contamination

The subtitle D guidelines define open dumps as solid waste management facilities that contaminate gr oundwater: “A facility or practice shall not contaminate an underground drinking water source beyond the solid waste boundary or beyond an alternative boundary. . . .” [Footnote
148: Id. § 257.3

- 4(a).] The regulation provides the following definitions to de termine whether a facility meets this standard for constituting an “open dump.” To “contaminate” means to actively cause the exceedance of a maximum contaminant level (MCL) listed in Appendix I to 40 CFR395

257. [Footnote 149: Id. § 257.3

- 4(c)(2).] “Undergroun d drinking water source” means either an active drinking water supply or a potential drinking water supply, defined as any groundwater with less than 10,000 mg/L total dissolved solids. [Footnote 150: Id. § 257.3

- 4(c)(4).] “Solid waste boundary” means the p erimeter of the disposal area, which in most cases is an area smaller than the property of the facility housing the dump. [Footnote 151: Id. § 257.3

- 4(c)(5).] An “alternative boundary” might be used instead of the solid waste boundary to monitor compliance with the open dumping prohibition. An alternative boundary can be established by a state or by a court, but only if the state or court “finds that such a change would not result in contamination of groundwater which may be needed or used for human consumpt ion.” [Footnote 152: Id. § 257.3

- 4(b).] 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 regulati ons, responsibility for the enforcement of this prohibition rests with the states and citizens. [Footnote 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...pro vide minimum criteria to be used by the States to define those solid waste management practices which constitute the open dumping of solid waste or hazardous waste and are to be prohibited...” 42 U.S.C. § 6907(a).]

States have not been able to meet this enf orcement responsibility, as seen by the large number of apparent violations of the open dumping prohibition. These include the following coal ash dumps: Duke Energy’s Gibson Generating Station, Princeton, Indiana : Wells downgradient of the CCR
landfill hav e shown levels of arsenic exceeding the Appendix I limit of 50 ug/L. [Footnote 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 significantl y higher arsenic standard, open dumping violations are still rampant at CCR disposal sites.] The Indiana Department of Environmental Management has not taken official action [Footnote 155: Envtl. Integrity Project & Earthjustice, Out of Control: Mounting D amages from Coal Ash Waste Sites (Feb. 24, 2010) at 19.]

- Mirant’s Brandywine Coal Ash Landfill, Brandywine, Maryland : Levels of cadmium as high as 500 ug/L in onsite groundwater significantly exceed the Appendix I MCL of 10 ug/L [Footnote
156: Id. at 25 .] ]

- Consumer Energy’s Karn and Weadock Generating Facilities,Essexville, Michigan : Arsenic over 400 ug/L was detected in groundwater near the landfill and beyond property line. [Footnote
157: Id. at 28.]

- Progress Energy’s Lee Plant,Goldsboro, North Car olina : Arsenic has been measured at up to 440 ug/L in groundwater migrating toward homes less than half a mile away. [Footnote 158: Id. at 40.]

- Duke Energy’s Belews Creek Steam Station, Belews Creek, North Carolina : Groundwater monitoring since 2005 has shown arsenic exceeding Appendix I levels. [Footnote 159: Id. at 50.]

- 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. [Footnote
160: Id. at 81.]396

- SCE&G’s Wateree Station in Eastover, South Carolina : On

- site groundwater at over 100 ug/L contains arsenic exceeding Appendix I standards. [Footnote 161: Id. At 89.]

- 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. [Footnote 162: Env. Integrity Project, Earthjustice, & Sierra Club, In Harm’s Way: Lack of Feder al Coal Ash Regulations Endangers
Americans and Their Environment 69 (Aug. 26, 2010) (Jeff Stant, ed.) [hereinafter In Harm’s Way ], available at http://www.environmentalintegrity.org/news_reports/documents/INHARMSWAY_FINAL3.pdf. )]

- First Energy’s Bruce Ma nsfield Power Plant, Little Blue Run Surface Impoundment, Greene Township, Pennsylvania : [Footnote 163: Id . at 161.] Onsite groundwater wells show exceedances of Appendix I MCLs for fluoride and lead. [Footnote 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.] Off

- site residential wells have exceeded Appendix I MCLs for barium, cadmium, an d lead. [Footnote 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.]

- Allegheny Energy’s Hatfield’s Ferry Power Station, Masontown Pennsylvania : [Footnote 166: In Harm’s Way , at 174.] Groundwater exceeds Appendix I levels for arsenic, with concentrations as high as 3.4 mg/L. Although Pennsylvania has been involved in enforcing surface water laws, it has taken no action on the groundwater issue.

- AES’Cayuga Coal ash Disposal Landfill, Lansing, New York : [Footnote 167: Id . at 112.] Groundwater wells have exceeded the Appendix I MCL for selenium.

This is by no means a complete list.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final s ubtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.397



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 063 15

- 37 

### Organization 1 

### : Earthjustice et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.4.2.2 7.1.2.5 4.2.4 

### Comment Excerpt Text: Table 29 shows the results of damage reports compiled by Environmental Integrity Project, Earthjustice, and Sierra Club [Footnote 168: Id. at 174; Out of Control .] Forty sites fit the current definition of open dumping

— these landfills and impoundments have caused on

- site groundwater to exceed Appendix I MCLs. Fifty

- four sites have caused groundwater to exceed current EPA
MCLs

— these sites would therefore be subject to the remediation requirements of the proposed changes to the subtitle D open dumping criteri a. It is important to remember that groundwater monitoring requirements are often absent or inadequate. This list is limited to those sites for which data are available, but we expect that many more sites have been contaminating groundwater in violation of the RCRA regulations. Although this list is incomplete, it vividly demonstrates that faith in state enforcement of subtitle D regulations is misplaced. The current criteria, contrary to their statutory purpose, have failed to ensure that there is “no reas onable probability of adverse effects on health or the environment.” [Footnote 169: 42 U.S.C. § 6944(a).] 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 ).

[ see original comment for Table 29. On

- site groundwater data exceeding Federal Primary Maximum Contaminant Levels (MCLs) or RCRA open dumping MCLs. [Footnote 170: 40.C.F.R.§ 257, Appendix I.] (Table adapted from “In Harm’s Way” and “Out of C ontrol” damage reports. [Footnote 171. In Harm's Way , at 124

- 31; Out of Control , at 19.])

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state398

programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 38 

### Organization 1 

### : Earthjustice et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.4.2.2 7.1.2.5 

### Comment Excerpt Text: b. Open Dump By Violating the Clean Water Act

A second criterion defines open open dumps as facilities that discharge pollutants “in violation of the requirements of the National Pollu tant Discharge Elimination System (NPDES) under Section 402 of the Clean Water Act.” [Footnote 172: 40 C.F.R. § 257.3

- 3(a).] Many coal plants are in violation of the Clean Water Act, either by discharging without a NPDES permit or by discharging in violati on of a NPDES permit. These include the following:

- Duke Energy’s Gibson Generating Station, Princeton, Indiana : Discharges of wastewater with selenium concentrations as high as 14 ug/L occur without a permit. [Footnote 173: Out of Control, at 19.]

- Mi rant’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. [Footnote 174: Id. at 26.]

- 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. [Footnote 175: Id. at 72.]

- Reliant Energy’s Fern Valley Coal Combustion Waste Landfill, Elrama, Pennsyl vania : It appears that over 90% of the water discharging from this site does not pass through permitted outfalls. The NPDES permit for the controlled outfall through which the small remainder flows does not include limits for arsenic, selenium or lead. [Fo otnote 176: Id. at 78.]

- Portland Generating Station’s Bangor Quarry Ash Disposal Site, Bangor, Pennsylvania : Known discharges of boron, selenium, and cadmium are apparently unauthorized by the site’s NPDES permit. [Footnote 177: Id. at 85

- 86.]

- Americ an Electric Power’s John Amos Power Plant, Winfield, West Virginia : Discharges violate NPDES permit limits for selenium, contributing to selenium concentrations in the receiving waters that exceed state standards and concentrations in fish that exceed prop osed EPA criteria. [Footnote 178: Id. at 105

- 06.] 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. [Footnote 179: In Harm’s W ay, at 124

– 31.]

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for399

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furt hermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA ha s not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage c ases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 40 

### Organization 1 

### : Earthjustice et. al. 

### Commenter 1 : Lisa Evans Commenter T ype: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.4.2.2 7.1.2.5 4.2.4 

### Comment Excerpt Text: In sum, the regulation of coal ash disposal practices under subtitle D is intended to prevent the risk of adverse health and environmental impacts. The mechanisms built into the law include

state

- enforced prohibitions of unpermitted surface water discharge s and groundwater contamination. Yet the risk is not diminished if states consistently fail to enforce the basic requirements of Subtitle D. The lists above show that many landfills and surface impoundments are discharging selenium and other pollutants in violation of NPDES permits and that seeps from surface impoundments and landfills discharge without abatement. Many more sites are leaching arsenic, fluoride, lead, and other contaminants into aquifers that are potentially or actively supplying drinking wa ter. These prohibited “open dumps” illustrate that states are not enforcing current federal guidelines. The present guidelines are few and straightforward. It is unreasonable to believe that states will do a much better job with the much more complex guide lines proposed under EPA’s subtitle D option.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is
also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.400

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the

te chnical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of t hose programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 63 

### Organization 1 

### : Earthjustice et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 8.6.1 7.1.2.5 

### Comment Excerpt Text: 5. State Regulatory Responses Have Been Inadequate.

State regulatory agencies have done little to respond to contamination fr om CCR disposal sites. Repeated evidence of contamination at monitoring points rarely results in any action beyond assessment monitoring to address the problem. For example, of 35 sites that contaminated groundwater in the In Harms Way Report, [Footnote 33 1 0 ( renumbered and corrrected per #10492, with additions in bold ): In Harm’s Way Executive Summary ] monitoring data clearly indicate the contamination was moving offsite at 29 of the sites. In other words, the farthest downgradient well before the property line was found to be contaminated over baseline concentrations and relevant standards at these 29 sites. States had required assessment monitoring in onsite wells in response to increases in contamination at 18 of the sites. Off

- site monitoring had only o ccurred at 8 sites (and this was not required in most of these instances, but done voluntarily by the utilities). Efforts to investigate the source or determine the extent of contamination have only occurred at four sites. At no site has the contamination been halted or
remediated.

Even when people are likely to be in harms way, state agencies routinely fail to take action to halt or clean up contamination from CCR disposal sites. At 15 of the 35 sites referred to above, state and county well records indic ate at least five private residential (drinking water) wells are within two miles of the site. At 13 of those sites, wells are located in the direction that contamination is moving. These include the Joliet #9 site in Illinois, the Cardinal, Gavin, Musking um and Uniontown (a.k.a., Industrial Excess Landfill) ( corrected per #10492 technical corrections, with additions in bold ) sites in Ohio, the Northeastern site in Oklahoma, the Fayette site in Texas, the Flint Creek site in Arkansas, the Lansing site in Io wa, the Big Stone site in South Dakota, the Bruce Mansfield and Hatfield’s Ferry sites in Pennsylvania, and the
Rodemacher site in Louisiana. All of these sites except for Muskingum and Uniontown401

( corrected per #10492 technical corrections, with additions in bold ) 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. Con tamination of numerous wells has been documented
at both of them.

Even after contamination is found in off

- site drinking water wells, the following examples illustrate that regulators have taken decades to act and done little to halt the contamination or stop further human exposure until its it is ( corrected per #10492 technical corrections, with
deletions in strikeout and additions in bold ) too late:

- At the Industrial Excess Landfill in Uniontown, dozens of residential wells were contaminated by the use of at least one million tons of industrial coal ash in a sand and gravel quarry where solvents and other industrial wastes were disposed in the 1960s and 70s before the site was closed and eventually became a Superfund NPL site in 1986. Court documents est ablish that coal ash was the only metal

- laden waste dumped at this site that could be the source of antimony at 52 times the MCL, beryllium at 30 times the MCL, cadmium at 53 times the MCL, lead at 46 times the MCL, chromium at 17 times the MCL, arsenic at 13 times the MCL, thallium at 6.5 times the MCL and nickel at 22 times its former MCL in residential wells and monitoring wells. In 1987 USEPA required 100 homes west of the site to be provided with free public water. Yet despite the OH EPA’s assertion th at metal concentrations were rising in contaminant plumes from the site in the mid 1990s, USEPA determined that this cleanup remedy was complete in 2005 without remediating contamination flowing from the landfill to the north and south into neighborhoods. Wells as much as 1,000 feet offsite to the north have had exceedances of MCLs for cadmium, chromium, lead, selenium, and thallium in samples collected from 1997 to 2001. Yet 19 monitoring wells were decommissioned in 2004, including 8 where exceedances hav e occurred in residential areas not provided with public water. In fact, analysis for metals was stopped at all remaining monitoring wells in 2004. Residents in these areas who cannot afford a
hook

- up fee continue to use private wells and face potentially daily exposure to high levels of toxic metals. Since the early 1990s, high cancer incidence has been reported in neighborhoods immediately to the southwest, west and northeast of the landfill. [Footnote 332 1 ( renumbered per #10492 ): In Harm’s Way, at 133

– 4 3.]

- At the Bruce Mansfield’s massive unlined Little Blue Surface Impoundment, multiple drinking water wells have been contaminated with cadmium up to 170 times the MCL, lead 120 times the MCL, barium 3 times the MCL, arsenic up to 2.5 times the MCL, and other constituents such as boron, chloride, fluoride, sulfate, manganese, and aluminum exceeding secondary MCLs and Health Advisories. Pennsylvania Department of Environmental Protection (PADEP) and First Energy entered into a settlement agreement in 1994 to address groundwater contamination. Since then, PADEP has issued two Notices of Violations (NOVs) for fugitive dust and required resampling of 10 wells with elevated arsenic. In addition, PADEP permitted an increase in the height of the dam for the impou ndment in 2006 to accommodate more fly ash and scrubber sludge from the Bruce Mansfield Plant. The resulting increase in ash water height has increased head (downward) pressure, pushing the groundwater contamination farther offsite and resulting
in levels of arsenic, antimony, hexavalent chromium, lead, boron, cadmium, thallium, selenium,
and other constituents in off

- site springs and seeps in excess of Pennsylvania’s water quality standards. At least 22 private wells have now been contaminated above MCLs, SMCLs, and health advisories, and many of the affected homes have been purchased by First Energy. To date,402

PADEP has not required a remediation plan or assessed penalties. [Footnote 333 2 ( renumbered per #10492 ): Id . at 161

– 73.]

- Since 1962, Midwest Genera tion has dumped bottom ash and boiler slag from its Joliet 9 and Joliet 29 Power Plants into an unlined ash landfill in the Lincoln Quarry in Joliet, Illinois. Despite the existence of 94 wells within a mile of the Landfill in a setting described by Illino is Environmental Protection Agency (IEPA) as “an area with very high geologic vulnerability and a high potential for potable well contamination,” in 1996 IEPA exempted the landfill from complying with Illinois Class 1 Groundwater Protection Standards as lo ng as it maintained a pumping operation to keep groundwater from leaving the landfill. The exemption applied relaxed standards for cadmium, boron, selenium, and molybdenum in groundwater onsite that allowed cadmium levels up to 52 times the MCL in this gro undwater. The landfill failed to maintain the inward gradient, however. Contaminated groundwater began flowing north, west and south out of the Main Quarry as noted in the summer of 2002 by IEPA staff and admitted by Midwest
Generation in October of 2005. In April 2006, Midwest Energy sampled wells to the south of the landfill for boron only and found them contaminated with boron up to 1.5 mg/L, which is far above natural levels but does not exceed the Illinois groundwater standard of 2.0 mg/L. The
results indicated contamination had spread as much as 1,000 feet to the south of the Landfill and led Midwest to buy out or drill deeper wells for 18 residences. Monitoring data had documented levels of arsenic up to 10 times the MCL, boron up to five times the st ate standard and more than 3 times EPA’s Child Health Advisory, molybdenum up to 70 times the LTHA, and dozens of additional exceedances of IL groundwater quality standards (AGQS) for copper, barium, sulfate TDS, pH, ammonia, chloride, nitrate, sodium and fluoride in monitoring wells on the perimeter of the landfill from 2007 to 2009. IEPA finally prepared a draft NOV in August 2009 for some 50 of the exceedances of AGQS, but never sent the NOV to Midwest Energy. The state has conducted very little, if any, off

- site sampling, leaving this task to the discretion of the utility. Thus, IEPA has taken no enforcement actions or other significant steps to address the substantive contamination that has been flowing offsite in violation of this CCW landfill’s operat ing permit for many years. [Footnote 334 3 ( renumbered per #10492 ): Id . at 41

– 47.]

- Twelve Wells in the hamlet of East Mount Carmel, Indiana that supply drinking water to a bait shop, a church and ten trailer homes have been contaminated with boron up to t wice 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 Gibso n Power Plant. Sodium levels in the wells have been as high as 347 mg/L in the semipublic well of the church, used by many residents. This is 17 times higher than EPA’s health

- based Drinking Water Advisory for ingestion of sodium by individuals on a salt

- r estricted 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 cool ing lake with selenium up to 0.013 mg/L, nearly three times the federal surface water quality standard or Criterion Continuous Concentration, forcing a ban on fishing in this once popular fishing lake. In turn, discharges from the cooling water lake to the Cane Ridge Wildlife Area, a unit of the Patoka River National Wildlife Refuge, contaminated the water, soil and biota with selenium levels that posed a high hazard to wildlife. This forced the US Fish and
Wildlife Service to drain and remediate the contam ination through discing of a wetland nesting area used by the federally endangered Least Tern. Fish whole body selenium levels in the
wetland were 9

- 30 ug/g. [Footnote 335 4 ( renumbered and corrected per #10492, with deletions403

in strikeout and additions in bold ): USFWS, 2008

. Briefing Statement: Duke Energy's Gibson
Selenium Contamination

- Ramifications for Cane Ridge and Interior Least Terns (May 28, 2008). ] The safe dietary level of selenium for wildlife is 3.0 ug/g. [Footnote 336
5 ( renumbered and correct ed per #10492, with deletions in strikeout and additions in bold ): See Appendix I. "Lemly, A.D. 1993. Guidelines for Evaluating Selenium Data from Aquatic Monitoring and Assessment Studies, Environmental Monitoring and Assessment (28): 83

- 100. ] Least Tern eggs gathered at the site in 1996 and 2004 contained 3.53

- 5.48 ug/g of selenium with levels rising over time and hatchling mortality was high. [Footnote 337 6 ( renumbered and corrected per #10492, with deletions in strikeout and additions in bold ): USFWS, 2008. Briefing Statement: Duke Energy's Gibson Lake Selenium Contamination

- Ramifications for Cane Ridge and Interior Least Terns (May 28, 2008). ] In 2010, Duke provided a public water line
to residents in East Mt. Carmel and assisted the USFWS in restoring the selenium damaged wetland in 2008. Yet Duke has refused to provide water to residents who live near East Mt. Carmel north of the ponds who are complaining about the taste and smell of their water. The Indiana Department of Environmental Man agement has declined to take any enforcement action, conduct any sampling or otherwise require any remedial steps to address the contamination of private wells near the site or the selenium contamination in the Cane Ridge Wildlife Area. There
have been at least two residents with kidney illnesses and complaints of other ailments from residents of the ten trailers in East Mt. Carmel who are also blanketed regularly with coal ash dust blowing from the near full ash ponds in the summer. [Footnote 338 7 ( renumbe red per
#10492 ): Out of Control, at 19

– 22; and 2010 discussions of EIP staff with East Mt. Carmel residents.]

- In Colstrip, Montana, a groundwater contaminant plume from two evaporation ponds (the closed Stage I and still active Stage II Ponds) of the Col strip Power Plant contaminated private wells in a subdivision. It also contaminated the well for a local Moose Lodge 1,000 feet away. This well had concentrations of boron at 20 mg/L, more than six times the EPA Child HA, sulfate at 6,000 mg/L, twelve time s the EPA health

- based DWA, and TDS at 9,500 mg/L, nineteen times the SMCL. Owners of the plant knew that they were contaminating peoples’ wells in the 1980s, but did not make this information publicly available until they were forced to replace the Moose Lodge Well in 1998. Residents, a number of whom who were made ill from drinking water from the Moose Lodge well, filed a lawsuit against the Power Plant in 2003. In 2008 the owners of the Plant (PPL Montana) settled with 57 Colstrip residents for $25 milli on in damages. Another contaminant plume from the Effluent Holding Pond (EHP) for Plant Units 3 and 4 has now traveled a mile to the south contaminating private property that has since been purchased by PPL Montana and also migrated far to the west. Ranche rs who own these lands filed a suit in 2007 over the damages from the contamination. In February 2010, 22 years after the contamination of drinking water wells by CCW had become had become a demoralizing public health issue in Colstrip, the Montana Departm ent of Environmental Quality (MDEQ) proposed an Administrative Order on Consent (AOC) with PPL Montana to address the problem. The AOC will remediate CCW contamination at the main plant site, the Stage I and II ponds, the Units 3 and 4 EHP and any leaks or spills in the attendant pipelines between these units. However, with compliance boundaries and timeframes for compliance with remediation objectives unclear, citizens fear the AOC could allow Colstrip’s operators to continue to discharge from all three si tes indefinitely instead of fixing the ponds and complying with the “closed loop” permit originally approved for the plant. In the meantime, the Montana Legislature enacted a law in 2007/2008 that prevents the MDEQ from enacting any regulations setting404

sta ndards for CCW from any new coal plants that might be built in Montana. [Footnote 339
8 ( renumbered per #10492 ): Id . at 31

– 36.]

Despite the substantial and well

- documented offsite damage to communities at these five sites, it
is notable that not one of the m is identified as a proven or potential damage case by EPA. [Footnote 340 39 ( renumbered per #10492 ): See 75 Fed. Reg. 35,128, 35,234

– 35,239 (June 21, 2010).] Based on past experience, state agencies are not able to protect public health and the
environmen t with respect to CCR disposal. Strong federal regulations are critical to keep CCR out of drinking water and surface waters, and ensure the safe disposal of CCR.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussio n of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 064 11

- 10 

### Organization 1 

### : Alabama Department of Environmental Management (ADEM) 

### Commenter 1 : Gerald Hardy Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
Another i ssue related to State program adequacy is in the area of compliance and enforcement. Under the Subtitle D proposal, EPA would not have direct enforcement authority over the requirements. Rather, like the current Subtitle D programs for municipal solid wast e (MSW), enforcement under separate State program authority, or under federal RCRA citizen suits would be the means of enforcing these requirements. Since 2006, ADEM has issued nearly two dozen notices of violation and two administrative Orders with penalt ies to MSW landfills in Alabama. With only just over 30 permitted MSW landfills in Alabama, these actions reflect an enforcement program that is sufficient to both penalize facilities in noncompliance and to provide a deterrent to future noncompliance. Rec ent program enhancements such as increased405

numbers of inspections and the requirement for certified landfill operators at public disposal facilities have also increased the industry's overall compliance rate in Alabama.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06723

- 14 

### Organization 1 

### : West Virginia Department of Environmental Protection (WVDEP) 

### Commenter 1 : Gary Casto on behalf of Randy C. Huffman Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.2.5 

### Comment Excerpt Text: The regulations also require post closure monitoring and maintenance for a period of up to thirty years. CCR regulati ons are administered by a joint Solid Waste/NPDES permit and solid waste facilities are inspected for permit compliance and structural integrity on a routine basis.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06815

- 10 

### Organization 1 

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

### Commenter 1 : Liane J. Shekter Smith Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context As signed/Due: Other Sections: 7.1.2.5 

### Comment Excerpt Text:406

Michigan also requires financial assurance for industrial and low

- hazard industrial waste landfills and surface impoundments. The amount of financial assurance required is $20,000 per
acre up to a maximum of $1,000,000 plus an additional amount deposited into a perpetual care fund (PCF). A PCF is a trust or escrow account that is funded with deposits based upon the quantity disposed. Disbursements from the PCF, other than for administrative fees an d specific fees designated by the DNRE, are prohibited unless authorized by the DNRE. The PCF must be maintained throughout the 30

- year post

- closure care period. The PCF also has a specified maximum, currently $1,878,500 (or $939,250 for certain type III l andfills), which is adjusted annually for inflation.

Response : The Agency appreciates and acknowledges this comment. In the proposal, the Agency stated that the RCRA subtitle D alternative did not include proposed financial responsibility requirements and that any such requirements would be proposed separately. The Agency solicited comment on whether financial responsibility requirements under CERCLA section 108(b) should be a key Agency focus under a RCRA subtitle D approach. While the Agency received numerous comments urging the Agency to establish financial responsibility as part of the subtitle D option, the CERCLA 108(b) option did not receive significant support. As discussed in the proposal and reiterated here, EPA will not be requiring financial assurance requirements as part of this rule. The Agency however will continue to investigate the use of other statutory authorities (e.g., CERCLA) to establish financial responsibility requirements for owners or operators of CCR landfills, CCR surface imp oundments and any lateral expansion.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06819

- 6 

### Organization 1 

### : Missouri Department of Natural Resources 

### Commenter 1 : Robert Stout on behalf of Dru Buntin Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: In addition to these requirements, the department inspects all permitted solid waste disposal areas, including UWLFs, at least once per year to ensure compliance with ap plicable regulations.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards, including inspections, the Agency is promulgating in this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06831

- 1 

### Organization 1 

### : MACTEC Engineering and Consulting, Inc. 

### Commenter 1 : Guy Winebrenner Commenter Type: Other Company Classification: Substantive407

Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.2 4.1.1 11.2.5 7.1.2.5 

### Comment Excerpt Text: Based upon our experience in seven states where coal is used to fuel a significant portion of the electric generation output, it is our experience that the state regulatory pr ograms controlling dam safety, landfill design, groundwater protection and both point and non

--- point discharge provide an adequate framework to provide for public safety, property protection and environmental preservation. Moreover, the state regulatory p rograms are designed to take into consideration the specific geographic, geologic and water resources features that can affect the proper operation of CCR storage facilities. Where these existing safety and environmental protection regulations
have been ef

fectively utilized and properly enforced, facilities have been operated without public harm or environmental impairment. Moreover, laboratory and field testing of properly designed CCR storage facilities has demonstrated that the residual material does not present a threat to either surface or groundwater. The issue, therefore, is not federal versus state regulation, but the uniform and consistent application and enforcement of existing regulations. Consequently, we see no compelling reason to move the regu lation of CCR storage installations from state control under current standards to federal control under the Hazardous Waste Management requirements
of Subtitle C.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06864

- 1 

### Organization 1 

### : Hull & Associates, Inc. 

### Commenter 1 : William G. Petruzzi Commenter Type: Other Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.2 3.1.2 11.2.5 7.1.2.5 

### Comment Excerpt Text: Based on our years experience assisting our clients with the management of solid waste and co

products (including CCR), we believe that existing State regulations have worked sufficiently to protect human health, safety and the environment. We agree that r egulations do need to be periodically upgraded or revised to reflect changes in technology, advances in scientific understanding and the general desire of the community. However, we believe that the US EPA’s proposed regulations are being developed without an appreciation for the continued success of CCR containment systems in many of the States’ current programs to regulate and manage CCR.408

We are aware of the rare instances where CCR containment systems have failed, or have not been operated properly, and believe that any impacts or potential threats that have resulted were caused by geotechnical failures or lack of proper operation and maintenance

– neither of which would require new Federal rules to address. We believe that the US EPA and industry have

wo rked well together to inspect facilities and to make any necessary improvements to existing systems that did not meet design or performance standards, and that building upon this approach may serve as a basis for working together as the evaluation of alter native approaches for management of CCR continues. We do feel that continuing with the application of the existing programs, following through on implementing improvements to systems identified during earlier inspections, and industry continuing to manage and self

- inspect their systems to assure compliance will allow for an extension on the proposed implementation timeline for any new rules and also allow for the vetting of alternative approaches.

Response: The Agency acknowledges and appreciates the com ment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamb le for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into sta te solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that a re otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts
involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Commen t Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06872

- 19 

### Organization 1 

### : State of Pennsylvania Department of Environmental Protection 

### Commenter 1 : Todd M. Wallace Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.2.5 

### Comment Excerpt Text: All CCR landfills and surface impoundments are inspected on a regular basis by all PA DEP programs that are involved in the permitting and inspection process.

Response: The Agency acknowledges and appreciates the comment.409



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06880

- 4 

### Organization 1 

### : Eastman Chemical Company (Eastman) 

### Commenter 1 : Keith Harris Commenter Type: Other Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.1.1 7.1.1.2 

### Comment Excerpt Text: The State of Tennessee has, since the early 1980s, had in place regulation of industrial landfills that manage CCR in addition to other industrial wastes. Those regulati ons were substantially revised in 1990 and again in 1993. Tennessee Rule Chapter 1200

- 1

- 7, Tennessee Rules for Solid Waste Processing and Disposal, applies the Federal Criteria for Municipal Solid Waste Landfills (40 CFR Part 258) to MSW landfills, but als o apply those standards to industrial landfills, including those that manage CCR. As a result, CCR landfills in Tennessee are subject to standards that require site characterization including assessment of areas of concern, buffer zones, composite liners, leachate collection systems, final cover systems, run

- on and run

- off control, storm water management, fugitive dust controls, groundwater monitoring, gas monitoring, closure and post

- closure care, and financial assurance.

Response: The Agency acknowledg es and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referre d to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorpor ate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant

comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy o f the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06880

- 5 

### Organization 1 

### : Eastman Chemical Company (Eastman) 

### Commenter 1 : Keith Harris Commenter Type: Other Company Classification: Substantive Comment Category: Current Task: Examine Context Assigne d/Due: Other Sections: 7.1.1.2410



### Comment Excerpt Text: Eastman has operated an on

- site industrial waste landfill managing CCR and other wastes under a permit issued in 1984 by the Tennessee Department of Health and Environment (the predecessor of the current Tennessee Department of Environment and Conservation (TDEC)). This permit has been and is periodically modified by Eastman and TDEC as necessary to assure compliance with the regulations and their revisions. Groundwater monitoring has been conducted continuously since 1984, at least semi

- annually and for a period, quarterly. TDEC's staff in the Division of Solid Waste Management conducts inspections of the facility at least quarterly to assure the facility complies with these standards.

Response: The Agency acknowledges and appreciates the comment.



### Co mment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 20 

### Organization 1 

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

### Commenter 1 : David B. Haldeman Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.2.5 

### Comment Excerpt Text: Inspection and Compliance

Compliance oversight is conducted by unannounced annual inspections, comprehensive inspections at the time of permit renewal, and inspections initiated through citizen complaints. Unannounced facility inspections are conducted at least once per year to evaluate the operation and management of the disposal facility. Inspection checklists are used to record satisfactory or unsatisfactory conditions at the site, see Attach ment B. If the facility is out of compliance with the approved permit application, the NDEQ will initiate procedures for the facility to come back into compliance.

The findings of the annual inspections are documented and a report is prepared and sent to the facility. If a violation is found a Letter of Warning (LOW) or Notice of Violation (NOV) is also sent to the facility; including a time period by which the facility must respond with the corrective
action to be taken.

Individuals may file a complaint if there is a concern about how a CCR landfill is constructed or operated. Typically a complainant calls the NDEQ to state their concerns. A complainant can also file a complaint on the NDEQ website.

High priority violations can be forwarded to the NDEQ L egal Services Division for appropriate action. Such action may include civil penalties of up to $10,000 per violation per day. The NDEQ also has the ability to revoke permits and deny the renewal of permits.

When a facility is applying to renew their oper ating permit a comprehensive inspection is completed by the permit and compliance unit staff, including a geologist and financial assurance411

coordinator. Permits cannot be renewed unless the permittee is found to be in compliance with the expiring permit.

R esponse: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 22 

### Organization 1 

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

### Commenter 1 : David B. Haldeman Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.2.5 

### Comment Excerpt Text: Three of the existing CCR landfills have had compliance issues noted from past inspections and
have received letters of warning from the NDEQ to address the compliance issues. The compliance issues consisted of allowing part of a liner to be exposed, timely placement of final cover, removal of trees and brush from a drainage area and removal of a small amount of waste

no t considered to be CCR waste. All compliance issues were addressed by the facilities and no enforcement beyond the letter of warning was initiated or warranted.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 46 

### Organization 1 

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

### Commenter 1 : David B. Haldeman Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Othe r Sections: 7.1.2.5 

### Comment Excerpt Text: [See original comment for Attachment B

-- Inspection Checklist; Nebraska Department of Environmental Quality Routine Checklist for Fossil Fuel Waste Disposal Areas]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08247

- 3 

### Organization 1 

### : Tucson Electric Power Company 

### Commenter 1 : Erik Bakken Commenter Type: Electric Utility Company Classification: Substantive Comment Catego ry: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.2.5412



### Comment Excerpt Text: A QUALIFIED STATE REGULATORY BODY SHOULD BE RESPONSIBILITY FOR ENSURING COMPLIANCE WITH THE APPLICABLE REQUIREMENTS OF A SUBTITLE D PROGRAM In those states such as Arizona that have qualifying controls for CCRs, EPA needs to allow the states to administer the controls to avoid duplication of regulatory programs, with appropriate EPA oversight. This approach would allow for the requisite degree of state involvement in administration of the CCRs rules that EPA concluded was appropriate in its 2000 final Regulatory Determination.

TEP has confidence that the current APP is sufficient to protect human health and the environment. Any additional Fed eral program would likely result in duplicative regulation which TEP does not support. A federal program in addition to the APP program would offer no additional protection to human health and the environment. We strongly encourage EPA to examine ADEQ?s AP P program.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 31 

### Organization 1 

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

### Commenter 1 : Benjamin H. Grumbles Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.2.5 

### Comment Excerpt Text: Pg. 35195. Arizona’s Aquifer Protection Permit Program has administrative order (A.R.S. § 49

- 261) and administrative order violation penalty authorities [A.R.S. § 49

- 262(C)]; civil injunction [A.R.S. §§ 49

- 261, 49

- 262(A) and 49

- 262 (B)] and civil penalty authorities [A.R.S. § 49

- 262(C)]; criminal sanctions authority (A.R.S. § 49

- 263); and suspension or revocation author ity [A.R.S. § 49

- 245(B)].

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 39 

### Organization 1 

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

### Commenter 1 : Benjamin H. Grumbles Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.4.1 4.4.7.1 7.1.2.5 

### Comment Excerpt Text: Pg. 35251, Section 257.98: The proposed rule will impose corrective action requiremen ts that413

may not be compatible with elements of Arizona’s corrective action requirements. A.A.C. R18

- 9

- A204 requires that all individual Aquifer Protection Permits have a contingency plan for
corrective action. A.A.C. R18

- 9

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

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

- specific cleanup provisions rather than prescriptive cleanups, potential cleanup issues are already addressed by state law. ADEQ also has authority under A.R.S. § 49

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

- ordered cleanups have occurred.

Response: The Agency acknowl edges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09427

- 1 

### Organization 1 

### : San Miguel Electric Cooperative, Inc. (San Miguel) 

### Commenter 1 : Joseph G. Eutizi Commenter Type: Electric Utility Company Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 12.1.1.7 7.1.1.1 7.1.1.2 7.1.1.4 

### Comment Excerpt Text: Since the early 1980’s, San Miguel has actively sought off

- site markets for the CCRs generated by the plant, however most of the CCR is ultimately returned to the adjacent mine for placement. Those placement activities are registered with the Texas Commission on Environmental Quality (TCEQ) and permitted with the Railroad Commission of Texas (RCT)

– the state surface mining regulat ory authority. As part of the TCEQ registration process, San Miguel was required to demonstrate that the native soil met, at a minimum, the standards for a compacted clay liner and to install groundwater monitoring wells. The areas that receive CCR are dee d recorded in the appropriate counties and affected landowners were notified in advance of placement. The placement activities are spelled out in detail in San Miguel’s RCT permit, and affected landowners are given an opportunity to participate in the RCT permitting process. Finally, the placement activities and areas are inspected by the RCT at least monthly.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09431

- 12 

### Organization 1 

### : Otter Tail Power Company 

### Commenter 1 : Farren Richard414

Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.1.2 

### Comment Excerpt Text: A permit engineer within the department oversees the design, construction, operation, and
closure of landfill. A compliance officer is responsible for conducting periodic inspections of the operations at the site. A hydrologist reviews groundwater monitoring data and issues monitoring well requi rements. A financial assurance officer oversees our annual financial assurance guarantees. A separate engineer oversees beneficial use of CCRs within the state State requirements include: receiving a permit for the landfill site, adhering to liner construc tion requirements (including a synthetic liner element, leachate collection and pumping system, and liner leak detection system), gaining approval for specific wastes that are deposited in the landfill, implementing

storm water run

- off and run

- on controls, installation and sampling of a groundwater monitoring network around the landfill site, submitting groundwater sampling data, pumping and disposal of leachate generated on

- site, submitting annual reports including data analysis of groundwater monitoring a nd financial assurance reports, and following specific closure requirements.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10019

- 4 

### Organization 1 

### : Spalding & Hilmes, PC 

### Commenter 1 : Rosemary G. Spal ding and Kathryn A. Watson, on behalf of Springer family et
al Commenter Type: Law Firm Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: 1. Indiana's Solid Waste Program

Indiana has a permitting program applicable to CCR landfills, 328 Indiana Administrative Code
10

- 1

- 1 et seq. Merom has a landfill permit, FP 77

- 03, under that regulatory scheme. It has applied for a permit for a new landfill, FP 77

- 04. That permit applicat ion is pending before
IDEM.

The FP 77

- 03 permit contains a variance from the daily cover requirement in the Indiana rules.
The FP 77

- 04 requests the same variance for the new landfill. The variance is revocable by IDEM ifthe facility is found to be in vi olation of fugitive dust regulations or if visible waste deposits carried by wind or surface water beyond the site property boundary are documented. We submitted a letter on behalf of our clients to IDEM on July 6, 20 10 documenting fugitive dust blowing o ff the Merom facility onto their properties and requesting revocation of the variance. To date, we have received no response from IDEM. We commented extensively on the permit415

application, FP 77

- 04, opposing Merom's request for a daily cover variance. Merom has so far failed to demonstrate the "undue hardship" standard required for a variance by Indiana Code §13

- 14

- 8, and IDEM has failed to request Merom make such a demonstration.

In addition, our clients have made multiple complaints to IDEM concerning th e fugitive dust, and so far IDEM has failed to take any enforcement action.

2. IDEM's NPDES Permitting Program

As discussed above, Merom currently has a NPDES renewal permit pending at IDEM as well. IDEM's Draft NPDES permit includes for the first time for only some of the outfalls monitoring and reporting requirements for some of the parameters associated with CCR. Nor does the Draft Permit have effluent limits or treatment requirements for the pollutants that discharge from the
storm water outfalls th at include runoff from the CCR landfill and CCR handling facilities.

Turtle Creek Reservoir is a "water ofthe state," and the fact that it has been discharging without ever have determined whether there was a reasonable potential to exceed water quality standards for the constituents of concerns associated with CCR is contrary to both federal and Indiana law. For example, pursuant to Indiana's regulations:

The goal ofthe state is to restore and maintain the chemical, physical, and biological integrity

o fthe waters ofthe state. In furtherance of this primary goal:

(1) it is the public policy of the state that the discharge of toxic substances in toxic amounts be prohibited; and

(2) it is the public policy ofthe state that the discharge ofpersistent an d bioconcentrating toxic
substances be reduced or eliminated.

327 lAC 2

- 1

- 1.5 (Water quality goals). In addition, for all waters of the state, "existing beneficial uses shall be maintained and protected. No degradation ofwater quality shall be permitted which would interfere with or become injurious to existing and potential uses." 327 lAC 2

- 1

- 2 (Maintenance of surface water quality standards). With respect to designated uses, Indiana regulations provide that, except for limited exceptions that do not app ly to Turtle Creek Reservoir, "surface waters ofthe state are designated for full body contact recreation," and all waters will be capable of supporting "a well

- balanced, warm water aquatic community." See 327
lAC 2

- 1

- 3 (Surface water use designations; mul tiple uses). Finally, Indiana regulations provide that "Where multiple uses have been designated for a body of water, the most protective of all simultaneously applicable standards will apply." Id

Clearly, neither the original NPDES permit nor subsequent renewals are consistent with Indiana's articulated policies and goals or compliant with Indiana law and regulations. Although the proposed EPA rule will not specifically apply to Indiana's NPDES program, this is an example ofthe state's failure to adequat ely regulate management ofCCR nonetheless.416

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the dis posal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is
also referred to U nit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the

te chnical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of t hose programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10697_DEN

- 007

- 10 

### Organization 1 

### : Wyoming Department of Environmental Quality 

### Commenter 1 : John Corra Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.2.5 

### Comment Excerpt Text: EPA Issue: (9) Requirements for Corrective action, post

- closure monitoring and maintenance WDEQ SHW D Response: Corrective action and post

- closure standards are generally equivalent to Subtitle D requirements. WDEQ WQD Response: Under the rules that require a permit to construct, the modification of the facility to close requires a permit. The permits to close include post closure monitoring and maintenance as deemed necessary by WQD.

EPA Issue: (10) Active enforcement and public involvement WDEQ SHWD Response: CCR landfills are routinely inspected to assess compliance and facilities are subject to enfor cement actions for non

- compliance. Public notice and participation are required before permits are issued, when major changes are proposed and prior to selection of a remedy for corrective action. WDEQ WQD Response: W.S. § 35

- 11

- 101 to 115 and DEQ rules of practice and procedure provide for public participation and objection to the permitting process. Permitting decisions of the WQD can be appealed to the Environmental Quality Council.

EPA Issue: (11) Insurance against catastrophic failures WDEQ SHWD Respo nse: Like other landfills permitted under Subtitle D, insurance is not417

required against catastrophic failures. WDEQ WQD Response: Insurance against catastrophic failure is not required.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10697_DEN

- 007

- 5 

### Organization 1 

### : Wyoming Department of Environmental Quality 

### Commenter 1 : John Corra Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due : Other Sections: 7.1.1 7.1.2 7.1.2.5 

### Comment Excerpt Text: EPA Issue: (4) The effectiveness of existing management units as opposed to new management
units WDEQ SHWD Response: Wyoming implemented Subtitle D regulations for CCR landfills that
received wa ste after November 28, 1990. Standards for these “new” units are more stringent than prior regulations. New units may not be constructed where the administrator finds they will have a detrimental effect on surface or groundwater. Liners are required if the administrator determines that conditions cannot be met to prevent potential contamination of groundwater. Existing and new units must be monitored and an assessment of corrective measures must be conducted if groundwater protection standards are exceeded. WDEQ WQD Response: Some existing management units have impacted groundwater very locally, but no wells, other than monitoring wells have been impacted. Most new management units are being constructed with at least 60 mil thick HDPE membrane liners, which exceed minimum design standards.

EPA Issue: (5) Requirements for routine analysis of CCRs. WDEQ SHWD Response: CCR analysis may be required by the administrator, especially if there is a change at the facility that could alter CCR characteristics. Analysi s is routinely required for beneficial use applications. WDEQ WQD Response: Initial analysis of CCRs is required for design of waste treatment ponds.

EPA Issue: (6) Financial responsibility requirements for the management of CCRs WDEQ SHWD Response: Under an exemption provided by the solid waste regulations, permitted electric utilities are not required to have financial assurance for facility closure or post

closure care, but financial assurance may be required in the event of any discharge of pollution t o the air, land or waters of the state. WDEQ WQD Response: W.S. § 35

- 11

- 301 prohibits pollution of the waters of the state unless allowed by permit and W.S. § 35

- 11

- 901 allows penalties of $10,000 a day for each day a
violation continues.

Response: The Agency acknowledges and appreciates the comment.418



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10697_DEN

- 007

- 8 

### Organization 1 

### : Wyoming Department of Environmental Quality 

### Commenter 1 : John Corra Commenter Type: State Government Classification: Substantive
Co mment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.1 7.1.2 

### Comment Excerpt Text: EPA Issue: (7) The extent of permit requirements, including under what authorities these disposal units are permitted, the types of controls that are included in permits, and the extent of oversight provided by the states. WDEQ SHWD Response: Regulatory requirements for CCR landfills are contained in the Wyoming statues and rules described above. Permits are required for all CCR disposal facili ties. Permits must be renewed every 8 years. Standards for CCR landfills are generally equivalent to Wyoming’s approved Subtitle D requirements for municipal solid waste landfills in regards to facility location, design, construction, operation, monitoring , reporting, corrective action and post

- closure care. WDEQ WQD Response: A permit to construct is required for non

- biological treatment ponds. These permits include approval of a professionally engineered and certified design and a certificate of completio n that the facility was built as designed or with modifications approved by WQD.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0191

- 3 

### Organization 1 

### : Michigan Department of Environmental Quality (M DEQ) 

### Commenter 1 : Liane Shekter Smith Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1 7.1.2.5 

### Comment Excerpt Text: U.S. EPA is noticing the comments on the 2010 proposed rule, submitted by Earthjustice, Environmental Integrity project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, and Physicians f or Social Responsibility, addressing gaps in state government regulatory programs applicable to the management of CCRs.

The MDEQ disagrees with the report's assessment of Michigan's regulatory program as it applies to the management of CCRs. The MDEQ tak es issue with the contention in the report that individual states take no action with regard to CCR disposal sites, when, in fact, the State of Michigan has required the closure of numerous unlined CCR disposal sites, and has required
corrective action to address groundwater and/or surface water impacts. Michigan identified eight419

proven damage cases in the comments submitted to the docket on November 20, 2010. Michigan also objects to the characterization of the regulatory program in the State, as described in the
above referenced document.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is
also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively t o that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requi rements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those

programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0228

- 11 

### Organization 1 

### : Virginia Department of Environmental Quality (DEQ) 

### Commenter 1 : Jeffery Steers Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.1.1 

### Comment Excerpt Text: o Liner System. Virginia’s industrial landfills are built with a bottom liner meeting the provisions of the SWMR. A liner has been required at these landfills since 1988 and any suggestion otherwise is incorrect. The liner provisions are provided in 9VAC20

- 81

- 130.J.2. A single liner is the requirement; however, groundwater monitoring is also required to insure the
line r’s performance. If groundwater monitoring impacts above the protection standards are determined to have occurred, then the corrective action program under 9VAC20

- 81

- 260 is implemented.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0228

- 13 

### Organization 1 

### : Virginia Department of Environmental Quality (DEQ) 

### Commenter 1 : Jeffery Steers Commenter Type: State Government Classification: Substantive420

Comment Category: Current Task: Examine Context Assigned/ Due: Other Sections: 7.1.1.2 

### Comment Excerpt Text:

o Post

- Closure Monitoring. Virginia requires ten years of post

- closure monitoring for industrial landfills; however, if post

- closure monitoring is not terminated after ten years if on

- going issues,
such as groundwater corrective action, have not been resolved.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0236

- 13 

### Organization 1 

### : Iowa Department of Natural Resources (IDNR) 

### Commenter 1 : Brian Tormey Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 5.5.4 

### Comment Excerpt Text: · Table 29 (page 55) [from Document No. EPA

- HQ

- RCRA

- 2009

- 0640

- 6315]

– This Table identifies those sites that exceeded “open dumping” criteria in 40 CFR 257, of which three Iowa sites have been indicated (George Neal Station North Landfill, George Neal Station South Landfill, and Lansing Station Landfill). However, this Table also indic ates a fourth Iowa facility titled, “Marion Plant” located in Williamson County. It should be noted that there is no Williamson County in Iowa nor a facility referred to as the “Marion Plant.”

Response: The Agency acknowledges and appreciates the comment

.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0249

- 5 

### Organization 1 

### : Arkansas Department of Environmental Quality (ADEQ) 

### Commenter 1 : Teresa Marks Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: As a requirement of state statute, ADEQ staff perform on

- site inspections of all landfills at least quarterly. The inspections are conducted to determine a permitted facility's compliance with applicable laws, regulati ons, and permits. Additional inspections are also performed should a complaint be filed on a facility. Additionally, as a requirement of Regulation 22, a professional engineer, currently registered in Arkansas, is required to perform an annual engineering inspection for operational compliance and to submit a report (AEIR) by June 30 of each year to ADEQ, which includes among other things site surveys, site capacity and site

- life analysis,421

updated calculations for closure and post closure care cost estimates , and updated financial
assurance documentation.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0249

- 9 

### Organization 1 

### : Arkansas Department of Environmental Quality (ADEQ) 

### Commenter 1 : Teresa Marks Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.1 

### Comment Excerpt Text: ADEQ Solid Waste Management Division permitting staff include four engineers, an engin eer supervisor which is required to maintain Professional Engineer (P.E) registration, two geologists, a geology supervisor, and an assistant to the group. The permitting section is currently fully staffed. The Solid Waste Management Division also employs eight (8) field inspectors, an inspector supervisor, as well as enforcement and support staff. ADEQ budget is currently adequate to maintain this staff and there are no known changes which will affect staffing.

Response: The Agency acknowledges and appr eciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0263

- 5 

### Organization 1 

### : South Carolina Department of Health and Environmental Control 

### Commenter 1 : Daphne Neel Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Table 34 of the [EJ] Comments lists the SCE&G Urquhart Station for exceedance of the Arsenic standard. For clarification, one monitoring well detected Arsenic in the groundwater above the MCL, ho wever, the results have fluctuated and Arsenic has exceeded the MCL in one sampling event since 2008. The Department entered into a Consent Agreement with SCE&G for the closure of this landfill and in June 2011 the Department reviewed and approved the clos ure plan.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0265

- 16 

### Organization 1 

### : Department of Environmental Quality, State of Wyoming422



### Commenter 1 : John Corra Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Secti ons: 8.9 

### Comment Excerpt Text: Damage cases in Wyoming

Wyoming is not listed as a state with a CCR facility where on

- site groundwater data exceed maximum contaminant levels (MCLs) in Earthjustice's November 19, 2010, comments to EPA. Earthjustice cites EPA's July 9, 2007, report titled Coal Combustion Waste Damage Case Assessments which listed the Dave Johnson Power Plant in Wyoming as a potential damage case. The disposal units at this facility are permitted by the Wyoming Department of Environmental Qu ality and groundwater monitoring is required. We are actively investigating evidence of potential groundwater contamination at this facility, but our investigation to date is incomplete and inconclusive. Should contamination be confirmed, appropriate corre ctive action will be required.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 6 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Ed Thamke Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1 7.1.1.1 7.1.1.2 7.1.2.1 7.1.2.2 7.1.2.4 7.1.2.5 

### Comment Excerpt Text: ASTSWMO Survey Revisited

Earthjustice cites select data from a survey that ASTSWMO performed and submitted to EPA prior to the June 21, 2010 proposal. Although it is in the Docket for the proposed rule, the survey data was not intended to be taken as official comments to the propo sal. As Earthjustice notes, “it is not clear from the ASTSWMO survey how many states responded, so these percentages may” [Footnote 35: Earthjustice Comments, page 19] provide an accurate picture of State regulatory requirements.

ASTSWMO has since reexam ined the data and the results are presented below. It should be noted that ASTSWMO and the States do not limit data presentation to those aspects of the programs that “look good.” While State programs are far better than portrayed in the Earthjustice
Comme nts, most States would agree that improvements can be made.

Based on information ASTSWMO received in response to a survey of States, following are423

answers to questions relevant to the adequacy of State programs:

How many States currently generate coal combustion residuals?

Forty

- five States generate coal combustion residuals (CCR). Not all States in which CCR is generated have disposal of CCR. CCR is disposed in only 42 of those States.

ASTSWMO does not have the information for 3 of the 42 States in which CCR is disposed. Additionally, ASTSWMO may not have complete information for all 39 of the remaining States. For each question presented, the number of States that ASTSWMO has information for is provided with the information that is available for th ose States.

How many States require permits for disposal?

Thirty

- six out of 42 States require permits for disposal of CCR in landfills. Twenty

- nine out of 32 States require permits for the management of CCR in surface impoundments. In some States,
the permits may not be specifically for disposal of CCR in surface impoundments. In those cases, the permit may be for effluent discharge.

In the States that require permits for disposal of coal combustion residuals, what are the liner requirements?

ASTSWM O has information about landfill liner requirements for 38 States. In 27 of the 38 States, a bottom liner is required for landfills. Eleven of the 38 States do not require a bottom liner. Seven of those 11 States make a determination about requiring a bott om liner on a case

- by

case basis. Liner requirements in 32 States are as follows: dual/multiple liner in 9 States; composite liner in 14 States; clay liner in 7; and 2 States require another type of liner. Variances are allowed in 23 States and exemptions in 7 States. Liner requirements apply to both existing and new lateral expansions of landfills in 13 States and only new expansions in 23 States.

ASTSWMO has information about surface impoundment liner requirements for 26 States. In 17 of the 26 States, a bottom liner is required for surface impoundments. Eleven of the 26 States do not require a bottom liner. Five of those States make a determination about requiring a bottom
liner on a case

- by

- case basis. Liner requirements in 19 States are as follows: du al/multiple liner in 9 States; composite liner in 5 States; clay liner in 5 States. Variances are allowed in 7 States and exemptions in 3 States. Liner requirements apply to both existing and new lateral expansions of surface impoundments in 12 States and only new expansions in 9 States.

In each of the States that require permits for disposal of coal combustion residuals, what are the groundwater monitoring requirements?

ASTSWMO has information about landfill groundwater monitoring requirements for 39 S tates. In 34 of the 39 States, groundwater monitoring is required for landfills. Five of the 39 States do not require groundwater monitoring. Groundwater monitoring requirements apply to both existing and new lateral expansions of landfills in 32 States an d only new expansions in 4 States.424

ASTSWMO has information about surface impoundment groundwater monitoring requirements for 27 States. In 18 of the 27 States, groundwater monitoring is required for surface impoundments. Nine of the 27 States do not requ ire groundwater monitoring. Six of those 9 States make a determination about requiring groundwater monitoring on a case

- by

- case basis. Groundwater monitoring requirements apply to both existing and new lateral expansions of surface impoundments in 20 State s and only new expansions in 3 States.

In each of the States that require permits for disposal of coal combustion residuals, what are the requirements or regulations regarding structural stability?

ASTSWMO has information about landfill structural stab ility monitoring requirements for 36 States. In 30 of the 36 States, structural stability monitoring is required for landfills. Six of the 36 States do not require structural stability monitoring. Structural stability monitoring requirements apply to both existing and new lateral expansions of landfills in 26 States and only new expansions in 7 States.

ASTSWMO has information about surface impoundment structural stability monitoring requirements for 25 States. In 16 of the 25 States, structural stability monitoring is required for surface impoundments. Seven of the 25 States do not require structural stability monitoring. Two of the 7 States make a determination about requiring structural stability monitoring on a case

- by

case basis. Structural stability m onitoring requirements apply to both existing and new lateral expansions of surface impoundments in 13 States and only new expansions in 3 States.

How is CCR disposal regulated in the States?

In many States, the authority to regulate surface impoundmen ts is vested in other State agencies pursuant to statutes other than solid waste statutes. While it may be other State agencies that have enforcement authority for surface impoundments, 43 out of 44 States indicated that they coordinate with the enforcing entities to require that steps are taken to protect human health and
the environment.

Despite the concerns expressed in the proposed rule, the State enforcing entities in 42 out of 42 States have the authority to require remediation. The majority of Stat e agencies noted State authority for surface impoundments include repair and maintenance during operation (43 out of 44 States) and closure (41 out of 43 States), as well as:

- impoundment design and engineering

- leachate collection

- gas collection

- groundwater and leachate monitoring

- financial assurance

- post

- closure care and maintenance

- removal

- replacement of water supply425

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical sta ndards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many com ments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0273

- 1 

### Organization 1 

### : Department of Natural Resources, State of Missouri 

### Commenter 1 : Alan Reinkemeyer Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.1 7.1.1.1 7.1.1.2 

### Comment Excer pt Text: Missouri has comprehensive regulations in place for the design and permitting of utility waste landfills (UWLFs) used to manage CCRs as a solid waste. Missouri promulgated regulations in 1997 specifically for UWLFs. Utility waste landfills permitt ed pursuant to these regulations are subject to numerous requirements designed to protect public health and the environment, including: 1) a geologic and hydrologic evaluation to determine if the site is suitable for construction of a landfill; 2) a liner with quality assurance/quality control procedures to ensure proper construction; and 3) a leachate collection system and a groundwater monitoring system. The Missouri Department of Natural Resources inspects all permitted solid waste disposal areas,
includ ing UWLFs, at least one time per year to ensure compliance with applicable regulations.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furt hermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.426

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has mad e no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



# CommentWorks ® 

# Issue Report

Initiative: Coal Combustion Residuals Proposed Rule 

### Client Name: Agency 

### Sort Order: Group Number Selected Options 

### : Include Commenter Include Organization
Include Additional Commenters Include Additional Commenter Organizations Include Commenter Type
Include Classification Include Category
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Previe w as HTML Single File



### Number of Issues: 1

Section 7.3.3

- Other Total Number of Submissions: 8 Total Number of Comments: 8



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06400

- 4 

### Organization 1 

### : Waste Management (WM) 

### Commenter 1 : Susan Briggum Commenter Type: Other Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:427

Other Sections: 2.1.1 2.1.2 2.1.6 7.4.2 

### Comment Excerpt Text: Long

- term implications of EPA’s interpretation of its 4010 authority: Most of EPA’s rationale for considering RCRA Subtitle C regulation of CCRs derives wholly from its self

- imposed limitation on RCRA to provide EPA regulatory authority only for hazardous wastes and municipal solid waste (“MSW”) [Footnote 2: As EPA acknowledges, “the tech nical unit design and groundwater monitoring requirements that will effectively protect human health and the environment under either option are quite similar.” CCR Proposal at 35159.]. This constrained reading of RCRA leaves EPA now and in the future with very little authority to meet RCRA’s mandate to protect human health and the environment. Under the rational of this rule, of the 7.6 billion tons of solid waste EPA estimates to be in existence [Footnote 3: See http://www.epa.gov/osw/nonhaz/index.htm. ] , the Agency would have regulatory authority over only 46 million tons of hazardous waste (6.9 million tons of non

- wastewater) (CCR Proposal at 35172) and 250 million tons of MSW . This constitutes less than four percent of the wastes for
which RCRA could provide protection.

This limitation is very shortsighted, and undervalues the important protections EPA and the states have afforded communities under RCRA authority. Our experience under the RCRA Subtitle C and D programs has been comparable; under both programs, we see state regulators bringing expertise and rigor to the task of permitting and overseeing hazardous waste and MSW landfills, assuring the facilities achieve RCRA’s goal of protecting human health and the environment [Footnote 4: For a recent assessment of the effectiveness of EPA’s regulatory program for MSW landfills, see http://www.wm.com/sustainability/pdfs/Geosyntec_report_

- _Environmental_Protection_at_the_Managed_Solid_Waste_Landfill_06201.pdf.]. When EPA has provided the kinds of clear a nd detailed guidelines evident in the RCRA Subtitle C regulations and Subtitle D criteria for MSW landfills, state regulatory authorities responded with programs implementing the high siting, technical and operational standards EPA intended. The

states ass ure those standards remain in force for the life of a facility’s permit, including the necessary post

- closure monitoring period. Through the approval process and as states revise their programs over the years, EPA Headquarters and, in particular, the Regio ns provide scrutiny, technical assistance and oversight.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D ru le for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is
also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06723

- 3 

### Organization 1 

### : West Virginia Department of Environmental P rotection (WVDEP) 

### Commenter 1 : Gary Casto on behalf of Randy C. Huffman Commenter Type: State Government Classification: Substantive Comment Category:428

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
The inclusion of coal ash as a Subtit le C waste would also act as "defacto" elimination of beneficial alkaline amendment use of certain coal ashes in mining. This would noticeably inhibit the restoration of several acidic streams in northern West Virginia.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06808

- 12 

### Organization 1 

### : New Mexico Environment Department (NMED) and Energy, Minerals and Natural Resources Department (EMNRD) 

### Comme nter 1 : Bill Brancard Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.7.6 

### Comment Excerpt Text: Regulation under RCRA Subtitle C is more desirable because it gives New Mexico a stronger role and more authority to assure that CCRs are properly managed and that any existing contamination is cleaned up. NMED has demonstrated that it has a strong Subtitl e C program, especially as it relates to operating permits and corrective action, as shown by its oversight of Los Alamos National Laboratory, Sandia National Laboratory, and Kirtland Air Force Base. In addition, Subtitle C financial assurance requirements will help ensure that New Mexico is not left paying for cleanup, closure, and post

- closure care of the CCR units should the owners decide to close the facilities prior to completing their regulatory requirements.

Response: The Agency acknowledges and a ppreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Uni t VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.429



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 26 

### Organization 1 

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

### Commenter 1 : David B. Haldeman Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.4.2 

### Comment Excerpt Text: It would be helpful if EPA would clarify in its final rule how state voluntary cleanup programs might be used to address corrective ac tion found necessary at CCR landfills under either a Subtitle C or Subtitle D approach.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09728

- 5 

### Organization 1 

### : Intermountain Power Service Corporation (IPSC) 

### Commenter 1 : Jon A. Finlinson Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.2 

### Comment Excerpt Text: 5. EPA has not proven that Subtitle C option is actually required for safe management of CCR disposal.

The EPA strongly implies that federal oversight under a Subtitle C management is the best option for CCR disposal. IPSC disagrees. Subtitle C will be overly burdensome, unnecessarily costly, and does not have the cost

- benefit ratio one would ex pect for improved CCR oversight.

CCR management under a Subtitle D program however can be sufficiently protective at a more moderate cost. The EPA's discussion in the preamble supports this. The EPA discounts the D option due to the "need" for federal ov ersight. Again, given such a low number of actual damage cases applicable to improper CCR disposal with limited oversight, it appears that just the slight nudge in the right direction where it is needed under Subtitle D would drop any potential future

case s to zero. We believe that a review of those States where Subtitle D

- like programs are in place prove this concept out. Also, of the proven damage cases cited, the majority were430

addressed through State administrative action.

The EPA never clearly articul ates in the preamble what the actual need is for federal enforcement and permitting beyond what States could provide if empowered under Subtitle D. The EPA does however make at least two assertions intimating that Subtitle C is unwarranted. First, it state s that it believes CCR already meets universal treatment standards (UTS). Since the idea of Subtitle C is to ensure treatment to UTS for disposal, it is arguable that to expand this oversight to UTS compliant waste is unnecessary. Second, the EPA states it s belief that without any regulations, over 90 percent of sites are already below the risk level the EPA proposes
facilities must meet under Subtitle C.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the

t echnical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10755_DEN

- 067

- 4 

### Organization 1 

### : National Ready Mixed Concrete Association (NRMCA) 

### Commenter 1 : Dan Huffman Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Du e:



### Comment Excerpt Text: 3.) Potentially stricter state laws impacting beneficial use: For example, a proposed rule in the state of Maryland, states that any product containing fly ash is to be disposed of in a special facility authorized to accept fly a sh. More states will establish similar laws that will further limit the beneficial use of fly ash.

Response: The commenter is referred to Unit IV of t he preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0280

- 5 

### O rganization 1 

### : Strategic Environmental Analysis, LC 

### Commenter 1 : Richard Fortuna Commenter Type: Other Company Classification: Substantive Comment Category:431

Current Task: Examine Context Assigned/Due: Other Sections: 3.1.1 7.4.2 

### Comment Excerpt Text:
The states are in no position to take this one on alone. They are simply too leveraged by an industry that provides vital services, and which has gotten used to having their own way on this issue for 3 decades. What the Agency is witnessing from the electric u tilities in the CCR Proposal is no different than what the chemical industry was doing at the time of Superfund’s consideration: current managements are simply trying to kick the can down the road by deferring liability/expenditures for current and past mi smanagement and corner

- cutting until the next management team takes over. No one wants to take the economic and/or liability hit for years or lax environmental management on their watch. The pressure to perpetuate this “deferred liability scheme” is most d irectly visited upon their local and state governments. Absent a strong RCRA regulatory mandate such as was contained in the Proposal, the states will be left to fend for themselves but few tools to prevent the next Kingston. For the sake of the residents near these 230+ facilities, and in order to give the states the tools they truly need to fend off an unrelenting faction, the Agency must regulate CCRS as a RCRA “hazardous waste” with all due speed.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the pre amble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0286

- 2 

### Organization 1 

### : FirstEnergy Corp. 

### Commenter 1 : Mike Horvath Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 7.4.2 

### Comment Excerpt Text: FirstEnergy comment: Of the 35 states whose submittals are available in this NODA, it is important to note that all but one state, New Mexico, reject the concept of regulating coa l combustion products as RCRA C hazardous waste. FirstEnergy agrees with the comments of those 34 states that RCRA C regulation is unnecessary. Regarding the position of New Mexico, we support any state determination that their state regulations should go beyond the RCRA D nationally favored baseline approach to coal combustion byproduct regulation . Ideally, every state has the right to determine the level of required regulation of their own state wastes and wastes they accept from other states to protect the environment and to consider the geographical, geological, and432

hydrologic aspects of that state.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s ra tionale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in thi s rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



# CommentWorks ® 

# Issue Report

Initiative: Coal Combustion Residuals Proposed Rule 

### Client Name: Agency 

### Sort Order: Group Number Selected Options 

### : Include Commenter Include Organization
Include Additional Commenters Include Additional Commenter Organizations Include Commenter Type
Include Classific ation Include Category
Include Task Include Flags
Include Comments
Preview as HTML Single File



### Number of Issues: 1

Section 7.3.3

- Other Total Number of Submissions: 8 Total Number of Comments: 8



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06400

- 4 

### Organization 1 

### : Waste Management (WM) 

### Commenter 1 : Susan Briggum Commenter Type: Other Company Classification: Substantive Comment Category:433

Current Task: Examine Context Assigned/Due: Other Sections: 2.1.1 2.1.2 2.1.6 7.4.2 

### Comment Excerpt Text: Long

- term implications of EPA’s interpretation of its 4010 authority: Most of EPA’s rationale for considering RCRA Subtitle C regulation of CCRs derives wholly from its self

- imposed limitation on RCRA to provide EPA regulatory authority only for hazardous wastes an d municipal solid waste (“MSW”) [Footnote 2: As EPA acknowledges, “the technical unit design and groundwater monitoring requirements that will effectively protect human health and the environment under either option are quite similar.” CCR Proposal at 3515 9.]. This constrained reading of RCRA leaves EPA now and in the future with very little authority to meet RCRA’s mandate to protect human health and the environment. Under the rational of this rule, of the 7.6
billion tons of solid waste EPA estimates to b e in existence [Footnote 3: See http://www.epa.gov/osw/nonhaz/index.htm. ] , the Agency would have regulatory authority over only 46 million tons of hazardous waste (6.9 million tons of non

- wastewater) (CCR Proposal at 35172) and 250 million tons of MSW . This constitutes less than four percent of the wastes for which RCRA could provide protection.

This limitation is very shortsighted, and undervalues the important protections EPA and the states have afforded communities under RCRA authority. Our experienc e under the RCRA Subtitle C and D programs has been comparable; under both programs, we see state regulators bringing expertise and rigor to the task of permitting and overseeing hazardous waste and MSW landfills, assuring the facilities achieve RCRA’s goa l of protecting human health and the environment [Footnote 4: For a recent assessment of the effectiveness of EPA’s regulatory program for MSW landfills, see http://www.wm.com/sustainability/pdfs/Geosyntec_report_

- _Environmental_Protection_at_the_Managed_S olid_Waste_Landfill_06201.pdf.]. When EPA has provided the kinds of clear and detailed guidelines evident in the RCRA Subtitle C regulations and Subtitle D criteria for MSW landfills, state regulatory authorities responded with programs implementing the hi gh siting, technical and operational standards EPA intended. The states assure those standards remain in force for the life of a facility’s permit, including the necessary post

- closure monitoring period. Through the approval process and as states revise th eir programs over the years, EPA Headquarters and, in particular, the Regions provide scrutiny, technical assistance and oversight.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preambl e discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical standards t he Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 200 9

- 0640

- 06723

- 3 

### Organization 1 

### : West Virginia Department of Environmental Protection (WVDEP) 

### Commenter 1 : Gary Casto on behalf of Randy C. Huffman Commenter Type: State Government Classification: Substantive434

Comment Category: Current Task: Examine Context Ass igned/Due:



### Comment Excerpt Text:
The inclusion of coal ash as a Subtitle C waste would also act as "defacto" elimination of beneficial alkaline amendment use of certain coal ashes in mining. This would noticeably inhibit
the restoration of several acidic streams in northern West Virginia.

Response: The commenter is referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.



### Co mment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06808

- 12 

### Organization 1 

### : New Mexico Environment Department (NMED) and Energy, Minerals and Natural Resources Department (EMNRD) 

### Commenter 1 : Bill Brancard Commenter Type: State Government Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.7.6 

### Comment Excerpt Text: Regulation under RCRA Subtitle C is more desirable because it gives New Mexico a stronger role and more authority to assure that CCRs are properly managed and that any existing contamination is cleaned up. NMED has demonstrated that it has a strong Subtitl e C program, especially as it relates to operating permits and corrective action, as shown by its oversight of Los Alamos National Laboratory, Sandia National Laboratory, and Kirtland Air Force Base. In addition, Subtitle C financial assurance requirements will help ensure that New Mexico is not left paying for cleanup, closure, and post

- closure care of the CCR units should the owners decide to close the facilities prior to completing their regulatory requirements.

Response: The Agency acknowledges and a ppreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Uni t VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 26 

### Organization 1 

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

### Commenter 1 : David B. Haldeman435

Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.4.2 

### Comment Excerpt Text: It would be helpful if EPA would clarify in its final rule how state voluntary cleanup programs might be used to address corrective ac tion found necessary at CCR landfills under either a Subtitle C or Subtitle D approach.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furt hermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09728

- 5 

### Organization 1 

### : Intermountain Power Service Corporation (IPSC) 

### Commenter 1 : Jon A. Finlinson Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.2 

### Comment Excerpt Text:
5. EPA has not proven that Subtitle C option is actually required for safe management of CCR disposal.

The EPA strongly implies that federal oversight under a Subtitle C management is the best option for CCR disposal. IPSC disagrees. Subtitle C will be ove rly burdensome, unnecessarily costly, and does not have the cost

- benefit ratio one would expect for improved CCR oversight.

CCR management under a Subtitle D program however can be sufficiently protective at a more
moderate cost. The EPA's discussion in the preamble supports this. The EPA discounts the D option due to the "need" for federal oversight. Again, given such a low number of actual damage cases applicable to improper CCR disposal with limited oversight, it appears that just the slight nudge in t he right direction where it is needed under Subtitle D would drop any potential future
cases to zero. We believe that a review of those States where Subtitle D

- like programs are in place prove this concept out. Also, of the proven damage cases cited, the m ajority were addressed through State administrative action.

The EPA never clearly articulates in the preamble what the actual need is for federal436

enforcement and permitting beyond what States could provide if empowered under Subtitle D.
The EPA does howe ver make at least two assertions intimating that Subtitle C is unwarranted. First, it states that it believes CCR already meets universal treatment standards (UTS). Since the idea of Subtitle C is to ensure treatment to UTS for disposal, it is arguable tha t to expand this oversight to UTS compliant waste is unnecessary. Second, the EPA states its belief that without any regulations, over 90 percent of sites are already below the risk level the EPA proposes
facilities must meet under Subtitle C.

Response: T he Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expec t states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10755_DEN

- 067

- 4 

### Organization 1 

### : National Ready Mixed Concrete Association (NRMCA) 

### Commenter 1 : Dan Huffman Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: 3.) Potentially stricter state laws impacting beneficial use: For example, a proposed rule in the state of Maryland, state s that any product containing fly ash is to be disposed of in a special facility authorized to accept fly ash. More states will establish similar laws that will further limit the beneficial use of fly ash.

Response: The commenter is referred to Unit IV o f the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0280

- 5 

### Organization 1 

### : Strategic Environmental Analysis, LC 

### Commenter 1 : Richard Fortuna Commenter Type: Other Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.1 7.4.2 

### Comment Excerpt Text: The states are in no position to take this one on alone. They are simply too leveraged by an industry that provides vital services, and which has gotten used to having their own way on this437

issue for 3 decades. What the Agency is wi tnessing from the electric utilities in the CCR Proposal is no different than what the chemical industry was doing at the time of Superfund’s consideration: current managements are simply trying to kick the can down the road by deferring liability/expendit ures for current and past mismanagement and corner

- cutting until the next management team takes over. No one wants to take the economic and/or liability hit for years or lax environmental management on their watch. The pressure to perpetuate this “deferred liability scheme” is most directly visited upon their local and state governments. Absent a strong RCRA regulatory mandate such as was contained in the Proposal, the states will be left to fend for themselves but few tools to prevent the next Kingston. Fo r the sake of the residents near these 230+ facilities, and in order to give the states the tools they truly need to fend off an unrelenting faction, the Agency must regulate CCRS as a RCRA “hazardous waste” with all due speed.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0286

- 2 

### Organization 1 

### : FirstEnergy Corp. 

### Commenter 1 : Mike Horvath Commenter Type: Electric Utility Company
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:
Other Sections: 7.4.2 

### Comment Excerpt Text: FirstEnergy comment: Of the 35 states whose submittals are available in this NODA, it is important to note that all but one state, New Mexico, reje ct the concept of regulating coal combustion products as RCRA C hazardous waste. FirstEnergy agrees with the comments of those 34 states that RCRA C regulation is unnecessary. Regarding the position of New Mexico, we support any state
determination that th eir state regulations should go beyond the RCRA D nationally favored baseline approach to coal combustion byproduct regulation . Ideally, every state has the right to determine the level of required regulation of their own state wastes and wastes they acce pt from other states to protect the environment and to consider the geographical, geological, and hydrologic aspects of that state.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preambl e discussion for the Agency’s rationale for438

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical standards t he Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans. 

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# Issue Report

Initiative: Coal Combustion Residuals Proposed Rule 

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### Number of Issues: 1

Section 7.4.1

- EPA solicits comment on states’ concerns that any federal regulation under RCRA Subtitle D has potential to c ause disruption to states’ implementation of CCR regulatory programs under their own authorities, including more specifics on potential procedural difficulties for state programs, and any measures that EPA might adopt to try to mitigate these effects (3515 8, 35224) Total Number of Submissions: 46 Total Number of Comments: 87



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 01418

- 1 

### Organization 1 

### : Zephyr Environmental Corporation 

### Commenter 1 : Paul C. Moore Commenter Type: Other Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.7 4.4.5.1.1 4.4.7.2 4.4.7.4439



### Comment Excerpt Text: I noted that subsections 257.62 through 257.64 of Alternative 1: Co

- Proposal Under Authority of
Subtitle D

- PART 257 restr ict the characterization, study, appraisal, investigation, analysis, geoscientific review and evaluation of fault areas, seismic impact zones and unstable areas (geologic related hazards) to registered professional engineers. This restriction is in opposit ion to many state statues that define such work as the public practice of geology or geosciences. My home state, Texas, has such a statute. The Texas Geoscience Practice Act also allows the making of recommendations regarding the geoscientific components o f the engineered structure, work, or process by a licensed geoscientist. A Texas licensed professional engineer who normally performs service or work that is both engineering and geoscience is not required to be a licensed geoscientist under this Act.

Ti tle 30 of the Texas Administrative Code, Chapter 330 requires that studies of differential subsidence or faulting be conducted by either a licensed professional geoscientist qualified to evaluate conditions of differential subsidence or faulting or a licen sed professional engineer experienced in geotechnical engineering.

I therefore strongly recommend that "or a licensed professional geologist/geoscientist" be added after "professional engineer" in proposed 257.62 through 257.64 to bring the proposed regu lation concurrence with state statutes and regulations.

Response : The Agency appreciates and acknowledges this comment. The commenter is referred to Unit V of the preamble for a discussion of the Agency’s rationale to require only qualified professional engineers (as defined in the rule) to certify technical demonstr ations of the owner or operator.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 1 

### Organization 1 

### : Kansas Department of Health and Environment 

### Commenter 1 : William L. Bider Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 

### Comment Excerpt Text: As proposed, this regulation will significantly impact the State of Kansas in numerous ways regardless of whether EPA decides to regulate disposal under Subtitle C or Subtitle D. Changes in either proposed option are needed to avoid unnecessary adverse impacts to state regulatory programs, private businesses, and human health and the environment. In general, this proposal, including the Subtitle D approach, applies a re gulatory scheme which does not include the appropriate level of flexibility to consider and allow what is necessary and appropriate in all geologic and climatic settings.440

Response: The Agency acknowledges and appreciates the comment. The commenter is
ref erred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and d iscussion of the technical standards the Agency is promulgating in this rule, Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management p lans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 12 

### Organization 1 

### : Kansas Department of Health and Environment 

### Commenter 1 : William L. Bider Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.5.3.1 

### Comment Excerpt Text: Kansas would also like to emphasize that states are best equipped to make beneficial use determinations for CCR, whether the uses are in construction or agricultural applications. EPA's
rule sh ould include provisions to delegate this responsibility to states along with the authority to issue permits for disposal areas (both landfills and surface impoundments) under Subtitle D.

In summary, Kansas believes the best approach to regulating CCR nati onally is to develop regulations under Subtitle D, including a required permitting program, that can be administered by states. The permitting program should allow states flexibility to consider local conditions as they relate to the design of liners, leac hate management, and final covers. The beneficial use aspects to this rule should also be delegated to approved state agencies.

Response: The commenter is referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 3 

### Organization 1 

### : Kansas Department of Health and Environment 

### Commenter 1 : William L. Bider Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Kansas recognizes that all states may not have similar regulatory programs that provide the se safeguards; however, EPA should not promulgate new CCR regulations that would adversely impact proven state regulatory programs such as in Kansas. Any federal regulations should441

establish minimum requirements to be applied to facilities in states where no approvable state regulatory program exists, but they should allow states to demonstrate that their regulatory programs are adequately protective.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
tech nical standards the Agency is promulgating in this rule, Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 7 

### Organization 1 

### : Kansas Department of Health and Environment 

### Commenter 1 : William L. Bider Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.4.5.1.1 4.4.8.5 

### Comment Excerpt Text: While a Subtitle D regulatory approach is preferred by the State of Kansas, the proposed regulations under this approach also should be amended. The proposed regulations do not provide states with flexibil ity to consider alternative liners, leachate management methods, or final covers considering variable local conditions with respect to soil types, depth to groundwater, distance from surface water, and annual precipitation. The prescriptive one

- size

fits

- a ll conservative approach is unnecessary in areas where local conditions provide an adequate and preferred degree of natural protection.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule, Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 04003

- 4 

### Organization 1 

### : Environmental Council of the States (ECOS) 

### Commenter 1 : Lia Parisien on behalf of John W. Mitchell442

Commenter Ty pe: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 

### Comment Excerpt Text: Regardless of whether the Subtitle C or Subtitle D approach is adopted by EPA, there will be significant effects on state waste management programs.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rul e for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule, Furthermore, the commenter is
also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### _____________________________________________________________________
Comment Number: EPA

- HQ

- RCRA

- 2009

- 064 0

- 04003

- 6 

### Organization 1 

### : Environmental Council of the States (ECOS) 

### Commenter 1 : Lia Parisien on behalf of John W. Mitchell Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
S hould EPA propose the more logical Subtitle D approach, state programs need to assess their solid waste program capability to oversee the resulting work.

Response: The Agency acknowledges and appreciates the comment. The commenter is
refe rred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and di scussion of the technical standards the Agency is promulgating in this rule, Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management pl ans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06128

- 13 

### Organization 1 

### : Owensboro Municipal Utilities 

### Commenter 1 : Kevin D. Frizzell Commenter Type: Electric Utility Company Classification: Substantive443

Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: While EPA's Subtitle D option would impose substantial costs on utility operations, it would not discourage CCR beneficial use and is nowhere near as disruptive to state waste management programs as is the Subtitle C h azardous waste option.

Response: The commenter is referred to Unit IV of t he preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06198

- 3 

### O rganization 1 

### : Ameren Corporation 

### Commenter 1 : Paul R. Pike Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: II. State Implementation

While Ameren sup ports the Subtitle D Prime option (with the adjustments discussed below), a major shortcoming of this approach, as well as with the other Subtitle D alternatives, is the lack of any mechanism for qualified state programs to step in and directly administer the Subtitle D CCR regulations where the state programs meet or exceed the federal controls. One of the Agency's primary reasons for concluding in its 2000 Regulatory Determination that CCRs do not warrant Subtitle C regulation was Congress's admonition in the Bevill Amendment against duplication of efforts by other federal and state agencies. Unfortunately, EPA has failed to adhere to this congressional directive in the proposed Subtitle D regulatory alternatives, including the Subtitle D Prime option.

E PA clearly must have recognized the nature of state programs in their preamble discussion on a "state first concept under a Subtitle C program. EPA asked for comments on whether certain state programs can be evaluated and maintained rather than imposing Su btitle C requirements on CCRs (75 FR 35220

- 35221). This has been called the "state first" approach, whereby EPA would delay implementation of a federal rule for a specific period of time to enable states to adopt enforceable Subtitle D rules that are prote ctive of human health and environment and approved by EPA. Since EPA had considered this concept for Subtitle C it would make even more sense to implement this approach under a Subtitle D program.

EPA should be well aware that there are many mature state CCR regulatory programs with permitting, liner, and groundwater monitoring controls similar to those proposed in the Subtitle D options. in fact, EPA concluded in its 2000 Regulatory Determination that state CCR controls have "substantially improved over the last 15 years," and that a "high percentage of states had444

authority to impose protective management standards on surface impoundments and landfi11s, especially for groundwater monitoring, liners, and leachate collection .... "

Under a dual regulatory approach, for example, an owner/operator of a CCR disposal facility
could be found to be in non

- compliance with a groundwater monitoring requirement that is
contained in both the Subtitle D self

- implementing rule and in an independently administered

state regulatory program. In these circumstances, the owner/operator could be subject to a citizen suit enforcement action in federal court for alleged violation of the self

- implementing Subtitle D rule, and to a wholly separate enforcement action in state cour t for violation of the parallel state requirement. This makes no sense; apart from the waste of federal and state judicial resources, it could result in inconsistent federal and state court determinations with respect to an identical regulatory requirement . It also could result in duplicative federal and state penalties for essentially the same regulatory infraction.

It is important that any final Subtitle D rules for CCRs include a mechanism for qualified state programs to administer the rules in lieu of the self

- implementing approach set forth in the proposal. EPA should be able to develop a process for evaluating state CCR controls and determining whether state controls are no less stringent than the final Subtitle D controls (much
like EPA does now in the case of municipal solid waste landfills under 40 C.F.R. Part 258). In those states that have qualifying controls for CCRs, EPA would allow the states to administer the controls to avoid the duplication of regulatory programs, with appropriate EPA backu p. In this way, many of the self

- implementing procedures in the Subtitle D approach could be eliminated as there would be a qualified state regulatory body with responsibility for ensuring compliance with the applicable requirements. This approach would al low for the requisite degree of state involvement in administration of the CCR rules that EPA concluded was appropriate in its Report to Congress and final Regulatory Determinations, and avoid duplication of regulatory controls as directed by the Bevill Am endment.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule, Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06203

- 10 

### Organization 1 

### : Arizona Public Service Company (APS) 

### Commenter 1 : Scott Davis Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1 7.1.2.2445



### Comment Excerpt Text: A. Mechanism for State Implementation of CCR Rules

While APS supports the Subtitle D Prime option, a major shortcoming of this approach, as well as with the other Subtitle D alternatives, is the lack of any mechanism for qualified state programs to step in and directly administer the Subtitle D CCR regulations, where the state programs meet or exceed the federa l controls. Such an approach makes no practical sense, and it would result in parallel and redundant regulatory programs for the same materials. Many states have regulatory programs in place that meet or exceed the Subtitle D standards in EPA's proposal

an d for this reason APS believes the D

- Prime option should allow qualified state programs to administer the federal program.

For example, the Arizona Department of Environmental Quality ("ADEQ") administers the Aquifer Protection Permit program ("APP Progra m"). This is a comprehensive program that protects the state's groundwater resources by a combination of discharge reduction through use of Best Available Demonstrated Control Technology ("BADCT") and compliance with Aquifer Water Quality Standards ("AWQS" ) at the applicable Point of Compliance ("POC").

A permitee is required to "...ensure the greatest degree of discharge reduction achievable through application of the best available demonstrated control technology, processes, operating methods
or other al ternatives, including, where practicable, a technology permitting no discharge of pollutants." Arizona Revised Statutes § 49243. B.1. Pollutants discharged from the permitted facility may not exceed an AWQS at the applicable POC. The POC is located down gr adient of the site at the edge of the Pollution Management Area ("PMA"). There are both numeric and narrative standards that apply and all aquifers are protected for drinking water use and the AWQSs are drinking water standards. In addition, if the ambient water quality of the aquifer exceeds an AWQS, no pollutant discharged may further degrade the water quality at the applicable POC.

The program is broad in scope and detailed in its requirements. All facilities that discharge are required to obtain an Aqu ifer Protection Permit (APP). The definition of discharge is "...the addition of a pollutant from a facility either directly to an aquifer or to the land surface or the vadose zone in such a manner that there is a reasonable probability that the pollutant will reach an aquifer." Arizona Revised Statutes § 49

- 201.12. In addition to this general requirement, many facilities are categorically defined as discharging facilities. These include surface impoundments
and solid waste landfills. Arizona Revised Statut es § 49

- 241 .B 1. An aquifer is defined as "a geologic unit that contains sufficient saturated permeable material to yield usable quantities of water to a well or spring." Arizona Revised Statutes § 49

- 201.2. The APP regulations further
define the term "us able quantities" to mean "...five gallons of water per day." Arizona
Administrative Code R18

- 11

- 501.4.

The major components/requirements of an APP are listed below:

• BADCT446

• Compliance with AWQSs at the POC

• Technical Capability

• Financial Capa bility

• Zoning

The aquifer protection permit program is designed to protect groundwater quality using a two tiered approach. The first level of protection is discharge reduction through the use of BADCT. The goal of the BADCT requirement is to prevent to the greatest extent possible the discharge of pollutants to the aquifer. In fact as noted above, the BADCT design must, where practicable, include alternative technologies permitting no discharge of pollutants. Permits include inspection and monitoring requirements to insure that the facility BADCT performs as designed.

The second level of defense is the requirement to meet AWQSs at the applicable POC. Arizona Revised Statutes § 49

- 243. The POC is located in the shallow most aquifer at the downgradient edge of the PMA. For example, the PMA for a surface impoundment is the outer edge of the impoundment. The POC must also be located to ensure protection of all current and reasonably foreseeable future uses of the aquifer. Arizona Revised Statutes § 49

- 244

.

The permittee must also show that they have the technical and financial capability to construct, operate and eventually close the facility. Arizona Administrative Code R18

- 9

- A203. Design plans and most required technical reports require submittal by a r egistered engineer or geologist. The permittee must also submit financial information on the costs to construct and operate, and the cost associated with post closure and closure of the facility. The permit would not be issued without presenting an approve d method of financial assurance. This showing can take the form of a surety bond, certificate of deposit, trust fund, letter of credit, insurance policy, cash deposit, or financial guarantees. ADEQ can withdraw approval to operate if there is evidence that the permittee would lose the capability to meet the requirements for financial assurance.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale fo r promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule, Fu rthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.447



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06203

- 12 

### Organization 1 

### : Arizona P ublic Service Company (APS) 

### Commenter 1 : Scott Davis Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Working in tandem, the ADEQ Aquifer Protection Permit Program and the ADWR Dam Safety Program meet or exceed the Subtitle D standards in EPA's proposal, and it makes no practical sense not to allow states with qualified programs, in this case Arizona, to administer the federal Subtitle D program. To do otherwise would result in parallel and redundant regulatory programs
for the same materials.

Under a dual regulatory approach, for example, an APS could be found to be in non

- compliance with a groundwater monitoring requirement that is contained in both the Subtitle D self

implementing rule and in ADEQ's APP Program. In such a circumstance, APS could potentially be subject to a citizen suit enforcement action in federal court for alleged violation of the self

implementing Subtitle D rule, and to a wholly separate enforcement action in state court for violation of the parallel ADEQ requirement. This makes no sense; apart from the waste of federal and state judicial resources, it could result in inconsistent federal and state court determinations with respec t to an identical regulatory requirement. It also could result in duplicative federal and state penalties for essentially the same regulatory infraction.

It is essential that any final Subtitle D rules for CCRs include a mechanism for qualified state

prog rams to administer the rules in lieu of the self

- implementing approach set forth in the proposal. As discussed in comments submitted by USWAG, EPA could readily develop a process for evaluating state CCR controls and determining whether state controls are no less stringent than the final Subtitle D controls (much like EPA does now in the case of municipal solid waste landfills under 40 C.F.R. Part 258). In those states that have qualifying controls for CCRs, EPA would allow the states to administer the cont rols to avoid the duplication of regulatory programs, with appropriate EPA backup. In this way, many of the self

- implementing procedures in the Subtitle D approach could be eliminated as there would be a qualified state regulatory body with responsibility for ensuring compliance with the applicable requirements. This approach would allow for the requisite degree of state involvement in administration of the CCR rules that EPA concluded was appropriate in its Report to Congress and final Regulatory
Determina tions, and avoid duplication of regulatory controls.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule fo r the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule, Furthermore, the commenter is
also refe rred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.448



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06254

- 23 

### Organization 1 

### : Sunflower Electric Power Corporation 

### Commenter 1 : Paul E. Reynolds Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.4.4 4.4.5 

### Comment Excerpt Text: While a Subtitle D regulatory approach is the preferred option from Sunflower Electric’s perspective, there is a need for some “tweaking”. The proposed regulations do not provide sufficient flexibility to consider alternative liners, leachate management methods, or final covers
to accommodate variables in loca l conditions such as soil types, depth to groundwater, distance from surface water, and annual precipitation. The prescriptive one

- size

- fits

- all approach unnecessarily ties the hands of state regulators and prevents them from tailoring permits to match
the landfill design requirements to actual physical circumstances. For example, many aspects of the design imposed in the proposed regulation may be unnecessary in areas where local conditions provide an adequate and preferred degree of natural protection.

R esponse: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impound ments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule, Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on ho w EPA expect states to incorporate the CCR rules into state solid waste management plans.



### _____________________________________________________________________
Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 103 

### Organization 1 

### : Kentucky Department for Environm ental Protection 

### Commenter 1 : R. Bruce Scott Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.5 

### Comment Excerpt Text: The Commonwealth of Kentucky favors the Subtitle D approach as being the less disruptive of the two major proposals. However, we recommend the following additions:

- Elimination of Professional Engineer and Professional Geologist certifications in the absence of prior state agency review. We sug gest instead the permit application review program envisioned by 40 CFR 239 for state MSW landfill programs.449

- Detailed Subtitle D regulations that states would incorporate with lining requirements and enhanced monitoring including variance provisions simi lar to those found at 40 CFR 258 for MSW landfills;

- Financial Assurance for closure, post

- closure, groundwater corrective action and non

- utility dike integrity under Subtitle D instead of the proposed overly broad CERCLA;

- Funding based on the anticipat ed permitting, closure and inspection workload for states to implement these rules. Kentucky estimates the need for six to twelve additional person

- years to implement these provisions.

Response: The Agency acknowledges and appreciates the comment. The co mmenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a pres entation and discussion of the technical standards the Agency is promulgating in this rule, Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid wast e management plans.



### ___________________________________________________________________
Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 20 

### Organization 1 

### : Kentucky Department for Environmental Protection 

### Commenter 1 : R. Bruce Scott Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.5 4.6.1 

### Comment Excerpt Text:
Subtitle D effective date:

Because of the process for promulgating regulations in Kentucky (Plea se refer to http://www.lrc.ky.gov/KRS/013A00/CHAPTER.HTM for the Kentucky regulation development process), it will require a longer period for developing and incorporating regulations. This is particularly true if EPA does not promulgate national solid was te regulations for states to implement that comprehensively address disposal, the permitting process, public notice, state delegation and funding. Kentucky requests five years to develop regulations and issue the permits and an additional 5 years from the effective date of the Kentucky regulations for a total of 10 years from the effective date of the national rule for liners and groundwater monitoring for landfills and surface impoundments. Since independent self

- certification by professionals would be a p roblem, the Commonwealth prefers a full regulatory program.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.450

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule, Furthermore, the commenter is
al so referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### _____________________________________________________________________ Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 22 

### Organization 1 

### : Kentucky Department for Environmental Protection 

### Commenter 1 : R. Bruce Scott Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sect ions: 4.5 4.2.2 

### Comment Excerpt Text: EPA Funding and Support of State Programs

Even under Subtitle D, the department would be at a severe timing and funding disadvantage. In these challenging economic times, state general funding, which is the cornersto ne of solid waste funding, adsorbs most of the agency cuts and is well below previous levels. EPA is proposing a
self

- certification process by independent professional engineers and geologists. This signals to some legislators that our agency should not be involved in the process, thus undercutting our legitimacy for agency funding requests during the biennium budget and fee process and affects our ability to provide oversight, which we feel is essential. Kentucky requests that the agency delay the effectiv e date five years, require state adoption of national regulations and provide funding. Since this requires the EPA to request a revision to RCRA from Congress, we urge the agency to do so.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule, Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06275

- 26 

### Organization 1 

### : Lansing Board of Water and Light (BWL) and Michigan State University (MSU) 

### Commenter 1 : Jeffrey L. Woolstrum C ommenter Type: Electric Utility Company Classification: Substantive451

Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: To make matters worse, the proposed Subtitle D CCR landfill requirements are different from and, in some cases conflict with, the requirements imposed on existing MSW landfills regulated
under EPA

- approved state Subtitle D programs. Thus, MSW landfills that also receive CCRs would be subject to competing and overlapping state and federal requirements, dr iving up the cost of all waste disposal. Finally, as discussed in the next section of these Comments, the burdens imposed by the Subtitle C option far outweigh any benefits of that option.

Response: The Agency acknowledges and appreciates the comment. Th e commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. It is important to note in the applicability section that EPA is not regulating municipal solid waste landfills that receive CCR for disposal or daily cover.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06280

- 11 

### Organization 1 

### : South Carolina Department of Health and Environmental Control 

### Commenter 1 : Daphne Neel Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.1 

### Comment Excerpt Text: In summary, the Department believes that those states like South Carolina that have existing statutes and regulation in place to regulate CCR should be allowed to continue to do s o, and that federal regulation would create unnecessary duplication, confusion, and barriers that would not result in any greater environmental or public health protection. However, if EPA chooses to move forward with a regulation, it should do so under Su btitle D with provisions to allow states to administer their own programs that are equivalent or more stringent than the federal regulation.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical sta ndards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.452



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06280

- 16 

### Organization 1 

### : South Carolina Department of Health and Environmental Control 

### Commenter 1 : Daphne Neel Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: South Carolina implements and enforces comprehensive solid waste management and water programs that adequately address the management, disposal, and reuse of CCR. Most of the technical requirements addressed by the proposed Subtitle D regulation are already addressed by state regulation and, in some instances, the state's requirements are more stringent than those proposed by EPA. If EPA proceeds with regulating CCR under Subtitle D, the Department strongly recommends that provisions b e added whereby EPA has a process that acknowledges states with existing solid waste regulatory programs that are equivalent to the minimum national criteria in the federal regulation, and authorizes those states to implement and enforce the federal regula tion.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussi on on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06280

- 17 

### Organization 1 

### : South Carolina Department of Health and Environmental Control 

### Commenter 1 : Daphne Neel Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.2.1 

### Comment Excerpt Text: Making the proposed Subtitle D regulation self

- implementing, and placing the state in the role of a citizen enforcer under citizen suit provisions of RCRA 7002 is an untenable position for those states that already have a robust solid waste management program. By EPA's own statement, under the proposed Subtitle D regulation, "facilities can comply without interaction with a regulatory agency." Yet, these same facilities must already interact with the Department on permit applications, consistency reviews, operating and design requirements, groundwater monitoring, closure and post

- closure req uirements, and financial assurance. To attempt to parse453

through the federal requirements and treat them separately from the state's program is unworkable for industry as well as the Department. There will be state requirements that are in conflict with, in addition to, or separate from the federal requirements. The Department cannot be placed in a position whereby it seeks to enforce compliance with its state requirements through the administrative enforcement process while at the same time proceeding to en force similar or overlapping requirements through the RCRA 7002 citizen suit provision.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furt hermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06280

- 18 

### Organization 1 

### : South Carolina Department of Health and Environmental Control 

### Commenter 1 : Daphne Neel Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.7 

### Comment Excerpt Text: If EPA pr oceeds with a regulation under Subtitle D, the Department strongly recommends that it include a process whereby EPA acknowledges those states with existing solid waste regulatory programs that are equivalent to the minimum national criteria in the regulati on, and authorizes those states to implement and enforce the federal regulation. Provisions should also be added that clearly state that the federal regulation is not a substitute for existing state regulation of CCR, and that states may be more stringent than the federal requirements. This clarification could be placed in Section 257.50 of the proposed regulation, thereby strengthening the language concerning the applicability of other regulations.

Response: The Agency acknowledges and appreciates the co mment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the pream ble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into st ate solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06280

- 2 

### Organization 1 

### : South Carolina Department of Health and Environmental Control454



### Commenter 1 : Daphne Neel Commenter Type: State Government Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.1 

### Comment Excerpt Text: However, if EPA moves forward with a final rule, the Department believes that the preferred approach should be regulation under Subtitle D, provided that c hanges are made to the rule that acknowledge and allow flexibility in states like South Carolina that already have comprehensive solid waste management and water programs in place.

Response: The Agency acknowledges and appreciates the comment. The comme nter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a present ation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste m anagement plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 3 

### Organization 1 

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

### Commenter 1 : Chris M. Hobson Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 

### Comment Excerpt Text: a. EPA’s Distrust of the States Is Unwarranted, Unsupported by the Record, and Contrary to the
Statute.

Southern Company’s service territory utilities operate in four different states. The regulatory programs of those states (as discussed in Part VI below) represent a microcosm of the variety of regulatory approach es around the nation. Some states have extensive experience regulating CCBs in a manner similar to solid waste, while others impose few solid waste restrictions. Some states provide regulatory oversight of beneficial uses, while others do not.

EPA refers to states that have not developed RCRA

- type regulations for CCBs as a basis to question the states’ ability to implement a CCB program under Subtitle D. However, reference to the status quo is not predictive in the context of CCBs for a simple and obvious reason: EPA has not promulgated regulatory standards for CCBs, and under the Bevill amendment, states are not455

required to take action until EPA provides regulatory direction. [Footnote 18: See 42 U.S.C. 6921(b)(3).] The question for today is what the stat es will do if and when EPA adopts Subtitle D standards. The only meaningful way to assess this question is to review the response of the states to Subtitle D standards in the past. If EPA has issued Subtitle D guidance for solid waste streams
for which EPA lacked direct enforcement authority, and states and industry have failed to respond in a manner EPA would deem appropriate, that set of facts might inform deliberations on the question of how the states would respond to Subtitle D standards for CCBs. [Foo tnote 19: Given the magnitude of CCB disposal and management and its association with a critically important public utility, i.e., the delivery of electric energy, it is also possible that any given state is more likely to take direct responsibility for re gulating CCB disposal under a Subtitle D standard compared to other forms of solid waste. The point is that EPA has not developed sufficient information in the record to assess the question in any meaningful way.] However,
EPA has made no effort to address that question. Rather, EPA assesses state performance in an area where EPA itself has had authority to take regulatory action for more than thirty years and has declined to do so. The present status of state regulation of CCBs has more to do with EPA’s

ow n regulatory treatment of CCBs than any deficiency of the state agencies.

EPA should acknowledge the reality that CCBs are a high volume, low toxicity solid waste. The TVA incident had nothing to do with the characteristics of coal ash as such, which is a key question in deciding between Subtitles C and D. Rather, the Kingston incident resulted from the mismanagement of a large volume of waste. There is absolutely nothing about Subtitle C that makes it better suited to addressing that kind of issue than S ubtitle D; again, the only significant
difference is the role of the states.

EPA may not be pleased with the respective regulatory roles of EPA and the states under RCRA Subtitle D. Nevertheless, how and to what extent EPA is involved with the regulation of high volume solid waste has already been determined by Congress. It is neither appropriate nor legal for EPA to force CCBs into a Subtitle C program simply because EPA has a preference for the
administrative and enforcement tools of Subtitle C. EPA sho uld not use RCRA Subtitle C as a way to commandeer enforcement authority from the states. Congress has decided that the states are capable of implementing and enforcing solid waste programs. In the absence of a determination that states will not be capable of responding to Subtitle D guidance, based on evidence and an explanation of the agency’s rationale, it is not for EPA to second

- guess the decision of Congress with respect to EPA’s regulatory role.

EPA has recognized the importance of site

- specific an d region

- specific factors when dealing with CCBs, and the state agencies are better prepared than EPA to address those issues and be the principal regulators of CCBs. The state agencies have the greatest experience and expertise with respect to the site

- a nd region

- specific factors and controls that are best suited to address
CCBs.

Moreover, as EPA acknowledges, states and the regulated community have made significant advances in CCB management in recent years. [Footnote 20: 75 Fed. Reg. at 35150.] EPA

co ncluded in its 2000 CCB Regulatory Determination that “with the exception of relatively few states, the regulatory infrastructure is generally in place at the state level to ensure adequate management of these wastes.” [Footnote 21: 65 Fed. Reg. at 32217.] EPA and the Department of456

Energy (“DOE”) further found in their joint 2007 Report of state CCB controls that “[t]he data and analyses documented in this report provide new information that appears to show improved management of CC[B]s in both landfills an d surface impoundments.” [Footnote 22: DEBORAH ELCOCK & NANCY L. RANEK, COAL COMBUSTION WASTE MANAGEMENT AT LANDFILLS AND SURFACE IMPOUNDMENTS, 1994

- 2004 S

- 11 (2006), http://www.fossil.energy.gov/programs/powersystems/pollutioncontrols/coal_waste_repo rt.p df [hereinafter “DOE/EPA REPORT”]. ] In September 2008, the Environmental Council of the States (“ECOS”) issued a resolution that states already have regulations in place that apply to CCBs and that a federal regulation is not necessary. The 2008 ECOS reso lution was revised in March 2010 and calls upon EPA to conclude that federal CCB regulations would be duplicative of most state programs, are unnecessary, and should not be adopted, but if adopted must be developed under RCRA Subtitle D rather than RCRA Su btitle C. [Footnote 23: See Environmental Council of the States [ECOS], The Regulation of Coal Combustion Products,
Revised Res. 08

- 14 (Mar. 23, 2010), available at http://www.ecos.org/files/4018_file_Resolution_08_14_2010_version.doc.] ECOS

—

[a]grees wi th U.S. EPA’s finding in the 2005 study . . . that “the regulatory infrastructure is generally in place at the state level to ensure adequate management of these wastes” and believes that states should continue to be the principal regulatory authority . . . as they are best suited to develop and implement CC[B] regulatory programs. [Footnote 24: Id.]

Based on its findings in the 2000 final Regulatory Determination and the supplemental 2007 joint EPA/DOJ report of state CCB programs, EPA is well aware that there are many mature state CCB regulatory programs with permitting, liner, and groundwater monitoring controls similar to those proposed in the Subtitle D options. In fact, EPA concluded in its 2000 final Regulatory Determination that a “high percentage of states had authority to impose protective management standards on surface impoundments and landfills, especially for groundwater monitoring, liners, and leachate collection . . . .” [Footnote 25: 65 Fed. Reg. at 32229.]

In any event, a program for the management of CCBs would require states to apply essentially the same methods that are currently in place for existing programs regulating other waste streams under Subtitle C and D. States already have the expertise needed to oversee construction and

ope ration of landfills and impoundments, groundwater monitoring, closure, and all the other elements that may apply in any new CCB program. [Footnote 26: For additional discussion on this point, see Part VI.A below. ] The regulatory issues associated with CCB disposal are essentially of the same nature as those that the states already address through existing Subtitle C and Subtitle D programs.

Under EPA’s Subtitle D proposal, state controls would be administered in addition to and
without coordination with nearly identical, self

- implementing federal controls. Such duplication is both unnecessary and unduly burdensome. Therefore, when crafting a Subtitle D regulation, EPA should make state flexibility a priority. EPA should enable states to tailor standards b ased on the type of ash generated, the characteristics of that ash, the land disposal methods used, the type of geology in the area, and the site’s groundwater conditions457

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 88 

### Organization 1 

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

### Commenter 1 : Chris M. Hobson Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: 3. Any Federal CCB Re gulations Should Account for Florida’s Regulatory Programs.

As set forth above, Florida’s approved Subtitle D programs for MSWLFs and groundwater protection program effectively address CCB disposal in Florida.

However, EPA’s Subtitle D proposal fails t o include important components, namely a mechanism for approval of effective state programs, like Florida’s, and the necessary state

specific flexibility for alternatives to the minimum criteria proposed by EPA. A prime example is Florida’s double HDPE geo membrane liner system, provided for in Florida’s Solid Waste Management Rule, which has been demonstrated to be an effective alternative to composite liner systems much like the one EPA has proposed in its rule coproposals.

While preferable to regulation under Subtitle C, a Subtitle D Prime approach that is inflexible, rigid, and prescriptive and that fails to recognize state

- specific natural environments and expertise is no panacea

Response: The Agency acknowledges and appreciates the comment. The comm enter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presen tation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.458



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06356

- 6 

### Organization 1 

### : U.S. Chamber of Commerce 

### Commenter 1 : William L. Kovacs Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: D. The U.S. Chamber opposes EPA’s proposal to create new RCRA Subtitle D requirements for CCRs. The record demonstrates federal coal ash regulations will duplicate and encroach on existing State regulatory programs. 75 Fed. Reg. at 35144 (citation omitted). Also, if Subtitle D should be modified to create a specialized CCR regulatory regime, then legislative action by Congress is the only appropriate means for doing so. EPA lacks the statutory authority to create
one RC RA Subtitle D regime for CCRs and one for all other non

- hazardous wastes, especially as EPA cites no evidence CCRs and CCR disposal facilities pose qualitatively or quantitatively different risks than any other Subtitle D waste disposal facilities. See 75 Fed. Reg. at 35193

- 35213

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06360

- 63 

### Organization 1 

### : ARIPPA 

### Commenter 1 : Jeff A. McNelly Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 

### Comment Excerpt Text: EPA has estimated that if the RCRA Subtitle D proposal is adopted, only 52% of the states would comply, whereas adoption of a RCRA Subtitle C proposal would assure 100% state participation. There is no evidence to support such estimation, and, in any event, the regulatory program should be based on valid scientific data and field experience, rather than guesswork.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to the RIA volume of the response t o comment document supporting this rule for a response to this comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06409

- 9 

### Organization 1 

### : Sta te of Alaska 

### Commenter 1 : Kristin J. Ryan Commenter Type: State Government459

Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The proposed Subtitle D regulations also have the potential to create a dual regulatory scheme in which CCR landfills will be subject to both Alaska's Subtitle D permitting program and the self

implementing regulations proposed as 40 CFR 257, Subpart D. In fact, EPA admits that facilities will need to comply with the proposed regulations independently of state regulations that differ from the proposed regulations. This will not only create a confusing regulatory situation for landfill operators but, because different standards could apply under the different regulatory programs, it is possible a CCR landfill could be approved under one set of regulations but not under the other. The ADEC does not find anything in the proposed regulations that provides guidance for how to deal with conflicting requirements between state and federal requirements.

For the EPA, the main deficiency in regulating CCRs under RCRA Subtitle D is the agency's lack of authority to require permits for landfills that don't receive hazardous wastes. This thinking ignores the fact that 86% of states i n which CCRs are generated already require permits for CCR landfills. [Footnote 7: Letter from ASTSWMO to Matt Hale, EPA, dated April I , 2009.
Available at http://astswmo.org/files/publications/Positionpapers/ASTSWMO

- CCB

- letter

attachments

- v2.pdf

]

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rat ionale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06411

- 11 

### Organization 1 

### : Alabama Department of Environmental Management (ADEM) 

### Commenter 1 : Gerald Hardy Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 7.1 

### Comment Excerpt Text:

It is our firm contention that Alabama's solid waste program is more than sufficient to adequately implement the regulatory requirements in the proposed Subtitle D option. While there may be resource issues that come to bear related to the potential increase in workload due to this proposed option, the same concerns would exist with the Subtitle C option. In fact, as stated earlier, the demands for State implementation of the Subtitle C option would be even more460

taxing on our existing resources.

Response: T he Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expec t states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06415

- 13 

### Organization 1 

### : The Virginia Coal Association, Inc. (VCA) 

### Commenter 1 : John T. Heard Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 9.3.7 7.3.1 

### Comment Excerpt Text: • Based on information the VCA has received from DEQ concerning the projected costs to the state of EPA's propose d alternative approaches, both approaches will impact Virginia's strained budget. The additional costs resulting from either approach will in all likelihood be passed along to permit holders (i.e. power producers and the coal industry) in the form of highe r fees. Virginia predicts that under the Subtitle C proposal an additional $350,000 per year will be needed to implement the program. Under the Subtitle D proposal, Virginia predicts an additional $76,000 per year will be needed. These costs would be for a program that is unnecessary in Virginia

- Virginia's current comprehensive coal combustion waste regulatory program is already protective
of human health and the environment.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste manage ment plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 71 

### Organization 1 

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

### Commenter 1 : Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government461

Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.2.2 

### Comment Excerpt Text: Section XI on p. 35211 of the preamble, entitled Impact of Sub D alternative on State programs, states that the proposed rule has no effect on state rules. It also states that CCR landfill owners would have to comply with all elements of the self

- implementing proposed RCRA Sub D CCR rules, more or less regardless of the content of State rules. We bel ieve that it is essential that the proposed rule recognize that State rules will apply to CCR landfills and to include a provision that States can approve CCR landfill with features that differ from the proposed rule requirements. As noted in several secti ons above, there are aspects of the proposed rule that may be less stringent than State rules or which address variations in engineering design or materials, climatic factors, or geologic situations that the proposed rule does not address or is in
contradi ction with modern technical or geotechnical practice. It is essential that State rules and review actions be allowed to modify requirements in the proposed RCRA Sub D self

implementing rule, to address technical judgment and to incorporate technical advanc es that the rule does not anticipate.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposa l of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is
also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 77 

### Organization 1 

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

### Commenter 1 : Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 

### Comment Excerpt Text: Section XIV, p. 35224 of the preamble, subheading “State Programs”, requests feedback on current State regulatory approaches to CCR and any potential for the proposed federal regulations to cause disruption of State implementation o f CCR regulation under State authority. Previous comments have pointed aspects of the proposed rules that have potential to disrupt implementation of Wisconsin rules and authority, including provisions for zone of saturation liner designs, gradient control system designs, and use of non

- standard construction material such as geosynthetic clay liners. Subsequent sections also point out the major disruption that will462

occur with Wisconsin’s beneficial use program. Rule writing to implement the Subtitle C optio n will in and of itself cause major, unnecessary workload and disruption due to diversion of staff
and resources to hazardous waste rule revisions.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
tech nical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 79 

### Organization 1 

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

### Commenter 1 : Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government Class ification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 

### Comment Excerpt Text: Wisconsin solid waste (NR 500 series) rules are already nearly fully compliant with the technical details in the proposed ru les for landfills. Any differences can be dealt with in short order by use of our codified plan review and approval process. Our solid waste disposal rules do not address surface impoundments, but any facility that might be considered a surface impoundment can be addressed by our general authority for processing facility rules. Feedback from the Wisconsin utility industry indicates that any facilities that might be considered surface impoundments will
be taken out of service in the near future.

Based on t he technical details in the proposed rules, we could incorporate any necessary changes into our existing rules, including any language regarding surface impoundments. However, we anticipate that the level of effort to modify our hazardous waste rules (NR 6 00 series) would entail considerably more workload than that needed to modify our solid waste rules (NR 500 series).

We anticipate that staff training and plan review workload with a RCRA Subtitle D alternative can be readily integrated into our existing staffing and management. Existing staff would need considerably more training to implement the procedural elements and specific details of the RCRA Subtitle C proposed rules. The WDNR Waste & Materials Management program has an experienced set of 18 engin eers and hydrogeologists, as well as several plan review experts and supervisors, to regulate 70 existing active landfills, including 11 CCR landfills. We do not have enough hazardous waste engineers and hydrogeologists to take on the CCR landfill work, so we would expect that solid waste staff would have to continue to be involved in such activities.463

WDNR staff have the technical capabilities and experience to effectively regulate CCR landfill under State rules. The technical requirements of either the R CRA Subtitle C or Subtitle D approaches are well within their capability. However, the additional procedural requirements in
the RCRA Subtitle C rule alternative would consume additional time and resources that are currently already stretched.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
Th e commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA exp ect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 80 

### Organization 1 

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

### Commenter 1 : Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: EPA could mitigate difficulties imposed by the proposed rules by seeking and obtaining authority to use an authorization process such as was used for the Part 258 MSW landfill rules, or to develop rules that utilize a coordinated approval process. Either approach would be able to take advantage of res ources that exist at the State agencies, including experienced staff, knowledge of the existing utility CCR disposal facilities and CCR generating facilities, an established review and permitting process, experience with facility design, familiarity with

e arthwork construction and materials commonly used in landfills, unique or modern construction materials such as geo synthetic clay liners, and local geology and hydrogeology.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste manage ment plans.464



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 94 

### Organization 1 

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

### Commenter 1 : Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 10.4.5 7.3.1 

### Comment Excerpt Text: Potential Impacts to Wisconsin’s Beneficial Use Program

- Obviously, the potential impact s to the beneficial use program will vary considerably depending on the final federal rule adopted. From a programmatic perspective, regulating CCR under RCRA Subtitle C would mean an extensive rewrite of both our ch NR 500 solid waste management series an d our ch. NR 600 hazardous waste management series of codes. This would involve a multi

- year effort resulting in significant expenditure of staff time and resources in an era of severe State budget shortfalls and staffing limitations. Regulation of CCR und er a Subtitle D would involve much less restructuring of administrative codes since regulation would still defer to State statutes and the ch. NR 600 series of codes would not have to be modified. Revisions would likely be limited to some new
restrictions on use and testing in s. NR 538 Wis. Adm. Code and some changes to WDNR’s landfill construction standards in s. NR 504, Wis. Adm. Code.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the pr eamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical standa rds the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

The commenter is also referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06446

- 14 

### Organization 1 

### : Hoosier Energy Rural Electric Cooperative (REC), Inc. 

### Commenter 1 : Michalene Reilly Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine C ontext Assigned/Due:



### Comment Excerpt Text: E. Subtitle D Requirements has more than a Sufficient Safety Factor for CCRs465

The Subtitle D requirements specified in the rule are the same as for municipal solid waste. It is
difficult to fathom that EPA would consider the hazards of CCRs to be anything comparable to municipal waste. Homeowners are allowed (though discouraged) from throwing anything they wish to discard into the waste that goes to these landfills. That list includes listed and
characteristic ha zardous wastes of all kinds including pesticides, mercury thermometers, pharmaceuticals, and household chemicals. It also is impossible to prevent liquids from being disposed of into the municipal landfill. Yet, EPA contends that these disposal units are s afely regulated.

In the case of a CCR facility, the wastes are homogeneous, state inspectors in Indiana visit our landfill regularly, and permit provisions require facilities to operate in a safe manner

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06446

- 15 

### Organization 1 

### : Hoosier Energy Rural Electric Cooperative (REC), Inc. 

### Commenter 1 : Michalene Reilly Commenter Type: Electric U tility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 8.4 

### Comment Excerpt Text: F. State Enforcement of CCR Regulations

Hoosier Energy is located in the State of Indiana which currently has a very vibrant and effective program for managing CCRs. Landfill design is based the risks posed by the level of constituents in the ash. In fact, a Type I facility has the same requirements as a municipal solid waste landfill. Landfill operators are required to certified and then receive annual training. Regular inspections include additional solid waste personnel (such as the permit manager, a representative from IDEMs engineering or geology section) during times of permitting or if there is an issue with the facility. Hoosier Energy supports state regulation of facilities by the individual states. If a state refuses to regulate, EPA can step in. However, adequate programs that are doing the job should not be usurped by federal regulation. It should b e noted that much of the evidence submitted against state regulation sites damage cases. Many of those cases come from facilities that were in place long before RCRA was even a law. In Indiana, many facilities were in place before the Department of Environ mental Management was created. To say that RCRA standards are required based on the standards of what was done in the 1980’s vs. how State’s have regulated CCRs in the last 5 years, appears to be arbitrary and lacking any kind of logic466

Response: The Agenc y acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commente r is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06723

- 19 

### Organization 1 

### : West Virginia Department of Environmental Protection (WVDEP) 

### Commenter 1 : Gary Casto on behalf of Randy C. Huffman Commen ter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1.2.4 

### Comment Excerpt Text: Since the 1970's impoundments have been regulated by the West Virginia Dam Safety Act which WVDEP administers. The design of each of the seven disposal surface impoundments referenced above was reviewed for structural stability and subsequently approved prior to their construction. WVDEP annually inspects each of the seven impoundments for structural stability. Please note that Subtitle D lacks a mechanism for the states to administer the proposed regulations. State regulatory programs that meet or exceed the proposed Subtitle D standards should be allowed to
administer the Subtitle D rules through state permit issuance.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is
also referred to Unit IX of th e preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06808

- 14 

### Organization 1 

### : New Mexico Environment Department (NMED) and Energy, Minerals and
Na tural Resources Department (EMNRD) 

### Commenter 1 : Bill Brancard Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:467

Furthermore, because CCRs are currently exempt from Subtitle D regulation in New Mexico, there is currently very limited potential for use of existing in

- state Subtitle D landfill capacity to accept these wastes. Much of the CCRs covered by the proposed rule will likely meet the definition of “ash” und er New Mexico’s solid waste rules, 20.9.2 NMAC. Three landfills are permitted to accept “ash” from industrial or other non

- power generating sources as a Subtitle D Special Waste. Two of the three landfills currently accept small quantities of “ash.” The th ird currently does not accept “ash.” Two of the three permitted landfills are small landfills located in rural areas. The large landfill that accepts “ash” is located in Rio Rancho, New Mexico, which is approximately 176 miles from the concentration of pow er

- generating plants near the Four Corners area of the state. Additionally, this facility is nearing capacity and the end of its permit
life.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06808

- 15 

### Organization 1 

### : New Mexico Environment Department (NMED) and Energy, Minerals and Natural Resources Department (EMNRD) 

### Commenter 1 : Bill Brancard Commenter Type: State Government Classification: Substantive Comment Category: Cu rrent Task: Examine Context Assigned/Due: Other Sections: 7.3.1 

### Comment Excerpt Text: Under either Subtitle C or Subtitle D, New Mexico would have to amend either the New Mexico Solid Waste Act or the Hazardous Waste Act and the implementing regulations. As a result, there is no significant time or resource advantage to either regulatory path. Under either option, facilities would continue to operate under an existing ground water discharge permit until the solid or hazardous waste statutes and regulation s could be changed. Under the RCRA Subtitle C option, facilities would become subject to RCRA interim status once New Mexico adopted appropriate rules, and would remain so until a RCRA permit was issued. While under interim status, facilities would be requ ired to retrofit surface impoundments to meet any new liner, leachate collection, and groundwater monitoring requirements. Because of limited capacity in current Subtitle D landfills in New Mexico, permit modification processes and siting and permitting ne w landfill facilities still would be necessary to meet the expected increased demand under the Subtitle D option.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is prom ulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.468



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06815

- 3 

### Organization 1 

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

### Commenter 1 : Liane J. Shekter Smith Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Additionally, any new regulations under Subtitle D should allow for a determination of existing state program adequacy similar to what is already provided for under the current Subtitle D program for municipal solid waste or sufficient time to amend state regulations so that a determination of state program adequacy can be obtained in order to implement any additional requirements as stated in the proposed rule. Enclosed please find our comments on specific questions raised in the proposed rule.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoun dments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on h ow EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06815

- 30 

### Organization 1 

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

### Commenter 1 : Liane J. Shekter Smith Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Michigan has an effective CCR regulatory program. The siting, construction, monitoring, operational, and cor rective action requirements have been shown to be adequate to protect human health and the environment. Many CCR disposal sites in Michigan began accepting waste prior to the effective date of state rules. Once the groundwater monitoring and corrective act ion requirements took effect, and the existing sites were evaluated, it was determined that many of the existing un

- lined sites had caused groundwater contamination. Eight former and existing disposal sites have been subject to corrective action. Of these, six have been closed and capped and two remain active and have cleanup plans in place.

There are currently nine active disposal sites in Michigan that accept 88 percent of CCR469

generated in the state. Combined, these disposal sites have approximately 62, 000,000 cubic yards of remaining permitted disposal capacity, or about 27 years of disposal capacity at current generation rates. Of these disposal sites, only one, with approximately 2,000,000 cubic yards of permitted capacity, would meet the proposed com posite liner design requirement. All of the remaining sites would be forced to close in the five to seven year window provided in the proposed rule. Since it is unlikely that all the associated public utilities would cease operation or
convert to other fue l stocks in the interim, this disposal capacity would need to be replaced. In the event that the Subtitle D option is implemented as written, the existing facilities would have to be replaced with newly permitted composite

- lined landfills.

The permitting process in Michigan includes several elements. Under current solid waste regulation, any proposed new landfill must demonstrate compliance with the Solid Waste Management Plan of the county in which the disposal area will be located. Of the eight landfill s that would be required to close, seven are located in counties that provide for the siting of new landfills within the county. The remaining county would allow the siting of a landfill, provided the community it is to be located in is willing to enter a Host Community Agreement. County Solid Waste Management Plans may be altered, but this process generally takes a minimum of one to two years. There is no statutory limit on the time frame that may be taken to amend a county plan or to obtain a determinatio n of consistency with the county plan, so the process may take more than the one to two year period. Once it has been determined that a landfill is consistent with the County Solid Waste Management Plan, the owner/operator of a proposed landfill may apply for a construction permit upon completion of a hydrogeological investigation of the proposed site and the preparation of other necessary permit application documents. Once an administratively complete permit application is received, the DNRE must make a de cision on the permit within 120 days. Given the uncertainties associated with the county

- planning· process, site investigatory work, and permit review, it is difficult to determine if adequate replacement disposal capacity for CCR could be available within the timeframes provided.

Michigan has approximately 430,000,000 cubic yards of existing permitted capacity available at 49 Subtitle D landfills located throughout the state. In

- state disposal of Michigan generated solid waste is prohibited in a county o ther than the county of generation unless it is reciprocally authorized per both the importing and exporting county Solid Waste Management Plans. These restrictions may limit access to existing permitted capacity in portions of the state.

It is likely th at, should the Subtitle D proposal be implemented, Michigan should have adequate disposal capacity available in the short term, and public utilities should have the ability to develop additional landfill capacity in the long

- term, although at additional ex pense over their current operations.

The DNRE has recently had to reduce staffing in the Subtitle D program due to funding constraints. It is likely that given these reductions, the need to complete consistency reviews, provide for public participation a nd technical reviews of an addition eight landfill construction permits would strain our existing resources and compromise our ability to run our program effectively.470

Response: The Agency acknowledges and appreciates the comment. The commenter is
referre d to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discu ssion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06816

- 5 

### Organization 1 

### : Phoenix Cement Company (PCC), Salt River and Rock, Salt River Materials Group 

### Commenter 1 : Roger R. Smith Commenter Type: Beneficial User Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 11.2.5 7.1 7.3.1 9.2.2.2 4.5 3.1.2 

### Comment Excerpt Text: PCC opposes any additional regulation of CCR. Arizona already has the appropriate regulatory framework in place to protect human health a nd the environment from CCR management units. The adoption of a new federal regulatory program would overlap with Arizona’s existing regulatory program, would not provide any additional protection to human health and the environment, but would simply requi re Arizona to expend already strained resources to amend its proven regulatory program to conform to an unproven federal regulatory program. Additionally, it would undermine our company and eliminate jobs in these already difficult
economic times. If EPA i nsists on further regulating CCR, it should be under a Subtitle D solid waste approach which will work in conjunction with existing state programs, not under Subtitle
C as a hazardous material.

Response: The Agency acknowledges and appreciates the commen t.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06844

- 5 

### Organization 1 

### : Intermountain Power Agency (IPA) 

### Commenter 1 : James A. Hewlett Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The Subtitle D proposal would give the EPA authority to set performance standards with a narrower scope that would be protective of the environment. The proposal should provide that States having comparable Subtitle D programs in place (e.g., the State of Utah) and, where471

sitespecific conditions warrant, take precedence over federal regulations including landfill permitting and groundwater monitoring and protection. Other State programs should similarly have precedence including State financial assurance programs and State self reporting requirements in lieu of company web based documentation. Subtitle D provisions would overlay State programs where such programs were not compliant. IPA believes this option provides for the safe management and disposal of CCR without imposing potentially prohibitive costs on IPA and the contemporaneous rate burden on our purchasers and the reduction in recycling opportunities of coal combustion by

- products if the materials are regulated u nder RCRA Subtitle
C.

IPA believes that regulating the CCR under Subtitle D will meet the intent and spirit of the federal RCRA statute of resource conservation through reduction, reuse, and recycling of
materials.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Un it VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

The commenter is also referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06846

- 6 

### Organization 1 

### : Florida Department of Environmental Protection (FDEP) 

### Commenter 1 : Richard B. Tedder on behalf Mary Jean Yon Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.3 7.1 

### Comment Excerpt Text: The Department believes, with its existing state laws, it is appropriately regulating the disposal of CCRs as solid wastes in Florida. In addition the Department intends to develop a new rule to update and consolidate our requirements for managing industrial wastes including CCRs. However, the Department has no fundamental objection to EPA regulating the disposal of CCRs as solid wastes under RCRA subtitle D (in particula r the D prime approach) provided sufficient flexibility is built into those regulations to recognize Florida's unique situation.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble d iscussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.47 2

The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

The commenter is also referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0 640

- 06863

- 10 

### Organization 1 

### : Avista Corp. 

### Commenter 1 : Darrell Soyars Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.2.2 

### Comment Excerpt Text: Avista believes that any final Subtitle D regulatory program for CCRs must include a mechanism for the administration and implementation of the rules by the states. As EPA itself has concluded, many states already have well

- established and protective regul atory controls for CCRs. Therefore, it makes sense to coordinate development of new federal rules for CCRs with existing state regulations. Failure to do so will result in redundant and potentially inconsistent regulations and would contravene the Bevill A mendment’s directive that, in developing federal regulations for CCRs, EPA avoid duplication of effort with pre

- existing regulatory programs.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: E PA

- HQ

- RCRA

- 2009

- 0640

- 06865

- 21 

### Organization 1 

### : Constellation Energy 

### Commenter 1 : Charlene Zaruba on behalf of Paul Allen Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The liner systems for base liner systems and closures should be allowed to match the municipal473

landfill regulations of individual states. There has been over 17 years of experience and research on the appropriate liner systems under S ubtitle D for individual states that can accommodate the variations in groundwater depth, the availability of clay, and the amount of precipitation per year (arid climates) that has been backed up with monitoring data that shows proper performance.
Liner s ystems and covers for CCR can be matched to the requirements of municipal landfills in
individual states as there is less risk associated with the non

- biodegradable nature of CCRs and minimal potential for landfill gas

Response: The Agency acknowledges an d appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 1 

### Organization 1 

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

### Commenter 1 : David B. Haldeman Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 

### Comment Excerpt Text: The proposed regulations have the potential to significantly impact NDEQ's existing CCR permitting and management program depending on the regulatory approach EPA pursues in its
final rule.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussi on for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 24 

### Organization 1 

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

### Commenter 1 : David B. Haldeman Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:474



### Com ment Excerpt Text: Nebraska’s regulations for CCR management are contained in Title 132

– Nebraska Integrated Solid Waste Management Regulations. Nebraska has been implementing these regulations for nearly 17 years. New federal rules for management of CCR under Subtitle D would probably require some rule making changes to Title 132 involving some extra expenditure of resources, but could probably be absorbed by the existing program. Adopting flexibility in the federal rules under a Subtitle D approach simil ar to the flexibility provided for in the federal MSWLF rules under 40CFR Part 258 would help to mitigate these problems.

Nebraska utilizes Title 118

– Ground Water Quality Standards and Use Classification to address corrective action at landfills, and fo r all other point source pollution occurrences. Appended to Title 118 is Appendix A, Ground Water Remediation Protocol. This appendix prescribes an eleven step process that NDEQ follows to investigate a site and make corrective action decisions. When NDEQ went through the program approval process for its municipal solid waste landfill permit program under Subtitle D, Title 118 was found to be equivalent to the corrective action process laid out under 40CFR Part 258 for municipal solid waste landfills even t hough the regulations were not the same. If EPA adopts a prescriptive approach in performing corrective action without any allowance for flexibility, adopting the program would create procedural difficulties. Adopting flexibility for states that have permi t programs for CCR landfills or other regulatory structure to address corrective action at CCR landfills would help mitigate the procedural difficulties.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 39 

### Organization 1 

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

### Commenter 1 : David B. Haldeman Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.4.7.1 

### Comment Excerpt Text: NDEQ’s corrective action requirements are contained in Title 118 Ground Water Standards and Use Classification and do not mirror the requirements found in 40CFR Part 258 or those in EPA’s propos ed rule. However, during the program approval process of NDEQ’s municipal solid waste landfill permit program EPA determined that NDEQ’s corrective action requirements contained in Title 118 were equivalent to 40CFR Part 258, and NDEQ’s municipal solid was te landfill permit program was subsequently approved. NDEQ encourages EPA to allow flexibility475

to states with different regulatory approaches for ground water protection and corrective action to utilize their existing regulatory structure. To establish dif ferent standards for municipal solid waste landfills and CCR landfills would create inconsistency in policy and would be a burden on state programs (to have to create and implement a separate set of standards.)

Response: The Agency acknowledges and appre ciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

The commenter is also referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a complete discussi on of the beneficial use aspects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07786

- 7 

### Organization 1 

### : Nevada Department of Conservation and Natural Resources, Nevada Division of Environmerital Protection (NDEP) 

### Commenter 1 : Collen Cripps Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 4.5 

### Comment Excerpt Text: While we strongly oppose the regulation of CCR as hazardous waste under RCRA Subtitle C or

a s nonhazardous waste under RCRA Subtitle D, if EPA decides to change the Subtitle listing of CCR, Nevada respectfully requests that the procedures for authorizing Nevada's program to implement any new and additional CCR rules be streamlined and designed to operate in harmony with the existing Subtitle D program authorization procedures. Deference should be given to Nevada's program in the authorization process as it is consistent with, and no less stringent than, the federal regulations. Moreover, any new C CR rules and regulations should be treated as an amendment to Nevada's existing Subtitle D program authorization rather than imposing new CCR rules and regulation as separate and distinct from Nevada's authorization.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.476

The commenter is also referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit s IV and VI for a complete discussion of the beneficial use aspects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07793

- 6 

### Organization 1 

### : South Dakota Department of Environmental and Natural Resources 

### Commenter 1 : Vonni Kallemeyn Commenter Type: Stat e Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: It will take some additional time and resources to regulate CCR as a solid waste as well under Subtitle D, however it will be much less of a financial/employee impact. The solid waste program is a permit driven program versus our hazardous waste program is an inspection and enforcement driven program in this state.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state sol id waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 10 

### Organization 1 

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

### Commenter 1 : Shari T. Wilson Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.2.3.1 4.2.2 4.5 

### Comment Excerpt Text: For these reasons, Maryland suggests a system like that used for municipal solid wastes under 40 CFR 258, where States must integrate the federal standards into t he State program and seek program approval from EPA under 40 CFR 239. This eliminates duplicative requirements and allows States to provide detailed technical review by hydrogeologists and engineers of their solid and industrial waste permitting units to p roposed CCR disposal facilities, to ensure that these units are safely designed and operated. This is much more desirable than relying on third

- party certifications by consultants as would be the case under the proposed RCRA D option, whom may not as full y cognizant of the geotechnical conditions that exist in any given area, or be as familiar with the historical operating conditions at a particular site.477

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of th e technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 23 

### Organization 1 

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

### Commenter 1 : Shari T. Wilson Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.2.2 4.2.3.1 4.5 

### Comment Excerpt Text: Maryland suggests a system like that used for municipal solid wastes under 40 CFR 258, where States must integrate the federal standards into the State program and seek program approva l from EPA under 40 CFR 239. This eliminates duplicative requirements, and allows the States to provide detailed technical review by hydrogeologists and engineers of their solid and industrial waste permitting units to proposed CCR disposal facilities, to insure that these units are safely designed and operated. This is much more desirable than relying on third

- party certifications by consultants, as would be the case under the proposed RCRA D option, whom may not be as fully cognizant of the geotechnical conditions that exist in any given area, or be as familiar with the historical operating conditions at a particular site.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussi on for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 24 

### Organization 1 

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

### Commenter 1 : Shari T. Wilson Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Section s: 4.2.2 3.5.2.2478



### Comment Excerpt Text: It is also more desirable than the excessive requirements of the RCRA C approach, which, particularly with respect to the manifesting requirement, do not add any additional level of safety at all while adding a treme ndous burden to both the haulers and the States.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 26 

### Organization 1 

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

### Commenter 1 : Shari T. Wilson Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.4.7.2 4.4.7.4 

### Comment Excerpt Text: Also, EPA’s choice not to allow the States to evaluate and approve enhanceme nts to important elements such as the liner design and groundwater monitoring system, as is the case under the 40 CFR 258 regulations, makes this a risky proposal. The inability of the States to specify more stringent monitoring requirements under the fede ral rule, such as more monitoring wells than just one upgradient and three down, has two negative effects: First, it weakens state enforcement under its own rules because it provides the defense that “the federal rule doesn’t require more than 4 monitoring wells, so why is the State doing so?” and secondly, requires states to have duplicative rules to provide them with that authority, making it difficult for operators, who won’t have just one set of applicable rules to follow. We understand that EPA does no t wish to allow states to reduce monitoring parameters. However, we believe that EPA could change the rule to allow groundwater monitoring plans approved by the States as long as they are at least as stringent as required under the proposed rule.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoun dments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on h ow EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 49 

### Organization 1 

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

### Commenter 1 : Shari T. Wilson Commenter Type: State Gover nment Classification: Substantive Comment Category:479

Current Task: Examine Context Assigned/Due: Other Sections: 4.2.2 4.2.3.1 3.1.2 4.5 

### Comment Excerpt Text: For the many reasons expressed herein, MDE does not favor regulation under RCRA C, or 40
CFR 257 as proposed. The Department recommends a system like that used for municipal solid wastes under 40 CFR 258, where States must integrate the federal standards into their program and seek program approval from EPA under 40 CFR 239. This would eliminate t he potential for State and federal regulators to work at cross purposes, and facilitate compliance. It would also allow the States to provide detailed technical review by hydrogeologists and engineers from the solid and industrial waste permitting units to proposed CCR disposal facilities, to ensure that these units are safely designed and operated. This is much more desirable than relying on third

party certifications by consultants whom may not as fully cognizant of the geotechnical
conditions that exist in any given area, or be as familiar with the historical operating conditions at a particular site, as State government scientists whom work in the area full

- time.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 78 

### Organization 1 

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

### Commenter 1 : Shari T. Wilson Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: the CFR257 option would be very disruptive and less protective than the current State regulations.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 8 

### Organization 1 

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

### Commenter 1 : Shari T. Wilson Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.4.2.2 

### Comment Excerpt Text: EPA’s proposal to regulate the CCRs under 40 CFR 257, the Open Dump regulations, raises concerns about implementation and regulation. First, this proposal does not allow the States to evaluate and approve enhancements to important technical elements such as the liner design and480

groundwa ter monitoring system, as is the case under the 40 CFR 258 regulations. The inability of the States to specify more stringent monitoring requirements under the federal rule, such as additional monitoring wells beyond 4 wells, weakens state ability to enfor ce additional requirements when technically justified and requires states to put duplicative rules in place making compliance for operators more difficult.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Unit s IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### ______ _______________________________________________________________ Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 9 

### Organization 1 

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

### Commenter 1 : Shari T. Wilson Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.2.6 

### Comment Excerpt Text:
The use of self

- implementing rules raises compliance concerns and will lead to a dual regulatory system in those states, including Ma ryland, that have implemented more comprehensive requirements.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtit le D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08266

- 5 

### Organization 1 

### : West Associates 

### Commenter 1 : A. Gwen Ekund on behalf of Starla Lacy Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:481



### Comment Excerpt Text: A suggestion for improvement of the Subtitle D “Prime” option would b e the ability for qualified state programs to directly administer the federal Subtitle D regulations for CCR when the state program meets or exceeds the federal controls. This action would minimize duplication of effort by state and federal agencies and al low qualified state programs to administer the rules instead of
the self

- implementing approach contained in EPA’s proposal. The states, in turn, can develop their own permitting programs for these CCR disposal units including CCR landfills and CCR
surface impoundments. Further, if certain CCR surface impoundments cannot operate in an environmentally sound manner, then closure can be conducted under a State approved program within a reasonable timeframe determined specific to the individual project. Many wes tern utilities manage CCR as dry ash and the geology in the western US provides a measure of protection, depending on the area, with natural bedrock geology. WEST has appended a letter sent from Western Governors’ Association on March 5, 2010 to the Honora ble Lisa Jackson, Administrator of U.S. EPA, which is consistent with WEST recommendations regarding CCR in
the western U.S.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discu ssion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agen cy is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08787

- 29 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Stephen A. Cobb (Al) Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Exami ne Context Assigned/Due: Other Sections: 7.3.1 

### Comment Excerpt Text: Responses to a State survey begin to quantify the amount of funding that would be needed for each proposal. Contrasting the estimated resource needs for Subtitle C versus Subtitle D

pro grams also illustrates that the latter is a better use of resources.

Based on responses from 35 States, it is estimated that over 150 additional FTEs would be needed just for permitting. If the annual cost of one FTE for salary, fringe benefits, and over head is approximately $100,000, the additional personnel costs for Subtitle C permitting for 35 States alone could exceed $15 million. Additional expenditures would be needed for personnel inspecting the facilities and enforcing the permits.482

There were 2 2 States that were able to estimate the number of FTEs for the Subtitle C option versus the Subtitle D option. The 22 States estimated that an additional 116 FTEs would be needed to process original RCRA C permit(s) (operating and/or closure

-- post

- closur e) compared to an additional 62 FTEs that would be needed to permit Subtitle D facilities. Based on these estimates, the Subtitle C option could cost twice as much as the Subtitle D option, $12 million versus $6 million respectively.

Funding for training would be needed, particularly for staff processing original installation permits for new RCRA C hazardous waste facilities. Only a few States have issued an original installation permit since 1990. Of the 38 staff that States identified as having experien ce processing original Subtitle C installation permits, 23 are eligible to retire in 5 years. The point is that training costs would have to be factored into STAG funding needs.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08787

- 31 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Stephen A. Cobb (Al) Commenter Type: State Government Classification: Substantive Comment Category: Current Tas k: Examine Context Assigned/Due: Other Sections: 4.2.4 

### Comment Excerpt Text: The EPA proposal identifies the adequacy of State programs as a central issue in selection of an option. A common theme throughout the proposal is that the lack of "federal over sight of State programs" is a "disadvantage to any approach under RCRA Subtitle D." The EPA proposal notes that Subtitle D is implemented by the States and "EPA may act only if the handling, storage, treatment, transportation, or disposal of such wastes ma y present an imminent and substantial endangerment to health or the environment (RCRA 7003)." The implication is that State Subtitle D programs are inadequate, but EPA presents no evidence to support this presumption.

Since enactment of the 1979 federal Subtitle D regulations, 40 CFR part 257 Criteria for Classification of Solid Waste Disposal Facilities and Practices has established the minimum national performance standards necessary to ensure that "no reasonable probability of adverse
effects on health or the environment" would result from solid waste disposal facilities or practices. States either already had existing State requirements or voluntarily adopted rules that meet or exceed the Subtitle D national performance standards. When State regulators were recently asked whether existing State standards/regulations for non

- MSW facilities are mostly compatible with or more stringent than the existing Part 257 minimum standards, 47 out of 47 States responded "yes".

Response: The Agency acknowledges and appreciates the comment.483



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08787

- 32 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Stephen A. Cobb (Al) Commenter Type: State Go vernment Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.2.1 

### Comment Excerpt Text: EPA's proposal raises concerns regarding the reliance of RCRA Subtitle D on citizen suit enforcement authority given that States are not required to adopt the federal minimum standards into State regulations. EPA's concerns should consider that a number of State programs already have enforceable State requirements that meet or exceed many of the proposed CCR federal minimum standards. Also, the history of 40 CFR part 257 demonstrates that many States would voluntarily establish compatible State regulations. Specific to a citizen suit under the CCR proposal, the proposed RCRA Subtitle D requirements are clear and unambiguous. The requirements that owners or operators of CCR disposal facilities maintain independently reviewed documentation of compliance on pub lically available web sites and provide notice to the State environmental agency ensures public access. These requirements establish a substantial basis for both citizens and those States without equivalent State requirements to successfully
enforce under RCRA citizen suit authority. This is much improved over the existing 40 CFR part 257 Criteria for Classification of Solid Waste Disposal Facilities and Practices. Unlike the existing 40 CFR part 257 requirements, which are too ambiguous and do not require the owner or operator to document compliance, the proposed RCRA Subtitle D rules are actually useful towards developing a citizen suit.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the pr eamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical standa rds the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08787

- 35 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Stephen A. Cobb (Al) Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:484



### Comment Excerpt Text: Based upon the history of implementation of the solid waste program, upon adoption under Subtitle D, national CCR standards would be established quickly and nationwide, allowing States
to continue enfo rcement under their State regulations with the ability to file citizen suits where State enforcement authority is limited. EPA should work directly with those States with limited State enforcement to support those States' voluntary enactment of authority a nd adoption of compatible enforceable State requirements.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is
al so referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08787

- 37 

### Organization 1 

### : Association of State and Territorial Sol id Waste Management Officials (ASTSWMO) 

### Commenter 1 : Stephen A. Cobb (Al) Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: 1. As currently proposed, an owner or operator of a CCR disposal facility would need to fully comply with both the self

- implementing national minimum CCR disposal standards and existing State requirements. This appears to be true even if the State requirem ents meet or exceed the
self

- implementing national minimum CCR disposal standards. In such a circumstance, EPA should establish some process to address conflicts between the federal minimum standard and a more protective or regionally appropriate State sta ndard.

2. Many States wonder if EPA would establish a mechanism by which EPA acknowledges a demonstration that a State permit program meets or exceeds the federal minimum CCR standards. Such mechanism should accommodate regionally appropriate State stand ards.

3. EPA should clarify that the proposed CCR regulations do not apply to any State permitted MSW landfill that has previously accepted or may accept CCR. While most CCR are currently disposed at electric utility owned CCR disposal sites, there is no prohibition against CCR being disposed in State permitted MSW landfills. A reading of the current CCR regulations under the Subtitle D approach would require that a State permitted MSW landfill that has previously disposed or may dispose of any quantity o f CCR would be fully subject to duplicative requirements with the additional burden of posting documentation on a website, having an485

independent professional review certification, etc. EPA should facilitate this disposal option by clarifying that the propo sed CCR regulations are not applicable to any State permitted MSW landfills. The suggested clarification would also help with use of State permitted MSW landfills as interim CCR disposal capacity as utilities seek to close, upgrade, or develop their own

co mpliant CCR disposal sites.

Response: The Agency acknowledges and appreciates the comment



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08854

- 1 

### Organization 1 

### : Environmental Council of the States (ECOS) 

### Commenter 1 : R. Steven Brown Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 4.1.1 

### Comment Excerpt Text:
ECOS is the non

- profit, non

- partisan association of state and territorial environmental
commiss ioners. The association's position on the regulation of CCR is articulated in Resolution
08

- 14, adopted on September 22, 2008 and revised on March 23, 2010, entitled, "The Regulation of Coal Combustion Products" (see Appendix 1).

In the resolution, ECOS calls upon the U.S. Environmental Protection Agency (EPA) to conclude that additional federal CCR regulations would be duplicative of most state programs, are unnecessary, and should not be adopted, but if adopted must be developed under Subtitle D
rather than Subtitle C of the Resource Conservation and Recovery Act (RCRA).

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the comm enter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08854

- 6 

### Organization 1 

### : Environmental Council of the S tates (ECOS) 

### Commenter 1 : R. Steven Brown Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 4.1.1 7.1 

### Comment Excerpt Text:486

Resolution Number 08

- 14 Approved September 22, 2008 Branson, Missouri Revised March 23, 2010 Sausalito, California As certified by R. Steven Brown Executive Director

THE REGULATION OF COAL COMBUSTION PRODUCTS

WHEREAS, The 1980 Bevill Amendment to the Resource Conservation and Recovery Act (RCRA) requires the U.S. Environmental Protection Agency (U.S. EPA) to "conduct a detailed and comprehensive study and submit a report" to U.S. Congress on the "adverse effects on human health and the environment, if any, of the disposal and utilization" of fly ash, bottom ash, slag, flue gas emission control wastes, and other byproducts from the combustion of coal and other fossil fuels and "to consider actions of state and other federal agencies with a view to
avoid ing duplication of effort;" and

WHEREAS, U.S. EPA conducted the comprehensive study required by the Bevill Amendment and reported its findings to U.S. Congress on March 8, 1988 and on March 31, 1999, and in both Reports that recommended that coal combust ion wastes (CCW) not be regulated as hazardous waste under RCRA Subtitle C; and

WHEREAS, on August 9, 1993, U.S. EPA published a regulatory determination that regulation of the four large volume coal combustion wastes (fly ash, bottom ash, boiler slag, a nd flue gas emission control waste) as hazardous waste under RCRA Subtitle C is "unwarranted;" and

WHEREAS, on May 22, 2000, U.S. EPA published a final regulatory determination that fossil fuel combustion wastes, including coal combustion wastes, "do not warrant regulation [as hazardous waste] under Subtitle C of RCRA," and that "the regulatory infrastructure is generally in place at the state level to ensure adequate management of these wastes;" and

WHEREAS, U.S. EPA is under no statutory obligation to promulgate federal regulations applicable to CCW disposal following the regulatory determination that hazardous waste regulation of CCW disposal is not warranted, and throughout the entire Bevill regulatory process, CCW disposal has remained a state regul atory responsibility and the states have developed and implemented robust regulatory programs tailored to the wide

- ranging circumstances of CCW management throughout the country; and

WHEREAS, in 2005, U.S. EPA and the U.S. Department of Energy published a study of CCW disposal facilities constructed or expanded since 1994 and evolving state regulatory programs that found: state CCW regulatory requirements have become more stringent in recent years, the vast majority of new and expanded CCW disposal facili ties have state

- of

- the

- art environmental controls, and deviations from state regulatory requirements were being granted only on the basis of sound technical criteria; and

WHEREAS, the states have demonstrated a continuing commitment to ensure proper

mana gement of CCWs and several states have announced proposals for revising and upgrading their state CCW regulatory programs.487

NOW, THEREFORE BE IT RESOLVED THAT THE ENVIRONMENTAL COUNCIL OF
THE STATES:

Agrees with U.S. EPA's repeated assessments in 1988, 1993, 1999, 2000, and 2005 that CCW disposal does not warrant regulation as hazardous wastes under RCRA Subtitle C;

Agrees with U.S. EPA's finding in the 2005 study previously cited that "the regulatory infrastructure is generally in place at the state l evel to ensure adequate management of these wastes" and believes that states should continue to be the principal regulatory authority for regulating CCW as they are best suited to develop and implement CCW regulatory programs tailored to specific climate a nd geological conditions designed to protect human health and the environment;

Supports safe, beneficial reuse of CCW, including for geotechnical and civil engineering

purposes;

Believes that the adoption and implementation of a federal CCW regulatory program would create an additional level of oversight that is not warranted, duplicate existing state regulatory programs, and require additional resources to revise or amend existing state programs to conform to new federal regulatory programs and to seek U.S. EPA program approval;

Believes that if U.S. EPA promulgates a federal regulatory program for state CCW waste management programs, the regulations must be developed under RCRA Subtitle D rather than RCRA Subtitle C;

Believes that designating CCW a hazardous waste under RCRA Subtitle C could create stigma and liability concerns that could impact the beneficial use of CCW; and

Therefore calls upon U.S. EPA to conclude that additional federal CCW regulations would be duplicative of most state progra ms, are unnecessary, and should not be adopted, but if adopted must be developed under RCRA Subtitle D rather than RCRA Subtitle C, and in addition, urges U.S. EPA to make a timely decision, and calls upon U.S. EPA to begin a collaborative dialogue
with th e states to develop and promote a national framework for beneficial use of CCW including use principles and guidelines, and to accelerate the development of markets for this
material.

R esponse: The Agency acknowledges and appreciates the comment. The c ommenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a pre sentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid was te management plans.

The commenter is also referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a488

complete discussion of the beneficial use a spects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09237

- 8 

### Organization 1 

### : Ohio Coal Association 

### Commenter 1 : Michael T.W. Carey Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 9.2.1 9.3.2 4.1.2 

### Comment Excerpt Text: Regulation of CCR under Subtitle D of RCRA is also Unsuitable.

EPA has also proposed CCR be regulated as a solid waste under Subtitle D of RCRA. This option, while less egregious tha n regulation under Subtitle C, is still unsuitable and intrudes on the flexibility of the states to continue to manage CCR under state law structures. With respect to costs, as EPA itself acknowledges, the costs of regulatory compliance under Subtitle D ru n well into the billions of dollars. 75 Fed. Reg. 35128, 35216

- 35218. EPA attempts to mitigate the costs of compliance by arguing that the benefits of increased regulation include the reduced costs
associated with the clean

- up of a catastrophic failure of a CCR impoundment. However, EPA itself acknowledges that it has received comments contesting the estimates used by the Agency to calculate this particular "regulatory benefit." 75 Fed. Reg. 35147

- 35148. Ohio Coal also contends that the Agency has underesti mated the costs of these regulations because these cost figures fail to take into account the cost that state environmental protection agencies will incur in monitoring and administering a new RCRA regulatory program. Additionally, EPA proposes to
restrict state flexibility by imposing one

- size fits all requirements. For instance, EPA's proposed rules will require particular groundwater monitoring standards and prohibit states from establishing alternatives, as is commonly allowed with Subtitle D disposal f acilities. 75 Fed. Reg. 35128, 35205. Regulation of CCR under Subtitle D also packs the double

- punch of reduced state flexibility along with increased costs of compliance as well as regulatory oversight. Thus, EPA proposes to increase costs while failing t o demonstrate the factual and scientific benefits resulting from proposed regulation under Subtitle D of RCRA.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09273

- 4 

### Organization 1 

### : Iowa Department of Natural Resources (IDNR) 

### Commenter 1 : Wayne Gieselman Commenter Type: State Government489

Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The Agency put forth two divergent approaches, which has substantially complicated this rulemaking process, as well as making it extremely di fficult to provide detailed comments on these differing approaches. Due to the level of revision we see as necessary to make either approach practicable, and the likelihood that it will take several years before any federal regulation would become effectiv e, the IDNR has decided to resume its prior rulemaking effort to put forth an appropriate Subtitle D regulation for CCR. The IDNR respectfully requests EPA implement clear federal standards under Subtitle D that all states could implement that would not
du plicate existing state controls, as this would be a far more effective and appropriate policy for the management of CCR.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussi on for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 19 

### Organization 1 

### : Virginia Department of Environmental Quality 

### Commenter 1 : Jeffery A. Steers Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Ex cerpt Text: The Subtitle D proposal, while infinitely more reasonable then the Subtitle C proposal, is not without concern. The main concern is the lack of flexibility and the budget impacts to implement this program if this Subtitle D option is pursued. T he proposed regulations do not provide states with enough flexibility regarding CCR management or disposal options. Additionally, states seeking approval of their CCR program will have to consider the impacts to their budgets due to the regulatory and perm itting burden that will ensue. These budgetary impacts, while considerably less than those under the Subtitle C option, are still significant especially during this time of shrinking state funds and, therefore, cannot be ignored. These costs must be
consid ered and Virginia DEQ recommends that EPA more fully evaluate these impacts and consider the work done by EPA and ECOS on the cost of rules implementation.490

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of t he technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 2 

### Organization 1 

### : Virginia Department of Environmental Quality 

### Commenter 1 : Jeffery A. Steers Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Du e: Other Sections: 7.3.1 

### Comment Excerpt Text: As proposed, these regulations will significantly impact the Commonwealth of Virginia in many ways regardless of whether EPA decides to regulate CCR disposal under either Subtitle C or Subtitle D. Therefore, if this regulatory action is pursued, Virginia DEQ recommends that changes to both of the proposed options are necessary to avoid unintended adverse impacts to our state's regulatory programs, private businesses, and human health and the environment.

Res ponse: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundme nts. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 56 

### Organization 1 

### : Virginia Department of Environmental Quality 

### Commenter 1 : Jeffery A. Steers Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.6.1.4 4.6.1.5 

### Comment Excerpt Text: Five years is the minimum amount of time for Virginia DEQ to implement the rulemaking

proce ss to amend our regulations, receive permit applications, review permit applications for new CCR landfills that meet the standards of the Subtitle D proposal, and issue permits for these491

landfills. EPA would have to commit staff to approve the CCR permit p rogram, however, if the MSW program is to be utilized as a model. Approvals of state permit programs would need to be completed within 18 months after the effective date of the rule so that adequate time can be allowed for the permit application process.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoun dments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on h ow EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 61 

### Organization 1 

### : Virginia Department of Environmental Quality 

### Commenter 1 : Jeffery A. Steers Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Subtitle D option: Under the Subtitle D proposal, the minimum federal criteria would take effect within 180 days after prom ulgation of the final rule. Virginia DEQ would likely need to undertake a rulemaking to revise our regulations for CCR landfill requirements and surface impoundments to be consistent with EPA's promulgated regulatory requirements. While EPA's
minimum Subti tle D standards include many selfregulating provisions, Virginia DEQ would likely implement and oversee these facilities directly through regulation as we do for the municipal solid waste landfill provisions under 40 CFR 258. In general, the full regulator y process in Virginia takes almost two years to complete and, therefore, Virginia DEQ would need additional time to incorporate these requirements into current regulations before a CCR program could be implemented. Funding for this expanded CCR program wil l also be a barrier to implementation, as Virginia DEQ has had numerous budget cuts in the last few years. Federal funding for this program and more time to allow the states to undertake regulatory action and to implement the program will be necessary.

Re sponse: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundm ents. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.492



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 7 

### Organization 1 

### : Virginia Department of Environmental Quality 

### Commenter 1 : Jeffery A. Steers Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Virginia DEQ does not fully support EPA's proposal to regulate CCRs under the authorities of
RCRA Subtitle D. While the Sub title D regulatory approach is greatly preferred over the Subtitle C proposal, there are issues that need further consideration if the Subtitle D approach is pursued by EPA. The general concern is that the proposed regulations do not provide states with en ough flexibility regarding CCR management or disposal options. Many states, like Virginia, have a long history of dealing with industrial solid waste. TThe regulations need to be flexible enough to allow states to use equivalent alternatives rather than a specific "standard" as necessary and appropriate. This would include allowing states to evaluate and approve alternate liner and cover designs. The prescriptive one

- size

- fits

- all approach is overly burdensome and unnecessary in
areas where local conditions provide an equivalent degree of protection.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 3 

### Organization 1 

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

### Commenter 1 : Benjamin H. Grumbles Commenter Type: State Gover nment Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 

### Comment Excerpt Text: As stated in ADEQ's June 29, 2009 letter to EPA, Arizona already has the appropriate regulatory framework in plac e to protect human health and the environment from CCR management units. The adoption of a new federal regulatory program would overlap with Arizona's existing regulatory program. A new federal program would require Arizona to expend already strained

resou rces to amend its proven state program to conform to a largely unnecessary and unproven federal regulatory program.493

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 32 

### Organization 1 

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

### Commenter 1 : Benjamin H. Grumbles Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.4.7 

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

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the pr eamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical standa rds the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 39 

### Organization 1 

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

### Commenter 1 : Benjamin H. Grumbles Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.4.7.1 7.1.1.3 7.1.2.5 

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

- 9

- A204 r equires that all individual Aquifer Protection Permits have a contingency plan for
corrective action. A.A.C. R18

- 9

- A204(B)(8) describes potential corrective actions that may be494

required by the ADEQ Director on a facility

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

- specific cleanup provisions rather than prescriptive cleanups, po tential cleanup issues are already addressed by state law. ADEQ also has authority under A.R.S. § 49

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

- ordered cleanups have occurred.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion f or the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is p romulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 0935 8

- 4 

### Organization 1 

### : Interstate Power and Light Company (IPL) and Wisconsin Power and Light Company (WPL) 

### Commenter 1 : Kathleen A. Lipp Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: 4. A shortcoming of the proposed Subtitle D option is the lack of a provision for state regulatory agencies to incorporate the proposed EPA Subtitle D CCR regulations into qualified state regulatory programs with state regulatory enforcement authority. The exclusion of qualified state programs makes no practical sense and will result in parallel and redundant regulatory programs. The final Subtitle D rules for CCRs should include a mechanism for qualified state programs meeting the federal Subtitle D CCR standards to be administered and enforced by state regulatory agencies. EPA could develop a process for evaluating state CCR controls and determining that state controls are no less stringent than the final Subtitle D co ntrols in a similar manner to how EPA currently reviews and approves state programs for municipal solid waste landfills under Subtitle D. EPA would allow the states meeting these CCR management standards to administer the controls to avoid the duplication of regulatory programs, with the added benefit of eliminating many of the burdensome and confusing self

- implementing495

procedures currently reflected in the proposed RCRA Subtitle D approach; the state regulatory agency would have responsibility for ensuring compliance with the applicable requirements. As noted above, the current Wisconsin CCR regulations administered by the WDNR already incorporate the majority of the proposed RCRA Subtitle D requirements, with the exception of requiring lined surface impoun dments ... and these missing elements could be easily incorporated. Hence, Wisconsin could easily implement a CCR management program under Subtitle D that would fully meet EPA objectives. There is no reason similar programs could not be developed and imple mented in all remaining states.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CC R in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is
also referred to Unit IX of t he preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10632_DC

- 047

- 4 

### Organization 1 

### : Virginia Department of Environmental Quality 

### Commenter 1 : Jeffery Steers Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 

### Comment Excerpt Text:

- Both options presented by EPA will have an impact to already strained state budgets. Virginia has projected that under the Subtitle C option, an additional $350,000 per year will be needed to properly implement the program; under the Subtitle D option, an additional $76,000 per year will
be needed. The costs of rules cannot be ignored by proposing states implement or increase fees. EPA needs to ensure that the rules adopted are protective and avoid unnecessarily and unjustifiably high costs to states and society.

Response: The Agency acknowledges and appreciates the comme nt. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0228

- 7 

### Organization 1 

### : Virginia Department of Environmental Quality (DEQ)496



### Commenter 1 : Jeffery Steers Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 7.1.1 

### Comment Excerpt Text: As detailed above, Virginia’s regulatory requirements for industrial landfills and the required permitting process are comprehensive. Our regulations have chang ed and strengthened since their initial adoption over 40 years ago. These regulations exceed current federal requirements which are under 40CFR257. It is with that reasoning, the DEQ continues to believe that our program is more than adequate to protect hu man health and the environment and that further federal regulation of this program will provide little to no protective benefit but will unnecessarily further strain state budgets.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0238

- 12 

### Organization 1 

### : Southern Company 

### Commenter 1 : Chris Hobson Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 9.3.7 

### Comment Excerpt Text: 3. Cost Estimates of Subtitle D Regulation

The NGOs claim that “EPA greatly overestimated the regulatory requirements of many states” and that EPA “estimate[d] that far more states will improve their state programs under a subtitle D rule.” The NGOs also state:

EPA’s method of determining which s tates will adopt subtitle D regulations relies on the agency’s interpretation of state law. . . . [B]y misinterpreting state regulatory requirements, EPA estimates that far more states will improve their state programs under a subtitle D rule. Because
EPA proceeds to assign costs and benefits based on this over

- optimistic calculation, the Agency assigns considerably more health and environmental benefits to state regulation pursuant to subtitle D option than is appropriate. [Footnote 39: NGO Comments, supra note 20, at 46.]497

First, that position is unfounded because, as discussed above, states’ current regulation of CCBs is not determinative as to whether states will adopt Subtitle D regulation if EPA ultimately adopts a Subtitle D regulatory program. Secon d, Southern Company emphasizes that, contrary to the NGOs’ position, in its 2010 proposed rule EPA drastically underestimated the costs associated with Subtitle D regulation. The engineering requirements between Subtitle C and Subtitle D regulation are nea rly identical. While the additional, Subtitle C requirements are extremely costly, EPA’s predicted cost estimates are grossly underestimated. For example, EPA estimates that for the entire industry, the cost of implementing EPA’s Subtitle D regulatory

prog ram across the entire system would cost $587 million for the next 50 years, [Footnote 40: 75 Fed. Reg. 35213.] while Southern Company alone estimates [Footnote 41: Southern Company’s estimates are pre

- screening cost estimates, as distinct from cost estimat es for projects that are more definite as to the elements and timing of execution.] that implementing the Subtitle D regulatory program across the entire system would cost approximately between $9 and $15
billion.

Third, Southern Company reaffirms its po sition that although Southern Company believes no Federal regulation of CCBs is warranted, states would operate a robust CCB regulatory program under the Subtitle D option, including the D Prime alternative. Such a program would be most

cost

- effective for states and industry, while still providing the same engineering and human health protections as a Subtitle C regulatory program.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

The commenter is also referred t o Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 201 1

- 0392

- 0255

- 10 

### Organization 1 

### : North Dakota Department of Health 

### Commenter 1 : Scott Radig Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1 7.3.1 

### Comment Excerpt Text: We believe our solid waste rules provide a sound framework for effective regulation. North Dakota works to ensure that each solid waste structure for CCRs is effectively regulated and498

constructed in accordance with generally accepted engineering and environmental standards for structural integrity and waste containment. If structures are found to be deficient, such structures will be corrected or closed. The existing North Dakota solid waste rules and permit process have been proven to be protective a nd provide the most expedient method for addressing environmental protection and mitigation issues. EPA should defer to state programs with proven track records where the state has better knowledge of local conditions.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred t o Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 12 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Ed Thamke Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1 

### Comment Excerpt Text: Earthjustice Prediction of States That Will Not Adopt Subtitle D Criteria Failed

In an elaborate evaluation, based in p art on EPA’s analysis in the 2010 RIA, Earthjustice makes predictions about the likelihood of States adopting EPA’s June 21, 2010 Subtitle D proposal. The analysis is so convoluted and subjective that it is difficult to analyze. However, a critique of its method is not necessary, because the conclusions it draws about States have already been proved
inaccurate.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Ag ency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgati ng in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.499



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 14 

### Organ ization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Ed Thamke Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1 

### Comment Excerpt Text:

Iowa

- Iowa was in the process of developing a proposal to regulate coal ash disposal when EPA published the proposed rule on June 21, 2010. Consequently, Iowa postponed its rulemaking pending the outcome of the EPA regulatory proposa l. [Footnote 46: E

- mail correspondence with Brian Tormey, Chief, Land Quality Bureau, Iowa Department of Natural Resources, November 10, 2011]

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 15 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Ed Thamke Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context A ssigned/Due: Other Sections: 7.4.2 

### Comment Excerpt Text: State Support for Federal Subtitle D Regulation

States have expressed overwhelming support for federal Subtitle D regulation of CCR. However, as demonstrated by Iowa’s experience, it is unlikely that States will proceed with regulations until it is clear what the course of federal regulation of CCR will be.

There are recent indications that States would adopt a federal proposal for Subtitle D regulation of CCR. There has been significant State s upport for the Coal Residuals Reuse and Management Act (H.R. 2273), which provides a federal framework for State regulation of CCR patterned after Subtitle D, Part 258 regulations. H.R. 2273 is considered more effective than EPA’s June 21,
2010 Subtitle D proposal, because, among other things, it provides for the implementation of State permitting programs.

Commonwealth of Virginia Governor Robert F. McDonnell wrote a letter of support for H.R. 2273 on October 11, 2011 recognizing that the bill’s State pe rmit program:500

“is a realistic approach to dealing with CCR and although it will require effort to implement in Virginia, ....it would provide the appropriate and necessary protection for Virginia’s environment and citizens ...” [emphasis added]

The Governo r’s letter acknowledges the required “effort to implement” the proposed permit program not only for its benefits to human health and the environment, but to avoid the negative impacts of Subtitle C regulation.

Numerous States wrote in support of H.R. 227 3. States have also expressed their support in their response to this NODA:

Ohio letter to RCRA Docket ID# EPA

- HQ

- RCRA

- 2011

- 0392 dated October 28, 2011:

“Ohio is supportive of a subtitle D regulatory approach either through U.S. EPA rule adoption or

pa ssage of the Coal Residuals Reuse and Management Act (HR 2273).”

Pennsylvania’s letter to Docket ID# EPA

- HQ

- RCRA

- 2011

- 0392 dated November 8, 2011:

“Pennsylvania’s experience is a testament to how well and how responsively the individual states
can and do regulate in this area. Indeed, as Pennsylvania’s experience with Chapter 290 demonstrates, the states are better and more agile at doing so than is the federal government, which is one of the main underpinnings of HR 2273 recently passed by the House of Representatives. HR 2273 would provide general management guidelines under which states would able to implement environmentally protective programs that meet individual state needs, a much better approach than designating a non

- hazardous material a hazard ous waste.”

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a d iscussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0284

- 3 

### Organization 1 

### : Alabama Department of Environmental Management (ADEM) 

### Commenter 1 : Wm. Gerald Hardy Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1 7.1.1.1 7.1.1.2 

### Comment Excerpt Text: As for the newly

- passed state law, not only did Alabama elect to regulat e coal ash as a solid501

waste effective immediately, it specifically authorized the future adoption and implementation of a federal regulatory program for disposal of CCR. Until such time as said federal program is adopted, the disposal of CCR would fall und er Alabama's existing solid waste requirements. Under these regulations, coal combustion by

- products are classified as an industrial solid waste and are subject to a hazardous waste determination. If determined to be non

- hazardous, the waste must be dispos ed of in accordance with ADEM's Solid Waste Program requirements for industrial waste. Landfills permitted to accept this type waste must be constructed with liner and leachate collection systems and must also conduct periodic groundwater monitoring.

Resp onse: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundmen ts. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how E PA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: TRANS

- ARL

- 0029

- 2 

### Organization 1 

### : Utility Solid Waste Activities Group 

### Commenter 1 : Pam Faggert Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: A major shortcoming, however, of the Subtitle D and D prime approach is the lack of any mechanism for the states to step in and administer the regulations. Where state regulatory programs meet or exceed the EPA proposed Subtitle D standards, it makes no sense to not allow these qualified state programs to administer the federal Subtitle D rules

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: TRANS

- LVL

- 0044

- 2 

### Organization 1 

### : Duke Energy Indiana 

### Commenter 1 : Bryan Walsh502

Commenter Type: Electric Utility Company
Classification: Substantive
Comment Cat egory: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: A major short

- coming, however, of either proposed Subtitle D approach is the lack of a mechanism for the states to step in and administer the regulation. Clearly, there are regulat ory programs that already meet or exceed the proposed Subtitle D standards. States with qualified programs should be given the option of administering the federal Stub

-- Subtitle D rules if they
so desire

Response: The Agency acknowledges and appreciate s the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Unit VI of t he preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans. 

# CommentWorks ® 

# Issue Report

Initiative: Coal Combustion Residuals Proposed Rule 

### Client Name: Agency 

### Sort Order: Group Number Selected Options 

### : Include Commenter Include Organization
Include Additional Commenters Include Additional Commenter Organizations Include Commenter Type
Include Classification Include Category
Include Task Include Flags
Include Comments
Preview as HTML Single File



### Number of Issues: 1503

Section 7.4.2

- Other Total Number of Submissions: 25 Total Number of Comments: 35



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 61 

### Organization 1 

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

### Commenter 1 : Paul L. Sloan Commenter Type: State Government Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Page 35173, Column 1: "Specifically, in addition to EPA placing sites on the NPL due to the disposal or indiscriminant placement of CCRs, at least 12 states have issued administ rative orders for corrective actions at CCR disposal sites."

This is clear evidence that states will take appropriate action if there is a legitimate problem or
threat to human health and the environment. It must also be noted that CCRs were not the sole or main contributing factor to a majority of these sites that are being placed on the NPL. This also adds regulation under Subtitle C is not warranted because EPA has other regulatory paths to pursue where there are threats to public safety and the environ ment. Releases from CCR disposal units can be controlled and mitigated under current CERCLA regulations and state statutes coupled with the new Subtitle D regulations to ensure proper management going forward.

Response: The Agency acknowledges and apprec iates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06400

- 14 

### Organization 1 

### : Waste Management (WM) 

### Commenter 1 : Susan Briggum Commenter Type: Other Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.4.7.4 4.4.7.7.2 4.8 4.2.3.1 4.2.3.2 4.2.6 10.5.2.3 

### Comment Excerpt Text: Subtitle D standards tailored to the characteristics of CCRs: EPA’s proposed liner and monitoring standards make sense and, as EPA demonstrates, will provide sound and reliable long

- term protection. The addition of a 4010 permit for CCR facilities provides the mechanism to respond to monitoring results and provide assurance of compliance.

EPA’s proposal, however, focuses largely on the absence of a permit and the co ncept that a licensed professional engineer’s judgment will take care of the details in terms of proper CCR504

handling. It makes much more sense for EPA to confer with the utility industry and their service providers, like ourselves, to identify specific fun damental performance criteria under a 4010 permit program. Proper handling of CCRs requires waste analysis to determine the specific characteristics of the particular waste stream (e.g., its potential for generation of hydrogen sulfide gas), its pH, water content and impact on slope stability, potential for heat generation and potential to clog leachate and gas collection lines. There needs to be a plan to handle the material in a way that controls dust, and uses the appropriate amount of moisture to contro l dust. Containment standards are necessary for transportation of dry CCRs.

It would be desirable for EPA to provide baseline criteria for waste acceptance and analysis to assure proper recognition of waste chemistry and physical characteristics. We real ize that because the record for this rulemaking has not focused on describing good operating practices, EPA may need to re

- propose a Subtitle D permit program specific to CCR only or to proposed modifications to the Subtitle D program tailored to the needs of CCR handling. In order not to delay progress, it would make sense for EPA to convene an advisory panel or work group of the regulated industry, Subtitle D service providers, state regulators (Illinois and Pennsylvania, for example, have developed stand ards regulating use and disposal of CCRs and would serve as resources for EPA)[Footnote 6: See, e.g., Pennsylvania Department of Environmental Protection, General Permit for Calcium Sulfate FGD material (physical testing an chemical analysis requirements, permeability requirements, distance to groundwater, mixture requirements, application and compaction requirements, monitoring, storage requirements, general operating standards, conditions for beneficial use, recordkeeping and reporting); Illinois Environm ental Protection Agency, Title 35, Subtitle B, Subchapter *, Part 816 (quality control procedures for CCR mixtures).] and experts in affected community and environmental groups. This group could engage in the kind of discussion that would allow EPA to re

- p ropose promptly a fully developed
standard.

Response: The Agency acknowledges and appreciates the comment.



### ___________________________________________________________________ Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06400

- 4 

### Organization 1 

### : Waste Management (WM) 

### Commenter 1 : Susan Briggum Commenter Type: Other Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 2.1.1 2.1.2 2.1.6 7.3.3 

### Comment Excerpt Text: Long

- term implications of EPA’s interpretation of its 4010 authority: Most of EPA’s rationale for considering RCRA Subtitle C regulation of CCRs derives wholly from its self

- imposed limitation on RCRA to provide EPA regulatory authority only for hazardous wastes and municipal solid waste (“MSW”) [Footnote 2: As EPA acknowledges, “the technical unit design and groundwater monitoring requirements that will effectively protect human health and the environment under either option are quite similar.” CCR Proposa l at 35159.]. This constrained505

reading of RCRA leaves EPA now and in the future with very little authority to meet RCRA’s mandate to protect human health and the environment. Under the rational of this rule, of the 7.6
billion tons of solid waste EPA estim ates to be in existence [Footnote 3: See http://www.epa.gov/osw/nonhaz/index.htm. ] , the Agency would have regulatory authority over only 46 million tons of hazardous waste (6.9 million tons of non

- wastewater) (CCR Proposal at 35172) and 250 million tons of MSW . This constitutes less than four percent of the wastes for which RCRA could provide protection.

This limitation is very shortsighted, and undervalues the important protections EPA and the states have afforded communities under RCRA authority. Our experience under the RCRA Subtitle C and D programs has been comparable; under both programs, we see state regulators bringing expertise and rigor to the task of permitting and overseeing hazardous waste and MSW landfills, assuring the facilities achieve R CRA’s goal of protecting human health and the environment [Footnote 4: For a recent assessment of the effectiveness of EPA’s regulatory program for MSW landfills, see http://www.wm.com/sustainability/pdfs/Geosyntec_report_

- _Environmental_Protection_at_the_ Managed_Solid_Waste_Landfill_06201.pdf.]. When EPA has provided the kinds of clear and detailed guidelines evident in the RCRA Subtitle C regulations and Subtitle D criteria for MSW landfills, state regulatory authorities responded with programs implementi ng the high siting, technical and operational standards EPA intended. The states assure those standards remain in force for the life of a facility’s permit, including the necessary post

- closure monitoring period. Through the approval process and as states revise their programs over the years, EPA Headquarters and, in particular, the Regions provide scrutiny, technical assistance and oversight.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06424

- 10 

### Organization 1 

### : Garrett & Moore, Inc. 

### Commenter 1 : Bernie Garrett Commenter Type: Other Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.7 7.1 

### Comment Excerpt Text: Consideration for Existing CCR Surface Impoundments and Existing CCR Landfills

Constructed with Engineered Liner Systems Obviously, the focus of the proposed rules are the older, unlined, existing CCR surface impoundments that were constructed 20 or more years ago absent of today’s environmental rules and construction standards. However, many existing CCR surface impoundments and existing CCR landfills have been permitted and constructed under current environmental rules that have required liners, leachat e collection systems, and other modern controls. The liners and leachate collection systems in these modern facilities were approved by state regulatory agencies and were deemed protective of human health and the environment. However, in many cases the lin er systems, leachate collection systems, or other506

controls, may not match the specific design criteria in EPA’s proposed rule. There should be provisions in EPA’s rules, allowing for the states, when adopting EPA’s rules, to “grandfather”
these modern exis ting CCR surface impoundments and existing CCR landfills.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D r ule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is
als o referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06424

- 3 

### Organization 1 

### : Garrett & Moore, Inc. 

### Commenter 1 : Bernie G arrett Commenter Type: Other Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 1.5 4.2.2 4.2.4 

### Comment Excerpt Text: State Adoption of EPA Rules

EPA should use the same methodology for regulating CCRs as was used in implementing the Subtitle D landfill rules for municipal solid waste. EPA should adopt rules setting a minimum standard, provide for the adoption of these rules by the states, and maintain enforcement authority for these rule s in states that EPA determines have not adequately implemented these
rules.

All subsequent comments are based on the assumption that EPA will allow for state adoption of the proposed rule. If EPA elects not to allow for state adoption of the proposed rul es, we request an additional public comment period to adequately address the proposed rules.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06832

- 22 

### Organization 1 

### : SCANA Corporation 

### Commenter 1 : Shirley M. Ruffin507

Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The EPA should use the same methodology for regulating CCRs as was used in implementing the Subtitle D landfill rules for municipal solid waste. The EPA should adopt rules setting a minimum standard, provide for the adoption of the rules by the states, and maintain enforcement authority for the rules in states that the EPA determines have not adequately implemented the
rules.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discus sion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agenc y is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 064 0

- 06832

- 26 

### Organization 1 

### : SCANA Corporation 

### Commenter 1 : Shirley M. Ruffin Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 5.5 5.6 

### Comment Excerpt Text: Consideration for Existing CCR Surface Impoundments and Existing CCR Landfills Constructed with Engineered Liner Systems

Obviously, the focus of the proposed rules are the older, unlined, existing CCR surface impoundments that were constructed 20 or more years ago absent of today’s environmental rules and construction standards. However, many existing CCR surface impoundments and existing CCR landfills have been permitted and constructed under current environmental rules that have required liners, leachat e collection systems, and other modern controls. The liners and leachate collection systems in these modern facilities were approved by state regulatory agencies and were deemed protective of human health and the environment. However, in many cases the lin er systems, leachate collection systems, or other controls, may not match the specific design criteria in the EPA’s proposed rule.

There should be provisions in the EPA’s rules, allowing for the states, when adopting the EPA’s rules, to grandfather modern existing CCR surface impoundments and CCR landfills.508

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule f or the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is
also ref erred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06833

- 3 

### Organization 1 

### : Dominion Resources Services, Inc. 

### Commenter 1 : Lisa J. Keck on behalf of Pamela Faggert Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Furthermore, we believe that the Subtitle D program should allow state regulatory agencies to administer the federal Subtitle D rule for CCRs, as well as rules regarding dam safety, to avoid duplication of federal and state efforts and to be protective of human health and the environment.

Response: The Agency a cknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter i s referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06833

- 9 

### Organization 1 

### : Dominion Resources Services, Inc. 

### Commenter 1 : Lisa J. Keck on behalf of Pamela Faggert Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Even though Dominion supports the development of federal non

- hazardous waste rules for CCRs
under the RCRA Subtitle D program, improvements to the proposed rule arc needed for any of the proposed Subtitle D options, including the D Prime option. These improvements should allow for administration by state regulatory agencies of the federal Subtitle D rules for CCRs to509

a void duplication of federal and state efforts, as called for by Congress in the Bevill Amendment. This would allow states to enforce compliance through a traditional permitting framework.

Response: The Agency acknowledges and appreciates the comment. T he commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06838

- 16 

### Organization 1 

### : Minnesota Pollution Control Agency (MPCA) 

### Commenter 1 : Lisa Mojsiej on behalf of Tim Scherkenbach Commenter Type: State Government Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.1 

### Comment Excerpt Text: Today's Co

- Proposed Regulations

- General:

The MPCA supports the USEPA's effort to establish national standards and minimum requirements for CCR disposal f acilities. Minnesota currently has a program that is protective of the environment and human health. However, not all states maintain similar standards. The USEPA should promulgate standards to ensure all future CCR disposal facilities are protective.

Re sponse: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06838

- 28 

### Organization 1 

### : Minnesota Pollution Control Agency (MPCA) 

### Commenter 1 : Lisa Mojsiej on behalf of Tim Scherkenbach Commenter Ty pe: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:510



### Comment Excerpt Text: If the Subtitle D option was promulgated, MPCA staff recommend the adoption of the requirements into state rule, but it is not necessary to continue permitting and regulating CCR
facilities in Minnesota.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06864

- 2 

### Organization 1 

### : Hull & Associates, Inc. 

### Commenter 1 : William G. Petruzzi Commenter Type: Other Company Classification: Substant ive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 2.1.2 

### Comment Excerpt Text: If the US EPA does choose to proceed with the initiative to regulate CCR as a solid waste, then CCR should be designated as a special class wit hin the SubTitle D regulations (i.e. such as a residual waste). As proposed, the current SubTitle D option has an underlying flaw that needs to be addressed by the legislature before anything can move forward

– currently there is no authority for the US EP A to enforce the program or to give the State the authority to enforce the rule under SubTitle D. Legislation will need to be passed by Congress to amend RCRA so that the material can be managed as a non

- hazardous solid waste under the State’s authority.
A dditionally, our recommendation would be that any Federal initiative establishes only general goals and objectives for the rule, but they should not contain specific design and compliance
criteria that will be better addressed at the State level. The obvio us reason for this is that a one size fits all approach is probably not workable

– the rules need to fit within each State’s own environmental protection programs. Taking into account and CCR characteristics, geological/hydrogeological conditions and/or ot her variables that need to be considered. This will allow States to control programs under their enforcement authority, and to provide for the flexibility for each State to consider developing programs that address the following guidelines:

1. Assure tha t all rules are based on sound engineering, science and economic principles.

2. Take a science

- based approach.

3. Apply equivalent standards for equivalent threats.511

4. Following a risk

- based approach.

5. Establishing a performance based approach.

6. Do not over or under regulate.

7. Consider retrofitting existing sites to meet performance standards rather than mandating the closure of existing sites and replacement with new sites.

8. Allow options for assessing sites and demonstrating equivale ncies rather than meeting specific technical specifications.

9. Focus on cost benefits.

10. Appreciate timing requirements for siting, design, permitting, and constructing new (or upgraded) units/facilities.

11. Explore additional beneficial use oppo rtunities.

12. Consider resource conservation.

13. Allow for technical demonstrations to support requests for variances and/or exclusions to allow for new technologies and products to be applied as technologies evolve and get introduced
to the market.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impo undments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

The commenter is also referred to Unit IV of the preamble for a discussion on our decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06912

- 14 

### Organization 1 

### : Sunflower Electric Power Corporation 

### Commenter 1 : Paul E. Reynolds Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/D ue:



### Comment Excerpt Text:512

In order to allow states to develop appropriate controls like those at SEPC’s Landfill without burdening facilities with one

- size

- fits

- all requirements, states must be given a role in implementing the Subtitle D option. It is ab solutely essential to recognize and allow for State administration of the Subtitle D option in order to avoid duplication with existing State programs and provide the Subtitle D option with the direct permitting mechanism EPA desires.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06912

- 17 

### Organization 1 

### : Sunflower Electric Power Corporation 

### Commenter 1 : Paul E. Reynolds Commenter Type: Electric Utility Company Cl assification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.1 

### Comment Excerpt Text: SEPC believes the best approach to regulating CCRs nationally is to develop regulations under Subtitle D, including a req uired permitting program that can be administered by states, with sufficient flexibility to consider local conditions.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06917

- 19 

### Organization 1 

### : Texas Commission on Environmental Quality (TCEQ) 

### Commenter 1 : Tangela Niemann on behalf of Mark R. Vickery Com menter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:513



### Comment Excerpt Text: The Subtitle D option, as compared with Subtitle C, is faster and less costly to implement, as
further discusse d below under "Impact of EPA Subtitle C Proposal on the state Permitting Program." EPA acknowledges that implementation of minimum standards can be achieved faster under Subtitle D than under Subtitle C. In addition, state administrative costs are much low er for Subtitle D than for Subtitle C (see costs from Table 1, 75 FR, June 21, 2010, page 35134 as amended on August 20, 2010 at 75 FR pp 51435). Planning and implementation of a Subtitle D solid waste program for CCRs would save federal resources because the states would be the primary authority to administer the program.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06917

- 35 

### Organization 1 

### : Texas Commission on Environmental Quality (TCEQ) 

### Commenter 1 : Tangela Niemann on behalf of Mark R. Vickery Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 9.3.7 

### Comment Excerpt Text: Administering RCRA Subtitle D offers cost benefits to the states, federal government, and CCR generators, as compared with Subtitle C.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the pre amble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical standar ds the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- R CRA

- 2009

- 0640

- 06921

- 28 

### Organization 1 

### : Associated General Contractors of America (AGC) 

### Commenter 1 : Melinda L. Tomaino Commenter Type: Trade Association514

Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: In the very beginning of the proposed rule, EPA states that the central issue is not whether subtitle D would adequately safeguard human health and the environment, rather it is whether states programs would be adequate. “The Agency would imp lement similar technical controls under RCRA subtitle C or D. Therefore, a central issue is the adequacy of State programs. Under either regulatory approach, State programs will have key implementation roles.” EPA observes that states do not have liner req uirements, yet, even so, “we also observe that nearly all new CCR landfills and surface impoundments are constructed with liners.” EPA seems to doubt that states would follow guidelines under subtitle D, yet the agency appears to contradict itself by then stating that “states have considerable expertise in their State dam safety programs” and that “those programs do not tend to be part of State solid waste or clean water act programs, and so, oversight may not be adequately captured in EPA’s existing data.” (See 75 FR 35133) DOE has summarized studies it conducted that show the improved management of coal combustion wastes at power plants nationwide. DOE also projects these safe practices to increase when states are “empowered” through subtitle D. (See EPA

- H Q

- RCRA

- 2009

- 0640

- 0084)

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in lan dfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the pream ble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06987

- 7 

### Organization 1 

### : Entergy Services, Inc. 

### Commenter 1 : Joseph Hantz Commenter Type: Electric Uti lity Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.2.2 4.5.1 

### Comment Excerpt Text: However, Entergy contends that the Subtitle D “Prime” option, as written, requires improvements, including allowing for administration of the federal Subtitle D rules for CCRs by state regulatory programs to avoid duplication of federal and state efforts. This would also allow states to enforce compliance through a traditional permitting framework. En tergy also believes that this option does not limit EPA’s enforcement authority, since sections 4003(a), 4010(c) and similar provisions of RCRA clearly allow EPA to oversee state rules regulating solid wastes. EPA already exercises this authority with muni cipal solid waste (MSW) landfills and non

- MSW landfills that may receive conditionally exempt small quantity generator hazardous waste.515

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the pre amble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the
technical standar ds the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- R CRA

- 2009

- 0640

- 07488

- 2 

### Organization 1 

### : Illinois Environmental Protection Agency 

### Commenter 1 : Scott O. Phillips Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.1 

### Comment Excerpt Text: However, if USEPA believes that uniform statewide regulations based on the RCRA model are warranted, Illinois EPA prefers the regulation of CCR under RCRA Subtitle D. The RCRA Subtitle D option is protective of human health and the en vironment, and would be less costly for Illinois to implement.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitl e D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter i s also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07488

- 4 

### Organization 1 

### : Illinois Environmental Protection Agency 

### Commenter 1 : Scott O. Phillips Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.1 

### Comment Excerpt Text:
A well

- run regulatory program based on the RCRA S ubtitle D option would provide comparable protection to human health and the environment at far less cost to the states.516

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussio n for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency i s promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 26 

### Organization 1 

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

### Commenter 1 : David B. Haldeman Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Othe r Sections: 7.3.3 

### Comment Excerpt Text: It would be helpful if EPA would clarify in its final rule how state voluntary cleanup programs might be used to address corrective action found necessary at CCR landfills under either a Subtitle C or Subtitle D app roach.

Response: The Agency acknowledges and appreciates the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07791

- 5 

### Organization 1 

### : Georgia Department of Natural Resources (GAEPD) 

### Commenter 1 : Jim Brown for Mark Smith Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.1.3 4.6.1.4 

### Comment Excerpt Text: EPA requests comment, at 75FR35148 and 35210, regarding a "D prime" regulatory option. Should EPA determine that national regulations are required, this is Georgia's preferred approach, to optimize both state resources and the limited funds available to th e regulated community. Under this approach, GAEPD would prioritize all operating surface impoundments based on remaining capacity, structural integrity, and groundwater contamination risk to determine which impoundments pose the greatest risk. Information provided by utilities in the state indicates that the majority of active ash ponds have 10

- 20+ years capacity/service life remaining. Using the corrective action authority in GAEPD's rules, those impoundments posing unacceptable hazards would be quickly mo ved to closure or retrofitting. While it may take many years to close all currently operating impoundments, those that continue to operate the longest will have proven they can do so in an environmentally safe manner. We estimate that two
additional full

- t ime staff (FTE) would be needed to handle the additional workload under the "D517

prime" scenario.

Georgia's second preference would be the Subtitle D approach, the majority of which is already incorporated into our Rules, as demonstrated below. Significantl y more staff would be required, due to the short timeframes proposed; current estimates are seven new FTEs. Little time would be available to prioritize sites. If the regulated community were unable to fully comply with the stringent deadlines proposed due to financial constraints, it is possible that high hazard sites may not be fully remediated; comment specifically requested at 75FR35199. Consequently, GAEPD considers that the extensive resources required to pursue this option are simply not warranted.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impou ndments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 80 

### Organization 1 

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

### Commenter 1 : Shari T. Wilson Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 4.5 

### Comment Excerpt Text: The approach like that used for 40 CFR 239, to implement 40 CFR 258 would present the fewest procedural difficulties.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 082 26

- 17 

### Organization 1 

### : Ohio Environmental Protection Agency 

### Commenter 1 : Chris Korleski Commenter Type: State Government518

Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.3.1 

### Comment Excerpt Text: The State of Ohio through two state agencies, Ohio EPA and the Ohio Department of Natural Resources, has current regulatory programs overseeing the disposal of CCR in surface impoundments and landfills, including dam safety requirements. Adoption of the su btitle C option would impart undue disruption, burden and costs on Ohio by forcing the agencies to
recreate, re

- distribute and re

- adopt a regulatory program that is already established and implemented in Ohio. It is a waste of limited state resources to ex pend man hours on recreating an existing state regulatory program. However, the subtitle D approach to the regulation of CCR can be incorporated into Ohio’s existing regulatory programs in a cost effective manner.

Response: The Agency acknowledges and a ppreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Uni t VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08251

- 43 

### Organization 1 

### : Massachusetts Department of Environmental Protection 

### Commenter 1 : James C. Colman Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 9.3.1 

### Comment Excerpt Text: In general, the cost of implementing a Subtitle C program will be much higher than the cost of implementing a Subtitle D program. Impl ementation cost for a Subtitle D program should be relatively low for most states that have an established Subtitle D solid waste program. As stated previously, Massachusetts already has solid waste regulations that are equivalent to or more stringent than the proposed EPA regulations. Those regulations would require few, if any, modifications to be implemented under a federal CCR program. Existing landfills in Massachusetts that already manage CCR are permitted and would therefore have few, if any,
additio nal costs to come into compliance with the proposed Subtitle D approach. MassDEP has a solid waste program that reviews landfill permit applications. The landfills currently being used for CCR disposal in state meet or exceed design standards proposed by E PA. Therefore, the cost of implementing the Subtitle D proposed rules would be minimal.519

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Fur thermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0196

- 1 

### Organization 1 

### : Alaska Depar tment of Environmental Conservation (ADEC) 

### Commenter 1 : Kristin Ryan Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1 

### Comment Excerpt Text: In accordance with section VII, paragraph 1 of the NODA, the ADEC is providing comments on a report regarding purported gaps in state regulatory programs for CCRs that was submitted to the EPA by Earthjustice, Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, and Physicians for Social Responsibility (document no. EPA

- HQ

- RCRA

- 2009

- 0640

- 6315).

The ADEC has two primary concerns with the subject report. Our f irst concern is that in Table 28 (page 48) Alaska is erroneously listed among the states that are NOT expected to implement new Subtitle D standards for CCR facilities. We find this interesting because Alaska intends to revise its approved Subtitle D progr am as needed to comply with any revisions to 40 CFR 258. (Please note that Alaska was the first state in Region 10 to revise its Subtitle D program to adopt the Research, Development, and Design regulations of 40 CFR 258.4.) We understand that Table
28 is pulled from another source; but verifying Alaska's intent required nothing more than a telephone call to the ADEC. This step should have been considered necessary because Alaska is not included in the analysis of state programs represented by Tables 1 thro ugh 27 in the report, nor is Alaska mentioned in the purported source document on which Table 28 is based. The ADEC is very concerned over the fact that the authors are willing to report as fact something that they have neither researched nor attempted to verify. Such action raises significant doubts about the accuracy and validity of the entire report.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s ra tionale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in thi s rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.520



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0196

- 3 

### Organization 1 

### : Alaska Department of Environmental Conservation (ADEC) 

### Commenter 1 : Kristin Ryan Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.4.1.1.2 4.4.5.1.1 

### Comment Excerpt Text: In closing these comments, the ADEC confirms that if and when a national standard is implemented, Alaska intends to revise its regulatory program for CCRs to comply with that standard. In this regard, the ADEC reminds the EPA that our comments on th e proposed regulations (see docket no. EPA

- HQRCRA

- 2009

- 0640

- 6409) included a request for flexibility in the liner requirements specified under both the proposed Subtitle C and Subtitle D options. Flexibility is needed because the prescribed composite line r cannot be built in Alaska due to a general lack of soil material with a hydraulic conductivity meeting the standard for the composite liner. Alaska envisions the same level of flexibility that is allowed under 40 CFR 258.40(a) and (c).

Response: The Ag ency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The comme nter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect sta tes to incorporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0238

- 11 

### Organization 1 

### : Southern Company 

### Commenter 1 : Chris Hobson Commenter Type: Electric Utility Company Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: 2. Likelihood of State Adoption of Federal Standards

The NGO Comments discuss at length EPA’s 2010 RIA [Footnote 34: Office of Res. Conservation & Recovery, U.S. EPA, Regulato ry Impact Analysis for EPA’s Proposed RCRA Regulation of Coal Combustion Residues (CCR) Generated by the Electric Utility Industry (Doc.
No. EPA

- HQ

- RCRA

- 200909640

- 0003) (Apr. 2010).] regarding EPA’s analysis that many states will not adopt the federal crit eria for regulation of CCBs if EPA adopts its Subtitle D option as521

opposed to its Subtitle C option. The NGOs assert that EPA actually overestimated the number of states that will implement regulations that are consistent with Subtitle D. [Footnote 35: NGO Comments, supra note 20, at 47.] This argument relates to the nature of the authority provided by Congress to EPA under RCRA Subtitle D. For example, EPA stated in its 2010 proposed rule that “the Agency is reticent to establish a regulatory program witho ut any federal oversight.” [Footnote 36: 75 Fed. Reg. at 35128, 35157 (June 21, 2010).] First, both EPA and the NGOs mischaracterize the efficacy of the state programs. Second, EPA ignores aspects of its regulatory authority under Subtitle D.

EPA and the NGOs refer to states that have not developed RCRA

- type regulations for CCBs and then predict whether states will implement regulations consistent with Subtitle D if EPA does, in fact, adopt a Subtitle D program for CCBs. However, as Southern Company has d emonstrated in its prior comments, [Footnote 37: Southern Company Comments, supra note 2, at 19

- 20.] reference to the status quo is not predictive in the context of CCB state regulation because EPA has not promulgated regulatory standards for CCBs, and, un der the Bevill Amendment, states are not required to take action until EPA provides regulatory direction. The more important question is what states will do in the event EPA does adopt Subtitle D standards. The only way to assess this is to review states’ responses to Subtitle D standards in the past. If EPA has issued Subtitle D guidance for solid waste streams for which EPA lacked direct enforcement authority, and states and industry have failed to respond in a manner EPA deems appropriate, that set of fa cts may inform deliberations on the question of how states would respond to Subtitle D standards for CCBs. EPA has not assessed that issue. Instead, EPA assessed state performance in an area where EPA itself has had authority to take regulatory action for more than thirty years and has declined to do so. Accordingly, EPA and the NGOs have no basis for predicting whether, in the context of Subtitle D regulation for CCBs, states will adopt regulations consistent with Federal Subtitle D policy.

EPA and the N GOs assume, with no supporting evidence, that under a Subtitle D program, there will be “less compliance” than under a Subtitle C program. EPA implies that it “cannot rely” on the Subtitle D mechanisms, because “[u]nder these provisions of RCRA, EPA lacks the authority to require state permits, approve state programs, and to enforce the criteria.” [Footnote 38: 75 Fed. Reg. at 35194.] EPA and the NGOs underestimate EPA’s enforcement authority under a Subtitle D regulatory program.

Accordingly, EPA is not justified in referencing the status of state authorizations when EPA has failed to issue federal standards as a justification for adopting a Subtitle C program.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discussio n of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.522



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0238

- 13 

### Organization 1 

### : Southern Company 

### Commenter 1 : Chris Hobson Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: 4. States’ Position on Regulation

One commenter notes that many states showed no overall preference for EPA’s proposed regulations under Subtitle D or the D Prime regulatory option. [Footnote 42: Comments of
Association of State and Territorial Sol id Waste Management Officials (ASTSWMO), Doc. No.
EPA

- HQ

- RCRA

- 2009

- 0640

- 8787, at 26.] While Southern Company concurs that Subtitle C regulation is not warranted, the states’ overall position on this point is insignificant, in that most
states believe that their own regulations are already mostly compatible with or more stringent than such regulations, which that commenter recognizes. [Footnote 43: Id. at 24 (“When State regulators were recently asked whether existing State standards/regulations for non

- MSW facilities are mostly compatible with or more stringent than the existing [40 CFR] Part 257 minimum standards, 47 out of 47 States responded “yes.”)] In other words, the states are generally comfortable that their regulations would comply with either Subti tle D or D Prime regulation. That, however, is not helpful in distinguishing the relative advantages and disadvantages of the Subtitle D proposal and the D Prime option.

Southern Company reiterates that while it does not support additional Federal CCB re gulation, of the three options presented by EPA in its 2010 proposed rule, EPA should adopt a modified Subtitle D Prime regulatory program, as opposed to either a Subtitle C or Subtitle D regulatory program. Subtitle D Prime regulation would allow utilitie s to continue to use existing surface impoundments for the impoundments’ useful life, which is critical to utilities from a cost and timing perspective and is also the environmentally preferable option.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules i nto state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0265

- 17 

### Organization 1 

### : Department of Environmental Quality, State of Wyoming 

### Commenter 1 : John Corra Commenter Type: State Government523

Classification: Substantive
Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: In Table 28 page 48, comments submitted to EPA by Earthjustice et al state that Wyoming is not expected to implement Subtitle D requirements. This statement is incorrect. Wyomin g believes that its existing requirements for CCR landfills are already substantially equivalent to Subtitle D and little or no changes to our rules should be necessary to implement EPA's proposed Subtitle D regulation of CCRs.

Response: The Agency ackn owledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
The commenter is r eferred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to

in corporate the CCR rules into state solid waste management plans.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 15 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

### Commenter 1 : Ed Thamke Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.4.1 

### Comment Excerpt Text: State Support for Federal Subtitle D Regulation

States have expressed overwhelming support for fede ral Subtitle D regulation of CCR. However, as demonstrated by Iowa’s experience, it is unlikely that States will proceed with regulations until it is clear what the course of federal regulation of CCR will be.

There are recent indications that States wou ld adopt a federal proposal for Subtitle D regulation of CCR. There has been significant State support for the Coal Residuals Reuse and Management Act (H.R. 2273), which provides a federal framework for State regulation of CCR patterned after Subtitle D, P art 258 regulations. H.R. 2273 is considered more effective than EPA’s June 21, 2010 Subtitle D proposal, because, among other things, it provides for the implementation of State permitting programs.

Commonwealth of Virginia Governor Robert F. McDonnell wrote a letter of support for H.R. 2273 on October 11, 2011 recognizing that the bill’s State permit program:524

“is a realistic approach to dealing with CCR and although it will require effort to implement in Virginia, ....it would provide the appropriate an d necessary protection for Virginia’s environment and citizens ...” [emphasis added]

The Governor’s letter acknowledges the required “effort to implement” the proposed permit program not only for its benefits to human health and the environment, but to avo id the negative impacts of Subtitle C regulation.

Numerous States wrote in support of H.R. 2273. States have also expressed their support in their response to this NODA:

Ohio letter to RCRA Docket ID# EPA

- HQ

- RCRA

- 2011

- 0392 dated October 28, 2011:

“Oh io is supportive of a subtitle D regulatory approach either through U.S. EPA rule adoption or passage of the Coal Residuals Reuse and Management Act (HR 2273).”

Pennsylvania’s letter to Docket ID# EPA

- HQ

- RCRA

- 2011

- 0392 dated November 8, 2011:

“Pennsylv ania’s experience is a testament to how well and how responsively the individual states can and do regulate in this area. Indeed, as Pennsylvania’s experience with Chapter 290 demonstrates, the states are better and more agile at doing so than is the feder al government, which is one of the main underpinnings of HR 2273 recently passed by the House of Representatives. HR 2273 would provide general management guidelines under which states would able to implement environmentally protective programs that meet i ndividual state needs, a much better approach than designating a non

- hazardous material a hazardous waste.”

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.525



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0276

- 3 

### Organization 1 

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

### Commenter 1 : Michael Nasi Commenter Type: Trade Association Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: III. The Environmental Groups' Comments incorrectly assume that numerous states would choose not to, or be unable to, enact the Subtitle D program as proposed.

EPA assumed in its propose d rule that under the proposed Subtitle D option, only those states that currently impose groundwater monitoring on new surface impoundments will be the states that will adopt the program. [Footnote 26: U.S. Environmental Protection Agency, Regulatory Impa ct Analysis for EPA's Proposed RCRA Regulation of Coal Combustion Residues (CCR) Generated by the Electric Utility Industry, 124 (Apr. 30, 201 0).] The result is an assumed compliance rate of only 48%. [Footnote 27: Id.] The Environmental Groups take this incorrect assumption further by asserting that the Subtitle D compliance rate will be even lower and go so far as to say that "state programs are incapable of adequately regulating the disposal of coal ash." [Footnote 28: Environmental Groups' Comments at 49.] Beyond this one calculation based on one element of a CCR regulatory program (i.e. monitoring at new surface impoundments), neither the EPA nor the Environmental Groups have adequately provided any other justification for why states will not comply at higher rates.

The Environmental Groups appear to be more concerned with the lack of direct federal enforceability under a Subtitle D option than actual compliance itself. In addition to overlooking the fact that many of the states already enact similar/ comparable programs to the proposed Subtitle D programs, the Environmental Groups also fail to adequately account for the motivation of the states to protect their citizens and resources. The states are not adversarial to these goals and the states have th e same motivation and statutory charges as the EPA to guarantee these protections. It makes no logical sense to allege that the states would jeopardize
the health of their citizens.

The states are the ones that know best whether they will comply with and fully administer a Subtitle D program, and their positions should be accorded deference. According to ASTSWMO:

When State regulators were recently asked whether existing State standards/regulations for non

MSW facilities are mostly compatible with or mo re stringent than the existing Part 257 minimum standards, 47 out of 47 States responded "yes." [Footnote 29: Comments filed by the Association of State and Territorial Solid Waste Management, 24 (Nov. 19, 2010), EPA Docket Nos. EPA

HQ

- RCRA

- 2009

- 0640

- 3936; EPA

- HQ

- RCRA

- 2009

- 0640

- 8787).]

..... While it may be other State agencies that have enforcement authority for surface impoundments, 43 out of 44 States indicated that they coordinate with the enforcing entities to require that steps are taken to protect hu man health and the environment. This high level of involvement by State526

waste programs is good evidence that if national waste management standards for CCR were promulgated, States would adopt those standards just as they have adopted the Part 257
standard s. [Footnote 30: Id. at 24

- 25.]

In an even clearer declaration of the states' willingness and ability to comply with a Subtitle D option, the ECOS coal ash resolution, attached to ECOS' comments submitted in this docket, clearly outline the states' posit ion regarding the necessity of proposing a state

- administered Subtitle D program over a Subtitle C program and the states' ability to comply with and administer a Subtitle D program. The ECOS resolution includes the following conclusions:

[ECOS a]grees w ith U.S. EPA's finding in the 2005 study previously cited that "the regulatory infrastructure is generally in place at the state level to ensure adequate management of these wastes" and believes that states should continue to be the principal regulatory au thority for regulating CCW as they are best suited to develop and implement CCW regulatory programs tailored to specific climate and geological conditions designed to protect human health and the environment;

[ECOS b ]elieves that the adoption and implem entation of a federal CCW regulatory program would create an additional level of oversight that is not warranted, duplicate existing state regulatory programs, and require additional resources to revise or amend existing state programs
to conform to new fe deral regulatory programs and to seek U.S. EPA program approval;

[ECOS c]alls upon U.S. EPA to conclude that additional federal CCW regulations would be duplicative of most state programs, are unnecessary, and should not be adopted, but if adopted
must b e developed under RCRA SubtitleD rather than RCRA Subtitle C. [Footnote 31: Comments of the Environmental Council of the States, Nov. 19,2010, EPA Docket No. EPA

HQ

- RCRA

- 2009

- 0640

- 4003 and EPA

- HQ

- RCRA

- 2009

- 0640

- 8854.]

Ultimately, there is no need for c onjecture on whether the states would comply with and implement a Subtitle D CCR program. The states have been asked and the states have answered

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state527

programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0277

- 4 

### Organization 1 

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

### Commenter 1 : Henry Darwin Commenter Type: State Government Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 7.1 7.3.1 

### Comment Excerpt Text: Through these requirements implemented by ADEQ, Arizona has a strong regulatory framework in place to protect human health and the environment concerning CCR man agement units. EPA should not promulgate new CCR regulations that would adversely impact proven state regulatory programs like those that already exist in Arizona.

Response: The Agency acknowledges and appreciates the comment. The commenter is
referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments. The commenter is referred to Unit VI of the preamble for a presentation and discuss ion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA expect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the fina l subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relating to the accuracy of the facts involved in the damage cases. EPA has not, howeve r, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to support any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0280

- 5 

### Organization 1 

### : Strategic Environmental Analysis, LC 

### Commenter 1 : Richard Fortuna Commenter Type: Other Company Classification: Substantive Comment Category: Current Task: Examine Context Assigned/Due: Other Sections: 3.1.1 7.3.3 

### Comment Excerpt Text: The states are in no position to take this one on alone. They are simply too leveraged by an528

industry that provides vital services, and which has gotten used to having their own way on this issue for 3 decades. What the Agency is wi tnessing from the electric utilities in the CCR Proposal is no different than what the chemical industry was doing at the time of Superfund’s consideration: current managements are simply trying to kick the can down the road by deferring liability/expendit ures for current and past mismanagement and corner

- cutting until the next management team takes over. No one wants to take the economic and/or liability hit for years or lax environmental management on their watch. The pressure to perpetuate this “deferred liability scheme” is most directly visited upon their local and state governments. Absent a strong RCRA regulatory mandate such as was contained in the Proposal, the states will be left to fend for themselves but few tools to prevent the next Kingston. Fo r the sake of the residents near these 230+ facilities, and in order to give the states the tools they truly need to fend off an unrelenting faction, the Agency must regulate CCRS as a RCRA “hazardous waste” with all due speed.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

T he commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion on how EPA ex pect states to incorporate the CCR rules into state solid waste management plans.

Moreover, b ecause EPA is deferring its final Bevill Determination, EPA has not responded to comments that pertain exclusively to that issue. However EPA has responded to significant comments that relate to topics that are otherwise relevant to the final subtitle D regulation. For example, because EPA is relying on the damage cases to support certain aspects of the technical requirements, EPA has responded to comments relat ing to the accuracy of the facts involved in the damage cases. EPA has not, however, responded to many comments on state programs because the Agency has made no final conclusions on the adequacy of those programs and is not relying on state programs to sup port any of the final rule’s provisions.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0286

- 2 

### Organization 1 

### : FirstEnergy Corp. 

### Commenter 1 : Mike Horvath Commenter Type: Electric Utility Company Classification: Substantive Comment Category: Current Task: Examine Co ntext Assigned/Due: Other Sections: 7.3.3 

### Comment Excerpt Text: FirstEnergy comment: Of the 35 states whose submittals are available in this NODA, it is important to note that all but one state, New Mexico, reject the concept of regulating coal combustion products as RCRA C hazardous waste. FirstEnergy agrees with the comments of those 34 states that RCRA C regulation is unnecessary. Regarding the position of New Mexico, we support any state529

determination that their state regulations should go beyond the RCRA D nationally favored baseline approach to coal combustion byproduct regulation . I deally, every state has the right to determine the level of required regulation of their own state wastes and wastes they accept from other states to protect the environment and to consider the geographical, geological, and hydrologic aspects of that state

.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule for the disposal of CCR in landfills and surface imp oundments. The commenter is referred to Unit VI of the preamble for a presentation and discussion of the technical standards the Agency is promulgating in this rule. Furthermore, the commenter is also referred to Unit IX of the preamble for a discussion o n how EPA expect states to incorporate the CCR rules into state solid waste management plans.